Citation Nr: 1329474 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 02-14 355 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to an initial rating in excess of 20 percent for cervical disc disease, C-7 fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran had active service from May 1985 to July 1999. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2001 rating decision in which the RO, inter alia, granted service connection for cervical disc disease, C-7 fracture, and assigned an initial 20 percent rating effective July 21, 1999. The Veteran timely perfected an appeal as to the assigned disability rating. In October 2002, the Veteran testified during a hearing before RO personnel, and, in January 2007, he testified during a hearing before the undersigned Veterans Law Judge at the RO. Transcripts of both hearings are of record. In a decision issued in November 2007, the Board granted a 10 percent rating for lumbar spine strain prior to July 2, 2004, and remanded the matter of a rating in excess of 10 percent for lumbar spine disability from July 2, 2004, to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. The Board also denied the Veteran's claim for an increased rating for cervical disc disease, but the Veteran appealed the Board's decision as to the rating for his cervical spine disability to the United States Court of Appeals for Veterans Claims (the Court). In February 2009, counsel for VA's Secretary and the Veteran's representative (the parties) filed a Joint Motion for Partial Remand and, by Order dated in February 2009, the Court remanded the matter of a rating in excess of 20 percent for cervical disc disease to the Board. Subsequently, in a September 2009 decision, the Board again denied the Veteran's claim for a higher rating for cervical disc disease. He again appealed to the Court. In June 2010, the parties filed another Joint Motion for Remand with the Court. By Order dated later that month, the Court granted the motion, vacating the Board's decision and again remanding the matter to the Board. In December 2010, December 2011, and December 2012, the Board remanded the claim for higher rating for cervical spine disability to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the claim. On each occasion, after accomplishing further action, the RO/AMC continued to deny the claim. Most recently, in June 2013, the RO/AMC issued a supplemental statement of the case reflecting continued denial of the claim, and subsequently returned the matter to the Board for further appellate consideration. As a final preliminary matter, the Board again points out that the actions requested in the November 2007 remand, in connection with the claim for higher rating for lumbar spine disability from July 2, 2004, have not yet been accomplished; hence, this matter is again referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. From the July 21, 1999 effective date of the award of service connection to September 22, 2002, the Veteran's cervical disc disease did not result in more than moderate intervertebral disc syndrome (IVDS) with recurring attacks, or moderate limitation of motion of the cervical spine; there was no demonstrable deformity of the C-7 vertebral body due to fracture, and no ankylosis of the cervical spine. 3. For the period from September 23, 2002 to September 25, 2003, the Veteran's cervical disc disease did not result in more than moderate IVDS with recurring attacks, or moderate limitation of motion of the cervical spine; there was no ankylosis of the cervical spine, incapacitating or neurological manifestations other than those for which service connection had been granted and separately rated. 4. Since September 26, 2003, forward flexion of the cervical spine has not been limited to 15 degrees or less, there has been no favorable ankylosis of the entire cervical spine, incapacitating episodes, or associated neurological abnormalities other than those for which service connection and separate ratings have already been granted. 5. The applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for cervical disc disease, C-7 fracture are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.20, 4.25, 4.71, 4.71a (2002-2008); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5287, 5290, 5293 (as in effect prior to September 26, 2003); and General Rating Formula and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (as in effect from September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b) (1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a May 2004 post-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate a claim for increased rating for cervical spine disease, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. A March 2006 letter provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. A July 2002 statement of the case (SOC) and subsequent (May 2004 and January and December 2005) supplemental SOCs set forth the former and revised criteria for evaluating the disability under consideration (the timing and form of which suffices, in part, for Dingess/Hartman). After the Veteran was afforded opportunity to respond, SSOCs issued in October 2006, August 2011, August 2012, and June 2013 reflect readjudication of the claim. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Moreover, to whatever extent the aforementioned letters may be deficient, the Board observes that the Veteran has demonstrated actual knowledge of the information and evidence necessary to substantiate his claim for an increased rating. In this regard, a statement accompanying the Veteran's September 2002 substantive appeal provided detailed argument regarding the service-connected cervical spine disability and its effect on daily life and employment in relation to the relevant criteria. Specifically as regards the Veteran's January 2007 Board hearing, it is noted that the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c) (2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: to explain fully the issues, and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing in this case, the undersigned Veterans Law Judge discussed the evidence necessary to substantiate a claim for an increased rating. The Veterans Law Judge specifically inquired as to basis of the Veteran's contentions as to why his service-connected cervical spine disability was more severe than as reflected by the current 20 percent rating and indicated that medical evidence supportive of his contentions would assist him in substantiating his claim. Accordingly, the Bryant duties were met, and the hearing is legally sufficient. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA treatment records, private treatment records, and the reports of VA examinations conducted in June 2000, November 2002, October 2004, April 2006, and June 2007. Also of record and considered in connection with the appeal are various statements provided by the Veteran and by his representative, on his behalf. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the paperless claims processing system revealed additional medical evidence that has been carefully reviewed. Neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the specific claim on appeal. The Board finds that no further RO action on this matter, prior to appellate consideration, is required. As regards compliance with prior remands, the Board notes that this claim was remanded in December 2010, December 2011, and December 2012 to assist the Veteran with evidentiary development. In December 2010 and December 2011, the Board directed the RO/AMC to assist him with the collection of any outstanding private records and afford him a VA examination. In December 2012, the Board directed the RO/AMC to obtain outstanding VA treatment records, obtain relevant employment records from the Federal Aviation Administration (FAA), assist the Veteran with the collection of any outstanding private records, and afford him an examination. The Board remanded the claim on multiple occasions due to address discrepancies that the Veteran contended - despite providing VA with a copy of a letter he had received with the "incorrect" address - resulted in loss of examination notices. As the record reflects that all information requests and examination notices issued after the December 2012 Remand were mailed to the address specified by the Veteran, the requested development was accomplished on remand to the extent possible, so there was compliance with these remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation under Stegall v. West, 11 Vet. App. 268, 271 (1998) when the examiner made the ultimate determination required by the Board's remand). Specifically, the RO/AMC obtained additional VA treatment records, mailed the Veteran requests for authorization for the release of private and employment records (after appropriate inquiry indicated that a release was necessary for information from the FAA), and advised him of multiple VA examinations scheduled on his behalf. However, the Veteran did not respond to VA requests for information from his private physicians or his employers and he failed to appear for examinations scheduled in May and June 2013. VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). Further, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, as here, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). As mentioned, the Veteran was afforded VA examinations with resulting medical opinions in June 2000, November 2002, October 2004, and April 2006. Although some of the examination reports do not explicitly state that the claims file was reviewed, the Board finds that the VA examinations and accompanying opinions are adequate to decide the issues as they are predicated on interviews with the Veteran and (then) current physical examinations. The opinions proffered considered evidence pertinent to the current (at the time of each examination) severity of his cervical spine disability and provided a complete rationale, relying on the results of interview, examination, and any records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Moreover, as the Veteran failed to report for examinations, the law provides that his claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter remaining on appeal, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the award 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 Fenderson, 12 Vet. App. at 126. The Veteran sustained a cervical spine fracture during service and subsequent treatment records reflect that he developed cervical disc disease as a result of the in- service fracture. As addressed in more detail below, during the pendency of this appeal, the criteria for rating intervertebral disc syndrome (IVDS) changed, effective September 23, 2002. The rating criteria for all disabilities of the spine also changed, effective September 26, 2003. See 67 Fed. Reg. 54345 (2002); 68 Fed. Reg. 51454 -51458 (2003). As noted in the Joint Motion, in determining whether a statute or regulation has retroactive effect, the seminal case is Landgraf v. USI Film Products, in which the United States Supreme Court explained that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." 511 U.S. 244, 264 (1994). Moreover, the United States Supreme Court observed that "retroactivity is not favored in the law" and, to determine whether application of a statute or rule will have an improper retroactive effect, an agency "must ask whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 269-70. Considerations such as fair notice, reasonable reliance, and settled expectations offer sound guidance in making the determination. Id. First, a determination must be made as to whether the statute or regulation expressly speaks to its temporal reach. Id. at 280. If not, then a determination must be made as to whether application of the new statute would have retroactive effect. Id. A statute or regulation will have an impermissible retroactive effect if its application "would impair rights a party possessed when he acted." Id. Here, the 2002 and 2003 regulatory changes became effective September 23, 2002, and September 26, 2003, respectively, but the regulations did not specifically address their temporal reach regarding cases already pending before VA at the time of enactment. Therefore, the Board turns to the question of whether application of the 2002 and 2003 regulatory changes would have retroactive effect. In determining whether a statute or regulation has retroactive effect, the United Court of Appeals for the Federal Circuit (Federal Circuit) has created a three-part test encompassing the factors laid out in Landgraf. See Princess Cruises v. United States, 397 F.3d 1358, 1362-1363 (Fed. Cir. 2005); see also Rodriguez v. Peake, 511 F.3d 1147, 1153 (Fed. Cir. 2008); Kernea v. Shinseki, No. 2012- 7142 (Fed. Cir. Aug. 1, 2013). To determine if a regulation change produces retroactive effects, VA must consider: 1) the nature and extent of the change of the law, 2) the degree of connection between the operation of the new rule and a relevant past event, and 3) familiar considerations of fair notice, reasonable reliance, and settled expectations. Id. A new regulation has retroactive effects if it is less favorable to a claimant than the old regulation and a liberalizing law or regulation does not have retroactive effects. See VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2004). If application of an amended regulation has a retroactive effect, then the regulation cannot be applied to cases pending at the time of its promulgation. Rodriguez, 511 F.3d at 1153. With regard to the first factor, the nature and extent of the 2002 and 2003 regulatory amendments were substantive rather than merely procedural or interpretive. Pre-2002 amendments, orthopedic and neurological manifestations of IVDS were rated together under the applicable diagnostic code. The 2002 amendments including provisions for assigning separate evaluations for orthopedic and neurological symptoms of IVDS, whichever resulted in a higher evaluation. Moreover, the 2003 amendments enacted specific objective criteria for rating the disability affected. With regard to the second factor, the Board notes that despite the substantive nature of these amendments, there is no connection between the operation of the 2002 and 2003 amendments and past events. In this regard, the initial 20 percent rating for the disability at issue was based on reports of June 2000 VA examinations and private medical records dated from July to October 1999. There is no evidence, nor has any argument been made, that the results of the VA examinations or findings in the private medical records would have been different depending on which version of the criteria was applied. The past medical findings were based on objective observation and diagnostic testing; the Veteran has not argued, nor can any reasonable argument be made, that these findings would have been different had the Veteran known about the future changes to the rating criteria. With regard to the third factor, there is no evidence or argument that the Veteran did not have fair notice of the regulatory changes or relied on the prior regulation to his detriment, or that these regulatory changes otherwise upset settled expectations. Moreover, as discussed in detail below, application of the 2002 and 2003 regulatory changes to the criteria does not mandate a disability rating less than 20 percent or otherwise impair the rights of the Veteran. For these reasons, the Board finds that the 2002 and 2003 regulatory changes do not have retroactive effect and may be applied as of their dates of enactment. To the extent the Joint Motion addresses whether the regulatory changes may be applied prior to their enactment, the Board notes that 38 U.S.C.A. § 5110(g) provides, in pertinent part, that "where compensation .... is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue." In Landgraf, the United States Supreme Court concluded that, unless clearly provided otherwise, laws are presumed to operate prospectively. Landgraf, 511 U.S. at 280; see also Rodriguez, 511 F.3d at 1153; Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003); VAOPGCPREC 7-03; VAOPGCPREC 3-00. The Board also notes that the RO has evaluated the cervical spine disability under both the former applicable criteria (see the April 2001 rating decision and July 2002 SOC) and the revised applicable criteria (see the May 2004 SSOC). Accordingly, as the Board would not be applying any law in the first instance, there is no due process bar to the Board also considering each claim in light of the former and revised applicable rating criteria, as appropriate. Prior to September 26, 2003, the Veteran's cervical disc disease C-7 fracture was rated under Code 5285-5293. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2008). Here, Code 5285 reflects the Veteran's in- service C7 fracture. Under Code 5285, a 60 percent rating is warranted if there is no spinal cord involvement but there is abnormal mobility requiring a neck brace and a 100 percent rating is warranted where there is cord involvement, or the Veteran is bedridden or requires long leg braces. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2003). However, the evidence below reflects that the Veteran does not experience from any such symptoms. In such cases, residuals of vertebral fracture are to be rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. Id. Here, as the Veteran's cervical disc disease is residual to his C-7 fracture, the rating for this disability was assigned under Code 5293, for IVDS. A. Prior to September 23, 2002 Prior to September 23, 2002, IVDS was rated under Code 5293 as follows: moderate IVDS, with recurring attacks was rated 20 percent disabling; severe IVDS, with recurring attacks with intermittent relief, was rated 40 percent; and pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, an absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief, was rated 60 percent disabling. Considering the pertinent evidence in light of the above- noted criteria, the Board finds that the findings provide no basis for more than the currently assigned 20 percent rating, for the period from the July 21,1999 effective date of the grant of service connection to September 22, 2002. May 1999 service records reflect that the Veteran reported being in excellent health and not having any conditions that would limit his ability to work in his military specialty as a pilot. Subsequent private treatment records reflect that the Veteran experienced severe pain in his neck and shoulder after a long bike ride in July 1999. X-rays conducted at that time revealed degenerative changes at the C5-6 level. An August 1999 note states that the Veteran's pain had improved, but he had trigger point area of tenderness over the superior medial border of the scapula on the right side. A private physician noted that x-rays from August 1990 revealed a "clay shoveler's fracture" of the spinous process of the C-7 vertebra, but subsequent, 1992, x-rays did not have the appearance of an old or acute injury and instead were suggestive for possible calcification, sesamoid, or ununited ossification center in the spinous process itself. The June 1992 x-ray report describes that area as "most likely a developmental variation of questionable clinical significance." The Veteran's private physician questioned whether the Veteran had experienced fracture in 1990 or if the initial x-ray findings reflected the later-noted developmental defect. The Veteran visited a private orthopedist in July 1999 who observed pain with motion of the neck in any direction and assessed symptoms of spinal arthritis. Although the Veteran informed the orthopedist of pain radiating down his right arm, the orthopedist noted that deep tendon reflexes, sensation, and motor functions were normal in both upper extremities. An August 1999 MRI revealed small right lateral disc protrusion and degenerative bony change at C5-6 causing ventral impression on the thecal sac and narrowing of the right foramen; and a broad-based right paramedian disc protrusion at C6-7 causing alteration in contour of the cord and compromise of the spinal canal and the right foramen. The diagnoses were herniated discs at the C5-6 and C6-7 levels, to the right. In August and September 1999, the Veteran underwent a series of three epidural injections with noted improvement. A December 1999 private treatment record reflects that the Veteran reported that he was rid of 99.5 percent of his pain, if not more, but was concerned about some atrophy of his triceps and pectoralis muscles. The physician observed "superb" range of motion of the neck; a foraminal compression test was negative. The right triceps reflex was present but less active than the left and there was no sensory deficit, but some miniscule right triceps weakness. Brachial radialis reflexes were also less active on the right than the left. The impression was right C-7 root syndrome. The private physician also noted that the X-ray did not show any residuals of fracture of the C-7 vertebral body. MRI revealed minimal abnormality at C5-6 and a herniated disc at C6-7, on the right, causing the above symptoms. In March 2000, private treatment notes show that the Veteran had essentially no pain, but did report neck ache at night. His biceps and triceps reflexes were "a little bit down" on the right as well as his brachialis. He also had "very minimal" weakness of his pectoralis and his triceps on the right side. Three separate VA examinations were conducted in June 2000 - general, orthopedic, and neurological. On VA general medical examination, range of motion of the cervical spine was flexion to 46 degrees, extension to 40 degrees, lateral bending 18 degrees to the right and 24 degrees to the left; and rotation 56 degrees to the right and 50 degrees to the left. There was right pectoral atrophy and right triceps weakness. The examiner noted the Veteran's history of an avulsion fracture and ordered radiographs. X-ray revealed mild degenerative arthritic changes and disc disease at C5- 7. The examiner observed that the Veteran "clearly had radiculopathy," but had since undergone epidural injections and, as a result, "by September [1999] the pain had resolved" although he still had some tingling in the right arm. On VA orthopedic examination, range of motion of the cervical spine was flexion to 65 degrees, extension to 65 degrees, right lateral rotation to 40 degrees, left lateral rotation to 70 degrees, right lateral flexion to 35 degrees, and left lateral flexion to 45 degrees, all with no complaints of pain. There was no tenderness to palpation and no muscle spasm, but some muscle atrophy in the right pectoral region. Deep tendon reflexes were 2+ and symmetric bilaterally. Grip was normal in both hands and sensory to scratch was normal in both upper extremities. There was no current radiculopathy and functional impairment was rated between mild and moderate with additional loss in degrees of range of motion of right lateral rotation to 20 degrees and left lateral flexion to 10 degrees. The Veteran complained of weakness and fatigability, but was unable to give examples, and there was no incoordination. He described intermittent daily tingling of the dorsal right forearm, but, otherwise, sensation was normal. The examiner opined that there was no current radiculopathy. On June 2000 VA neurological examination, range of motion was "full in flexion, extension, and right and left axial rotation." Lateral bending was to 30 degrees on the right and "perhaps 40 degrees on the right." There was no evidence of paraspinous muscle spasm in the neck or cape muscles. Strength of the extremities was 5/5 except for the right tricep, which was 4+. There also was mild atrophy of the right pectoral and right tricep regions. On sensation testing, there was decrease to light touch but not to pinprick in the lateral surface of the right forearm and upper arm but not the cape. Reflexes were 2+ throughout with no evidence of asymmetry between the biceps, brachioradialis, or triceps reflexes. Gait was normal. The impression was that the Veteran's cervical disc disease caused a decrease in range of motion, there was cervical radiculopathy on the right, and the Veteran reported being severely affected by his neck trouble. Specifically, he reported that he was unable to bike, jog, play basketball, or fly F-16 planes, which he reported had curtailed his military career. However, the examiner noted that the Veteran was, at the time of the examination, working full time for Southwest Airlines. X-rays of the cervical spine showed mild degenerative arthritic changes and disc disease at C5-C6 and C6-C7. The examiner observed that the Veteran's symptoms could be attributable to involvement of the C6-7 nerve roots or the result of an anatomical variance of the area of innervation of C7. An October 2001 military reserve examination reflects that the spine was evaluated as normal. The Veteran completed a contemporaneous self report of medical history attesting that his health was "good" and he required "no meds." Although he reported having experienced herniated discs in his neck "1999-2000," and being in receipt of a 20 percent VA disability rating for his neck, he did not report any current symptoms and the reviewing physician described him as a "healthy male." In February 2002, the Veteran wrote to VA and stated that he had required three epidural blocks to control the neck pain that had radiated down his arm. He wrote again in September 2002 and contended that he was entitled to a disability rating over 20 percent because he woke up each day with a neck ache and decreased range of neck motion that gradually improved throughout the day. The above evidence reflects that, prior to September 23, 2002, the symptoms of the Veteran's cervical disc disease more closely approximated moderate, rather than severe, IVDS, warranting the current 20 percent rating under Code 5293. Although the Veteran reported radiating pain from his neck into his right arm, most neurological findings were at or near normal - his private orthopedist observed in July 1999 that his sensation, reflexes, and motor functions were normal and the June 2000 orthopedic VA examiner determined that there was no current radiculopathy. Although the June 2000 neurological VA examiner did diagnose cervical radiculopathy, he observed those symptoms could either be attributable to an anatomical variance or to nerve root involvement of the cervical disability. Regardless, the radiculopathy was limited to slightly (4+) decreased right tricep strength with some mild atrophy and decrease to light touch, but not to pinprick, in the lateral surface of the right forearm and upper arm. Although medical professionals have issued conflicting opinions as to whether or not the Veteran actually has radiculopathy due to the cervical spine disability, clinical assessments of radicular symptoms have consistently reflected that they are mild in severity. The Board also notes that, during this period, a rating higher than 20 percent is not warranted under any other potentially applicable diagnostic codes. As the evidence reflects no evidence of ankylosis, a rating under former Code 5287 is not appropriate. As noted in the Joint Remand and above, pertaining to residuals of fracture of vertebra, Code 5285 provides that in cases such as this, the disability is rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. During this time period, limitation of motion of the cervical spine is assessed under Code 5290. Former Code 5290, provides a rating of 10 percent for slight limitation of motion, a 20 percent for a moderate limitation of motion, and a 30 percent for severe limitation of motion. As the terms "slight," "moderate" and "severe" are not defined in the rating schedule, VA must, rather than applying a mechanical formula, evaluate all the evidence to render a decision that is "equitable and just." 38 C.F.R. § 4.6. The evidence prior to September 23, 2002 reflects that the results of range of motion testing on flexion and extension were either normal or better, and lateral flexion and rotation were reduced, but only slightly or moderately. Thus, the Veteran's cervical disc disease resulted in mild, no more than moderate, limitation of motion of the cervical spine, warranting no more than a 20 percent rating under former Code 5290. The Board is mindful that the Veteran has complained in letters to VA and to VA examiners of pain with motion and pain restricting motion, but he also reported a lack of pain to private physicians after September 1999 and was evaluated as normal by the military in October 2001. Although VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with the rating criteria (see 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995)), the overall level of disability demonstrated by the Veteran is not commensurate with the degree of motion loss required for a rating higher than 20 percent even with consideration of pain and fatigue. Moreover, to the extent that the Veteran did report pain and fatigue, no VA examiner noted any further loss of motion or function - the Board finds that a disability rating in excess of 20 percent may not be granted under the pertinent rating criteria. In fact, as the medical evidence does not reflect that he experienced overall moderate loss of motion required for the currently assigned 20 percent rating, he was already being compensated for any functional loss associated with his complaints of pain. An additional 10 percent rating, for demonstrable deformity of vertebral body, also is not warranted. Although the claims file documents a prior fracture of the C-7 vertebra, private physicians have observed no evidence of the fracture on MRI and X-ray. One private physician even questioned whether the Veteran had, in fact, fractured the C-7 vertebra. While the MRI and X-rays did not reveal deformity resulting from the fracture of the C-7 vertebra, there was evidence of degenerative changes at the C5-6 and C6-7 levels. Further, as noted by the Court in the June 2010 Joint Motion for Remand, evidence - particularly an August 1999 MRI - also reflects "right lateral disc protrusion and degenerative bony bar causing indentation on the thecal sac and associated uncinate spur" as well as stenosis. The Court directed that the Board should determine whether those findings, with the evidence of degeneration, reflected a demonstrable deformity or to obtain a medical opinion to that effect. As noted above, the Board has remanded the Veteran's appeal on multiple occasions in order to obtain an examiner's opinion as to the current and past severity of his service-connected cervical spine disability. As the Veteran did not appear for examination, pertinent regulation requires the Board to rate his claim based on the evidence of record. 38 C.F.R. § 3.655(b). Despite the MRI and X-ray findings of record, the Board finds that the evidence of record does not reflect that the Veteran had a demonstrable deformity of vertebral body such that an additional 10 percent rating is warranted. Specifically, the Veteran has been awarded service connection for a fracture of C7 with associated degenerative disc disease. As shown by multiple private physicians' and VA examiners' interpretations of spinal images obtained during the pertinent part of the appellate period, the Veteran does not have demonstrable deformity at C7 attributable to fracture. The Board is mindful that, as the Court noted in the June 2010 Joint Motion for Remand, other symptoms are manifest. However, the rating criteria is clear - Code 5285 is for rating "vertebra, fracture of, residuals" and refers to "demonstrable deformity of vertebral body." Here, the Veteran's cervical fracture was documented at C7 and the imaging evidence, as interpreted by multiple physicians, shows no evidence of fracture -and thus no demonstrable deformity- in the C7 vertebral body. In specific regard to the Court's direction to the Board to consider whether disc symptomatology may be reflective of deformity, the Board again notes that the rating criteria refer specifically to "vertebra" and "vertebral body." Vertebra is defined as "any of the thirty-three bones of the spinal column." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 2079 (31st Ed. 2007) (emphasis added); and see Kirwin v. Brown, 8 Vet. App. 148, 153 (1995) (three judge panel decision) (holding that the Board had erroneously placed "reliance on [a] medical treatise [] for more than purely definitional purposes" in violation of the earlier holding in Thurber v. Brown, 5 Vet. App. 119, 126 (1993) (notice and comment of reliance on medical evidence outside the record must be given the claimant)). The Board notes that the corollary of Kirwin is that information from medical sources outside the record can be used for purely definitional purposes. As detailed above, the degenerative changes associated with the service-connected spinal disability warrant no more than a 20 percent rating. To the extent these degenerative changes involve the bony processes such that evaluation under Code 5003 may be considered in the alternative for rating as arthritic change, Code 5003 also rates based on limitation of motion, which, as discussed, warrants no more than a 20 percent rating. See 38 C.F.R. § 4.71a , Code 5003. B. September 23, 2002 to September 25, 2003 Effective September 23, 2002, IVDS (Code 5293) was to be evaluated by one of two alternative methods: on the basis of total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating. For purposes of evaluation under former Code 5293, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician, and chronic orthopedic and neurological manifestations mean orthopedic and neurological signs and symptoms resulting from IVDS that are present constantly, or nearly so. 38 C.F.R. § 4.71a , Code 5293, Note (1) (2003). Considering the pertinent evidence in light of the above criteria, the Board finds that the probative evidence of record also provides no basis for more than the currently assigned 20 percent rating for the period from September 23, 2002 to September 25, 2003. A November 2002 VA examination report reflects that the Veteran had no incapacitating episodes the prior twelve months. There is thus no basis for rating the Veteran's cervical disc disease based on total duration of incapacitating episodes under Code 5293 (2003). In addition, during the examination, the Veteran indicated during the examination that he felt tingling in the dorsal forearm about once per week, but grip was normal in both hands, capillary circulation in the fingers was normal, there was no tenderness to palpation or muscle spasm, and deep tendon reflexes were 2+ bilaterally. A February 2003 VA treatment note reflects that the Veteran reported his history of C7 fracture, but stated that he had received nerve blocks and currently was stable, had no radiation and no weakness. In April 2003, the Veteran completed a Reserve Component Health Risk Assessment and indicated that his health was "excellent," that he did not regularly take any pain medication, that he has no health condition that would preclude running for one to three miles, that his treating physician had not placed him on restricted activity, that he had "no orthopedic problems that prevent regular exercise or become bothersome during exercise," and that he had not missed more than seven days of work in the last year due to any illness or injury. For the time period in question, there is no medical evidence of chronic neurological manifestations as defined in Code 5293, Note 1 (2003) (i.e., present constantly or nearly so), other than the right upper extremity radiculopathy for which the Veteran is separately compensated by a 10 percent rating effective September 23, 2002. As such, there is no additional neurological disability warranting a rating higher than 20 percent for cervical disc disease. In addition, range of motion of the cervical spine during the November 2002 VA examination was measured at 45 degrees of flexion, 45 degrees of extension, lateral rotation to 45 degrees bilaterally, and side bending to 30 degrees bilaterally. Although the Veteran did report some pulling on right and left lateral flexion, there was no ankylosis warranting a higher rating under Code 5287 (2003) and there was no measurement of any severe limitation of motion of the cervical spine that would warrant a higher, 30 percent, rating under Code 5290. As noted above, the Veteran wrote to VA in September 2002 and contended that he woke up daily with an ache in his neck and reduced range of motion that gradually improved throughout the day. He also testified before a Decision Review Officer in October 2002 and reported that his only manifestations of the service-connected cervical spine disability were pain and loss of motion. The Board notes that the Veteran is certainly competent to report his symptoms, and his complaints have been considered. However, as the Board observed above in regard to the time period prior to September 23, 2002, here, again, the overall level of disability demonstrated by the Veteran is not commensurate with the degree of motion loss required for a disability rating higher than 20 percent rating-even with consideration of pain. Even after taking the factors identified in sections 4.40 and 4.45 and DeLuca into consideration, a disability rating in excess of 20 percent may not be granted under the pertinent rating criteria. Again, as the medical evidence does not reflect that he experiences the extent of loss of motion required for even for the currently assigned 20 percent rating, he is already being compensated for any functional loss associated with his complaints of pain and fatigue. C. From September 26, 2003 Effective September 26, 2003, the Code for IVDS was renumbered as 5243. However, the criteria for rating all spine disabilities, to include IVDS, were, also effective September 26, 2003, set forth in a General Rating Formula for Diseases and Injuries of the Spine. The revised criteria provide that IVDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (to include consideration of separate ratings for orthopedic and neurological manifestations) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Pertinent to the cervical spine, the General Rating Formula provides that a 30 percent rating is warranted where there is forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent rating is assignable where there is unfavorable ankylosis of the entire cervical spine and a 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria 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. See 38 C.F.R. § 4.71a , Codes 5235-5243. Normal range of motion of the cervical spine is flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees in each direction, and rotation to 80 degrees in each direction. See 38 C.F.R. § 4.71a , Plate V. Considering the pertinent evidence, as detailed below, in light of the above-noted criteria, the Board finds that the findings provide no basis for a rating higher than the currently assigned 20 percent since September 26, 2003. In April 2004, the Veteran completed a Reserve Component Health Risk Assessment and indicated that his health was "very good," that he did not regularly take any pain medication, that he has no health condition that would preclude running for one to three miles, that his treating physician had not placed him on restricted activity, that he had "no bone, joint, or muscle problems that prevent regular exercise or become bothersome during exercise," and that he had not missed more than seven days of work in the last year due to any illness or injury. A May 2004 private treatment note states that the Veteran's C7 nerve root problem had "resolved nicely," but he continued to experience intermittent neck pain. VA afforded the Veteran a spinal disorders examination in October 2004. The resulting report reflects that the Veteran was still working full time as a pilot for Southwest Airlines, but found it difficult to extend his neck. He reported that he could not fly high performance aircraft in the Reserves and could not run as long as he used to. The Veteran stated that his neck hurt "intermittently," with no flare-ups, and occasional tingling, but no numbness, in the right upper extremity. The Veteran was not undergoing current treatment and had not been treated by a doctor in the past 12 months. On examination, manual muscle strength was 5/5 bilaterally, there was no tenderness to palpation or muscle spasm, and deep tendon reflexes were 2/4 bilaterally, except for right biceps which were 1/4. Sensory examination of the upper extremities was normal to light touch. Range of motion of the cervical spine was flexion to 45 degrees, extension to 55 degrees, right lateral rotation to 65 degrees, left lateral rotation to 75 degrees, right lateral flexion to 20 degrees, and left lateral flexion to 25 degrees, with slight complaint of pain. There was no change with repetition of flexion/extension. The examiner diagnosed cervical spine degenerative disc disease with radicular symptoms to the right. Subsequent, February 2005, EMG testing revealed a normal study of the upper extremities showing no electrophysiological evidence of a radiculopathy, plexopathy, or polyneuropathy on the right side. In April 2005, the Veteran completed another Reserve Component Health Risk Assessment and indicated that his health was "excellent," that he did not regularly take any pain medication, that he has no health condition that would preclude running for one to three miles, that his treating physician had not placed him on restricted activity, and that he had not missed more than seven days of work in the last year due to any illness or injury. However, he did indicate that he had "bone, joint, or muscle problems that prevent regular exercise or become bothersome during exercise" - the Veteran did not specify the problem(s). A physician's note on the assessment states that he had been medically qualified to continue flying by the FAA. A January 2006 note from the Veteran's private physician states that his right upper extremity symptoms attributed to his cervical spine disability had "resolved spontaneously." VA afforded the Veteran another examination in April 2006. He reported gradual resolution of his neck pain, stiffness, and loss of motion, but continued to report some weakness of the right upper extremity. Upon examination, flexion was normal, extension was limited to 45 degrees, lateral bending was limited to 30 degrees, and axial bending bilaterally was 60 degrees. Reflexes were full and normal, but sensory examination revealed decreased sharpness on pin prick testing of the lateral upper extremity. All muscle testing was 5/5 except right bicep, tricep, and external shoulder rotation which were all 4+. The examiner attributed the neurological findings to neural and spinal stenosis. In later April 2006, the Veteran completed another Reserve Component Health Risk Assessment and indicated that his health was "excellent," that he did not regularly take any pain medication, that he has no health condition that would preclude running for one to three miles, that his treating physician had not placed him on restricted activity, that he had no "orthopedic problems that prevent regular exercise or become bothersome during exercise," and that he had not missed more than seven days of work in the last year due to any illness or injury. An August 2006 examination addendum states that the Veteran does have residual radiculopathy associated with his service-connected cervical spine disability. During the January 2007 Board hearing, the Veteran testified that his neck had not changed in severity since the last VA examination, that he misses approximately three to four days of work each year due to a combination of back and neck problems, and that he still experiences radiculopathy manifested as some weakness in the right upper extremity. The Veteran reported taking over-the-counter pain medication such as Tylenol for neck pain and that neck ache and stiffness often made it uncomfortable for him to swivel his head as required by his work as a pilot. In April 2007, the Veteran completed another Reserve Component Health Risk Assessment and indicated that his health was "good," that he regularly takes Advil for back pain, that he has back pain with physical activity, that he has a (unspecified) health condition that would preclude running for one to three miles, and he had "orthopedic problems that prevent regular exercise or become bothersome during exercise," but that his treating physician had not placed him on restricted activity. He also indicated that he had missed more than seven days of work in the last year due to illness or injury. A physician notation on the assessment reflects that the Veteran's problems were limited to back pain, and that, despite the back pain, he had been medically cleared for commercial flight. A June 2007 VA examination specific to a lumbar spine disability reflects that the Veteran was still working as a commercial airline pilot and that, although he had missed 10 to 12 days of work over the last year, those absences were attributable to his back. The medical evidence of record shows that forward flexion of the cervical spine has not been limited to 15 degrees or less and there is no favorable ankylosis of the entire cervical spine. Due to the lack of any such findings, the Veteran is not entitled to a higher, 30 percent rating under the General Rating Formula. Moreover, as there were no incapacitating episodes, there is no basis for rating the Veteran's cervical disc disease based on the formula for rating IVDS based on such episodes. In addition, other than the symptoms relating to the right upper extremity radiculopathy for which the Veteran is being separately compensated, the neurological findings of record - October 2004 and April 2006 VA examinations - reflect that there are no additional associated neurological abnormalities warranting a higher rating under the General Rating Formula. The Board notes that the Veteran is certainly competent to report his symptoms, and his complaints of pain and stiffness have been considered. However, although VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with the rating criteria (38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-07), the evidence does not reflect any additional functional loss after repetitive motion testing that is commensurate with the degree of motion loss required for a higher rating. Moreover, as specified the General Rating Formula, the rating criteria apply "with or without symptoms such as pain (whether or not it radiates), stiffness, or aching." 38 C.F.R. § 4.71a. In view of the foregoing, even after taking the factors identified in sections 4.40 and 4.45 and DeLuca into consideration, the Board finds that a disability rating in excess of 20 percent may not be granted under the pertinent rating criteria. For all the foregoing reasons, the Board concludes that there is no basis for staged rating, pursuant to Fenderson, and that the claim for an initial rating in excess of 20 percent for cervical disc disease, C-7 fracture must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating. See 38 U.S.C.A § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). D. Other Considerations The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this appeal has the disability been shown to be so exceptional or unusual to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1) (cited in the May 2004 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b) (1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B (5) (c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned ratings are therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b) (1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular rating criteria are adequate to rate the disability under consideration at all pertinent points. A comparison between the symptomatology of the claimant's disability with the established criteria provided in the rating schedule reveals that his disability picture is adequately addressed by the rating schedule. Specifically, the General Rating Formula for Diseases and Injuries of the Spine contemplate the symptoms experienced by the Veteran-specifically, pain and loss of range of motion-and that Formula provides for higher ratings based upon a showing of additional or more significant impairment that the Veteran does not have, such as severe muscle spasms, anklylosis, and IVDS with incapacitating episodes. Hence, the rating schedule fully contemplates the symptomatology described by the Veteran and provides for ratings higher than that assigned when warranted. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. As the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b) (1) is not met, referral for consideration of an extra-schedular rating is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board further notes that, in certain circumstances, a claim for total disability rating based on individual unemployability due to service-connected disability (TDIU) may be considered a component of a claim for higher rating when the inability to work due to the disability under consideration is raised by the Veteran or the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, such is not the case here. The evidence of record reflects that the Veteran is currently employed and has been employed throughout the appellate period. Although he has contended that his cervical spine disability can result in discomfort while he is working, he has not contended that disability renders him unable to work. As such, consideration of the Veteran's entitlement to a TDIU due to his cervical spine disability in the context of the current claim for increase is not required. ORDER An initial rating in excess of 20 percent for cervical disc disease, C-7 fracture, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs