Citation Nr: 1329351 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-34 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine. 3. Entitlement to a disability rating in excess of 10 percent from December 31, 2009; in excess of zero percent from November 4, 2011; and in excess of 30 percent from November 15, 2012 for cervical radiculopathy (ulnar and median neuropathy) of the left upper extremity associated with DDD of the cervical spine. 4. Entitlement to a disability rating in excess of 10 percent from December 31, 2009; in excess of zero percent from November 4, 2011; and in excess of 40 percent from November 15, 2012 for cervical radiculopathy (ulnar and median neuropathy) of the right upper extremity associated with DDD of the cervical spine. 5. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy effective November 15, 2012. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from April 1981 to April 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), Atlanta, Georgia, and Seattle, Washington. Jurisdiction of this matter is currently with the RO located in Atlanta, Georgia. Service connection for cervical and lumbar spine disabilities was granted by the RO in November 2008, and an initial 20 percent disability rating was assigned for each disability, effective as of December 14, 2007. By rating action in July 2009, the RO determined there was clear and unmistakable error (CUE) in the November 2008 rating action which assigned a 20 percent evaluation for DDD, lumbar spine. The 20 percent evaluation for DDD, lumbar spine was raised to 40 percent effective December 14, 2007. By rating action dated in April 2012, the RO awarded separate disability ratings for neurological manifestations of the cervical spine affecting each upper extremity. A separate 10 percent disability rating was assigned for each upper extremity from December 31, 2009, and a noncompensable disability rating was assigned from November 4, 2011. In October 2012, the Board remanded the appeal for further development. In a February 2013 rating decision, the RO increased the disability rating for cervical radiculopathy (ulnar and median neuropathy), right upper extremity, from 0 percent disabling to 40 percent effective November 15, 2012; and, the disability rating for cervical radiculopathy (ulnar and median neuropathy), left upper extremity, from 0 percent disabling to 30 percent effective November 15, 2012. In addition, the February 2013 rating decision granted service connection for right lower extremity radiculopathy with an evaluation of 20 percent effective November 15, 2012. As this issue is part and parcel of the initial rating claim on appeal, the Board has taken jurisdiction over it, as reflected on the title page of this decision. In April 2013 this case was remanded by the Board for additional development and has now been returned to the Board. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issues of disability ratings greater than assigned, therefore, the issues remain in appellate status as set forth above. The Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, however, the record does not suggest, and the Veteran does not allege, that her service connected disabilities have rendered her unemployable. Accordingly, entitlement to TDIU is not for consideration at this time. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's lumbosacral DDD is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. Since December 14, 2007, the Veteran's cervical DDD is not shown to have been manifested by forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine. 3. From December 31, 2009 to November 4, 2011, the Veteran's cervical radiculopathy (ulnar and median neuropathy) of the left upper extremity is shown to be no more than mild; from November 4, 2011 through November 14, 2012, it is shown to be non-symptomatic; and from November 15, it is shown to be severe. 4. From December 31, 2009 to November 3, 2011, the Veteran's cervical radiculopathy (ulnar and median neuropathy) of the right upper extremity is shown to be no more than mild; from November 4, 2011 through November 14, 2012, it is shown to be non-symptomatic; and from November 15, it is shown to be no more than moderate in degree. 5. From November 15, 2012 the Veteran's right lower extremity radiculopathy associated with DDD of the lumbar spine is shown to be moderate in degree. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating for lumbosacral DDD, currently evaluated as 40 percent disabling from December 14, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a higher initial rating for cervical DDD, currently evaluated as 20 percent disabling from December 14, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). 3. The criteria for higher ratings for cervical radiculopathy (ulnar and median neuropathy) of the left upper extremity associated with DDD of the cervical spine, evaluated as 10 percent disabling from December 31, 2009 through November 3, 2011; noncompensable from November 4, 2011 through November 14, 2012; and as 40 percent disabling from November 15, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8516 (2012). 4. The criteria for higher ratings for cervical radiculopathy (ulnar and median neuropathy) of the right upper extremity associated with DDD of the cervical spine, evaluated as 10 percent disabling from December 31, 2009 through November 3, 2011; noncompensable from November 4, 2011 through November 14, 2012; and as 30 percent disabling from November 15, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8516 (2012). 5. The criteria for a higher rating for right lower extremity radiculopathy evaluated as 20 percent from November 15, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.124a, Diagnostic Code 8620 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claims arise from an appeal of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA as to these issues. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him/her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, her statements in support of the claims are of record. The Board has carefully reviewed such statements and concludes that no additional available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Also, the Veteran was afforded VA examinations, most recently in November 2012, to evaluate the severity of her lumbar and cervical back, and peripheral nerve disabilities. The April 2013 Board remand returned the case to the examiner for preparation of an addendum opinion. This was provided in a July 3, 2013 VA medical addendum opinion. The Board finds that the VA examinations and addendum opinion are adequate because, as shown below, they were based upon consideration of the pertinent medical history, her lay assertions and current complaints, and because it describes the lumbar and cervical spines and peripheral nerve symptomatology in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that her lumbar and cervical back, and peripheral nerve symptoms have materially increased in severity since the most recent evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria Initially, the Board notes all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet App 119, 125-26 (1999), however, the U.S. Court of Appeals for Veterans Claims (Court) distinguished appeals involving a veteran's disagreement with the initial rating assigned at the time a disability is service-connected. Accordingly, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See id. at 126-27. Moreover, the Board notes, the Court recently held that in claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for higher initial staged evaluations, the Board has considered all evidence of severity since the effective date for the award of service connection from December 14, 2007, and subsequent ratings to the present time. The Board's adjudication of this claim accordingly satisfies the requirements of Hart. Disabilities of the spine Disabilities of the spine are evaluated under a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The criteria of the General Rating Formula are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The General Rating Formula pertinent to the lumbosacral and cervical spines provide a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm and guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A rating of 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion is 0 to 45 degrees, and left and right lateral rotation is 0 to 80 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right later rotation is 0 to 30 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. General Rating Formula, Note (2). Intervertebral Disc Syndrome (IVDS), Code (5243), is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS) Formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two week but less than four weeks during the past twelve months, a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, Code 5243. VA regulations provide that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula Note (1). When evaluating musculoskeletal disabilities, VA must, in addition to applying schedular criteria, consider functional loss of a joint due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 (regarding arthritis) are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Cervical radiculopathy (ulnar and median neuropathy) of the upper and lower extremities The Veteran's service-connected cervical radiculopathy (ulnar and median neuropathy) of the right and left upper extremity have been rated under 38 C.F.R. § 4.124a, Code 8516 (peripheral disease of upper radicular group (ulnar and median nerve)). The right lower extremity radiculopathy has been rated pursuant to 38 C.F.R. § 4.124a, Code 8620 (peripheral disease of lower radicular group (sciatic nerve)). The rating schedule for the upper radicular group distinguishes between the major (dominant) and minor (non- dominant) extremity. Medical records show the Veteran to be right-handed, so the right upper extremity is rated under the criteria for major extremity. Under Diagnostic Code 8516, mild incomplete paralysis warrants a rating of 10 percent for either extremity (major or minor). Moderate incomplete paralysis warrants a rating of 20 percent for the minor extremity and 30 percent for the major extremity. Severe incomplete paralysis warrants a rating of 30 percent for the minor extremity and 40 percent for the major extremity. Complete paralysis of upper radicular group (ulnar nerve) warrants a rating of 50 percent for the minor extremity and 60 percent for the major extremity. 38 C.F.R. § 4.124a, Code 8516. Under Diagnostic Code 8620, mild incomplete paralysis of the sciatic nerve warrants a rating of 10 percent for either extremity. Moderate incomplete paralysis warrants a rating of 20 percent. Moderate severe incomplete paralysis warrants a rating of 40 percent. Severe incomplete paralysis with marked muscular atrophy warrants a rating of 60 percent. Complete paralysis of lower radicular group (sciatic nerve) warrants a rating of 80 percent. 38 C.F.R. § 4.124a, Code 8620. The terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. For reference, "complete paralysis" of the upper radicular group (fifth and sixth cervicals) is specifically defined as all shoulder and elbow movements lost or severely affected but hand and wrist movements not affected. Complete paralysis of the middle radicular group is defined as adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected. Complete paralysis of the lower radicular group is defined as paralysis of all intrinsic muscles of hand and some or all flexors of wrist and fingers (substantial loss of use of hand). See 38 C.F.R. § 4.124a, Codes 8510, 8511 and 8512. A note to 38 C.F.R. § 4.124 states that "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. The ratings for the bilateral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. III. Background At an October 2008 VA examination, the Veteran reported being injured in a motor vehicle accident during service. She was treated for a lumbar spine injury. Her current diagnoses were central disk protrusion L5/S1 with broad based disk protrusion L4/L5, multi level degenerative changes and stenosis L4/S1. She also suffered a soft tissue contusion of the cervical spine in service. The Veteran complained of cervical spine pain and stiffness daily at the level of 8 on a scale of 10, with 1 to 2 weekly flare-ups. She used no mechanical aids to ambulate. She reported no incapacitating episodes within the last 12 months. She also reported shooting pain and stiffness in the lumbar spine with daily flare-ups at the level of 10/10. The pain radiated to both legs and she had tingling in her feet. The pain increased with prolonged standing, sitting, and walking. Physical examination revealed no peripheral edema, clubbing, or cyanosis. There was good muscle strength 5/5 in the extremities. There was no wasting. The dermatome was intact from C3-S1. There was cervical spine tenderness to palpation. The Veteran had a normal gait and used a cane to ambulate. Cervical spine flexion was to 30 degrees with pain; extension to 10 degrees; right and left lateral flexion to 30 degrees; and, right and left rotation were to 50 degrees with pain. The lumbar spine had normal curvature. There was tenderness to palpation. The Veteran required assistance getting on and off the table. Left leg raising was to 30 percent with pain and right leg raising was to 10 percent. Flexion of the lumbar spine was to 30 degrees; extension was to 5 degrees; right and left lateral flexion was to 20 degrees; and, right and left rotation was to 10 degrees. There was pain at the endpoints of motion. There was no decrease in range of motion of the cervical or thoracolumbar spines due to pain, fatigue, weakness, lack of endurance, or incoordination with repetition. Following the examination, the Veteran was diagnosed with multilevel severe DDD, cervical spine with significant spinal canal stenosis secondary to a large extrusion and bony disk osteophyte complex with cord effacement and neural foramina stenosis with radiculopathy; and, DDD, lumbar spine with neural foramina stenosis secondary to inferior osteophytes, posterior facet disease, with mild degenerative anterolithesis with radiculopathy. The examiner opined that the current spinal disabilities were related to treatment for lumbar strain and soft tissue injury/contusion of the cervical spine following a motor vehicle accident in March 1985. In December 2009 the Veteran underwent a VA EMG study that revealed problems with numbness and tingling of the fourth and fifth fingers bilaterally. A copy of the EMG results indicated polyradiculopathy and C5-C6 and C8 distribution. There was very mild median neuropathy, right wrist. An April 2011 VA neurosurgery consultation noted cervical stenosis and increased difficulty holding objects, poorer handwriting, and increased difficulty with fine motor skills. The Veteran had consistently refused surgery. On a November 2011 VA examination, the range of motion (ROM) studies of the thoracolumbar spine revealed flexion was to 60 degrees; extension was to 30 degrees; left and right lateral flexion was to 30 degrees; and, right and left lateral rotation was to 30 degrees. Flexion produced pain at the endpoint of motion. There was tenderness over the lower back with guarding. ROM studies revealed cervical spine flexion to 35 degrees; extension was to 40 degrees; right and left lateral flexion was to 40 degrees, respectively; and, right and left lateral rotation was to 60 degrees, all with pain at the endpoint of motion. There was tenderness over the cervical spine with guarding. There was no decrease in range of motion of the cervical or thoracolumbar spines due to pain, fatigue, weakness, lack of endurance, or incoordination with repetition. There was also no abnormal gait. Strength was uniformly 5/5. There was no atrophy, and the sensory examination was normal. The Veteran was noted to regularly use a cane. In April 2012 the RO asked the examiner to clarify whether there were signs of radiculopathy indicated by mild parasthesias and/or dysesthesia and numbness of the right and left upper extremities. The examiner stated via addendum that the neuropathy was subjective, as reported by the Veteran and that no noted peripheral neuropathy or nerve involvement was shown by examination. At a November 2012 VA examination ROM studies revealed cervical spine flexion to 35 degrees; extension was to 40 degrees, right and left lateral flexion was to 40 degrees; and, right and left lateral rotation was to 60 degrees. All motion was accompanied by pain. There was tenderness over the cervical spine with guarding. The Veteran was noted to have signs of radiculopathy. Upper extremity peripheral neuropathy with severe incomplete paralysis of the ulnar nerve with evidence of parasthesias, dysesthesia, and numbness, involvement of the root nerve, C5/C6 upper radicular group; moderate, incomplete paralysis of the sciatic nerve was noted. The Veteran had IVDS of the cervical spine. She had no incapacitating episodes. However the cervical spine disorder impacted on her ability to work. The ROM studies of the thoracolumbar spine revealed flexion to 90 degrees; extension was to 30 degrees; right and left lateral flexion was to 30 degrees; and, right and left lateral rotation was to 30 degrees. There was tenderness to palpation with guarding. The examiner indicated that there was evidence of involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on the right, which was moderate. There was no left extremity involvement noted. There was no decrease in range of motion of the cervical or thoracolumbar spines due to pain, fatigue, weakness, lack of endurance, or incoordination with repetition, and no functional loss or impairment. This did not cause an abnormal gait. Strength was uniformly 5/5. There was no atrophy, and the sensory examination was normal. The Veteran was noted to regularly use a cane. The diagnosis was cervical stenosis with early myelopathy, severe; severe spinal stenosis C4-5; DDD, cervical spine; lumbar stenosis with right lower extremity radiculopathy. A peripheral nerve examiner noted that the Veteran was diagnosed with cervical stenosis with early myelopathy, severe; and lumbar stenosis with right lower radiculopathy, moderate. There was intermittent right lower extremity pain, and right and left upper extremity severe parasthesias and dysphasia, as well as numbness. Tinel's signs were positive bilaterally. In a July 2013 addendum to the November 2012 VA examination, the examiner noted that she had been asked to opine as to whether there would be additional loss of function during flares-up of the cervical and lumbar spine (expressed in degrees of lost motion), and whether this would change any aspect of the opinion and findings stated on the November 2012 examination, and whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare ups. The examiner noted that she review the claims file and CPRS. During the November 2012 examination, there was pain with ROM of both cervical and lumbar spines examinations, and where the pain began was noted. There was no increased loss of function during the repetition of ROM of both cervical and lumbar spines. There would be no additional loss of function during flare-up of the cervical and lumbar spine. Further, there is no change of any aspect of the opinion and findings stated on the November 2012 examination. IV. Analysis- 1. Initial disability rating greater than 40 percent for DDD of the lumbar spine. On careful review of the record, the Board finds no basis for an increased evaluation. Incapacitating episodes of disc disease are neither shown, nor have such been alleged. Thoracolumbar forward flexion has consistently been greater than 30 degrees. In fact, while forward flexion was 30 degrees at the October 2008 VA examination, it improved to 60 degrees at the November 2011 examination, and to 90 degrees at the November 2012 examination. Moreover, there was no additional loss of function with repetitive motion. Furthermore, a VA examiner was specifically asked to consider whether the Veteran would likely experience additional loss of function during periods of flare-up, and the examiner found that there would not be any such additional loss. Further considering the relevant rating criteria, the Veteran has not complained of muscle spasm. Guarding was shown on examination, but abnormal gait or contour of the thoracolumbar spine has not been shown. The spine is not ankylosed. The evidence did not reveal any additional separately ratable neurological symptoms (other than what was currently compensated). For the above reasons, the disability picture presented does not warrant a rating in excess of the currently assigned 40 percent under any applicable criteria for any portion of the rating period on appeal. 2. Initial disability rating greater than 20 percent for DDD of the cervical spine. On careful review of the record, the Board finds no basis for an increased evaluation. Incapacitating episodes of disc disease are neither shown, nor have such been alleged. Cervical forward flexion was consistently 30 degrees or greater. In fact forward flexion was 30 degrees, and the combined ROM of the cervical spine was 200 degrees at the October 2008 VA examination, it improved to 35 degrees and the combined ROM of the cervical spine was 275 degrees at the November 2011 and November 2012 examinations. Moreover, there was no additional loss of function with repetitive motion. Furthermore, a VA examiner was specifically asked to consider whether the Veteran would likely experience additional loss of function during periods of flare-up, and the examiner found that there would not be any such additional loss. Further considering the relevant rating criteria, the Veteran has not complained of muscle spasm. Guarding was shown on examination, but abnormal gait or contour of the cervical spine has not been shown. The forward flexion of the cervical spine has never been shown to be 15 degrees or less and the cervical spine is not ankylosed. The evidence did not reveal any additional separately ratable neurological symptoms (other than what was currently compensated). For the above reasons, the disability picture presented does not warrant a rating in excess of the currently assigned 20 percent under any applicable criteria. 3. Disability ratings greater than 10 percent from December 31, 2009, greater than zero percent from November 4, 2011, and greater than 30 percent from November 15, 2012 for cervical radiculopathy (ulnar and median neuropathy) of the right and left upper extremities. On careful review of the record, the Board finds no basis for increased evaluations during the periods in question. In a December 2009 EMG study, significant problems with numbness and tingling of the fourth and fifth fingers bilaterally were shown. A copy of the EMG results indicated polyradiculopathy and C5-C6 and C8 distribution. There was very mild median neuropathy, right wrist. An April 2011 neurosurgery consult noted the Veteran reported increased difficulty holding objects, poorer handwriting, and increased difficulty with fine motor skills. On the November 2011 VA examination, the examiner noted that the sensory examination was normal. In an April 2012 addendum the examiner noted that that the neuropathy was subjective as reported by the Veteran and no noted peripheral neuropathy or nerve involvement was shown by examination. At the November 2012 VA peripheral nerve examination studies revealed signs of upper extremity peripheral neuropathy with severe incomplete paralysis of the ulnar nerve with evidence of parasthesias, dysphasia, and numbness, involvement of the root nerve, C5/C6 upper radicular group. Incapacitating episodes of ulnar and median nerve neuropathy are neither shown, nor have such been alleged. Review of EMG studies in December 2009 revealed evidence of mild ulnar and median nerve neuropathy. Subsequently, in a November 2011 VA examination, the examiner found no evidence of any peripheral neuropathy or nerve involvement. The RO granted staged ratings for ulnar and median nerve neuropathy under the rating criteria for incomplete paralysis of the ulnar nerve. A 10 percent schedular rating was assigned for ulnar and median nerve neuropathy for each of the upper extremities for the period from December 31, 2009. There was no evidence of ulnar and median nerve neuropathy prior to this EMG report and there was no evidence of more than mild bilateral incomplete paralysis of the ulnar nerve during this period. The RO also granted a 0 percent schedular rating for ulnar and median nerve neuropathy from November 4, 2011 as the criteria for a compensable rating for incomplete paralysis of the ulnar nerve for each of the upper extremities was not shown during this period. Finally, in a November 2012 VA peripheral nerve examination the examiner found evidence of upper extremity peripheral neuropathy with severe incomplete paralysis of the ulnar nerve with evidence of parasthesias, dyesthesia, and numbness, involvement of the root nerve, C5/C6 upper radicular group. The RO then granted a 40 percent schedular rating for the right (major) extremity, and a 30 percent schedular rating for the left extremity for ulnar and median nerve neuropathy from November 15, 2012 as severe incomplete paralysis of the ulnar nerve was first shown from this date. The disability picture presented does not warrant rating in excess of the currently assigned 10 percent ratings from December 31, 2009; the noncompensable ratings from November 4, 2011; or, the 40 (major) and 30 percent ratings from November 15, 2012 under any applicable criteria. The disability levels during these periods: mild, none, and severe were identified by examination. There is no evidence presented that a higher level of disability was shown by the Veteran during these periods. Throughout the entire appeal period the Veteran has exhibited no wasting, or atrophy. She has exhibited normal strength of her upper extremities with no muscle weakness. The Veteran is currently rated at the highest rating criteria for incomplete paralysis of the ulnar nerve. To rate a higher level of disability she must show complete paralysis of the ulnar nerve. This is clearly not shown by the medical evidence of record. 5. Disability rating greater than 20 percent for right lower extremity radiculopathy effective November 15, 2012. On careful review of the record, the Board finds no basis for an increased evaluation. Incapacitating episodes of right lower extremity radiculopathy are neither shown, nor have such been alleged. At the November 2012 VA examination the Veteran was noted to have signs of radiculopathy including moderate, incomplete paralysis of the sciatic nerve. The examiner noted moderate right lower extremity involvement. The left lower extremity was normal On careful review of the record, the Board finds no basis for an increased evaluation during the appeal period. To rate a higher level of disability she must show moderately severe incomplete paralysis of the sciatic nerve. This is not shown by the evidence of record. The Veteran has exhibited no wasting, or muscle atrophy. She has exhibited normal strength of her lower extremities with no muscle weakness. The Board finds that the Veteran's symptoms for the entire appeal period show no more than "moderate" symptoms. Therefore, a 40 percent rating for moderately severe incomplete paralysis under Diagnostic Code 8520 is not assignable. The disability picture presented does not warrant a rating in excess of 20 percent under any applicable criteria during the rating period. V. Extraschedular considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities." 38 C.F.R. § 3.321(b) (1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b) (1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluations are not inadequate. Evaluations in excess of those assigned are provided for certain manifestations of the service-connected disorders, but the medical evidence reflect that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disabilities, referral for extra- schedular consideration is not in order. VI. TDIU The Court has held that entitlement to a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him/her from obtaining or maintaining all gainful employment for which his/her education and occupational experience would otherwise qualify him/her. 38 C.F.R. § 4.16 (2012). The issue of TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the evidence does not reflect that the Veteran is unable to work. While his service connected conditions are debilitating, the Veteran has not submitted any evidence of unemployability. Accordingly, the question of entitlement to TDIU has not been raised. ORDER An initial disability rating in excess of 40 percent for DDD of the lumbar spine is denied. An initial disability rating in excess of 20 percent for DDD of the cervical spine is denied. A disability rating in excess of 10 percent from December 31, 2009; greater than zero percent from November 4, 2011; and greater than 30 percent from November 15, 2012 for cervical radiculopathy (ulnar and median neuropathy) of the left upper extremity is denied. A disability rating in excess of 10 percent from December 31, 2009; greater than zero percent from November 4, 2011; and greater than 40 percent from November 15, 2012 for cervical radiculopathy (ulnar and median neuropathy) of the right upper extremity is denied. A disability rating in excess of 20 percent for right lower extremity radiculopathy is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs