Citation Nr: 1329705 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 10-06 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for a cervical spine strain post injury with headaches. 2. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches. 3. Entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2001 to December 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for a cervical spine strain post injury with headaches and service connection for radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches. The Board notes that on the VA Form 9, the Veteran requested a 10 percent rating for radiculopathy, right upper extremity, secondary to cervical spine strain post injury with headaches. The Veteran had previously been granted a 10 percent rating for this disability in the August 2008 rating decision. Therefore, the Veteran has received the disability rating requested for radiculopathy of the right upper extremity and that issue is not before the Board at this time. The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. . FINDINGS OF FACT 1. The Veteran's service-connected cervical spine strain post injury with headaches has not resulted in motion limited to 30 degrees or less forward flexion of the cervical spine, a combined range of motion of the cervical spine of 170 degrees or less, or in muscle spasm or guarding resulting in abnormal gait or spinal contour; incapacitating episodes have not been shown and associated objective neurologic abnormalities have been rated separately. 2. The Veteran's service-connected radiculopathy, left upper extremity, has been manifested by mild incomplete paralysis of the ulnar nerve with subjective symptoms such as pain, numbness, and cramping, but with few objective manifestations; complete paralysis has not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected cervical spine strain post injury with headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8616 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Moreover, as it pertains to the claims for higher initial ratings, where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes 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). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the Veteran and his representative, VA treatment records, private medical records, and several VA examinations, including the most recent examination from March 2010. Each examination was adequate because the examiners reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Moreover, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2008). The present appeal involves disability of the musculoskeletal system. Specifically, the Veteran's cervical spine strain post injury with headaches is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Scheduler ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes found at 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of the injury or disease. 38 C.F.R. § 4.71a. The General Formula provides that an evaluation of 10 percent rating is warranted for: Forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or the 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 an abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for: Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted for: Forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for: Unfavorable ankylosis of the entire cervical spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a at Note (5). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the cervical spine is 340 degrees. Id. at Note (2). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned where there are incapacitating episodes having a total of at least one week but less than two weeks during the past twelve months. Id. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. Id. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. Id. A 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The factors involved in evaluating and rating disabilities of the joints include increased or limited motion, weakness, fatigability, incoordination, painful movement, swelling, deformity or disuse atrophy. 38 C.F.R. § 4.45. Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. Deluca v. Brown, 8 Vet. App. 202, 207-08 (1995). An August 2002 Medical Evaluation Board report, signed by "Dr. T.J.," included range of motion for the cervical spine. At that time, the Veteran demonstrated flexion to 50 degrees, extension to 50 degrees, left lateral flexion from zero to 30 degrees, left lateral rotation from zero to 85 degrees, right lateral flexion from zero to 30 degrees, and right lateral rotation from zero to 85 degrees. Dr. T.J. noted that "all of those motions increase the patient's pain." In addition, the report indicates that the Veteran reported neck pain, but she denied any radiating pain into the arms. The Veteran did, however, indicate "some numbness in the left hand." In May 2008, the Veteran was afforded a VA examination. The Veteran demonstrated forward flexion of zero to 35 degrees, extension from zero to 30 degrees, left lateral flexion from zero to 30 degrees, left lateral rotation from zero to 65 degrees, right lateral flexion from zero to 30 degrees, and right lateral rotation from zero to 60 degrees. The Veteran's combined range of motion of the cervical spine was 250 degrees. The Veteran exhibited increased pain on motion, but there was no additional loss of motion on repetitive use of the joint. The Veteran also indicated that she experienced painful flare ups on a weekly basis that lasted thirty minutes to an hour. During the examination, the Veteran displayed a normal gait and posture. Moreover, the examiner did not find objective abnormalities of the cervical spine; the examiner noted there was no finding of scoliosis, reversed lordosis, or kyphosis. Although there was indication of spasm in the left and right side of the cervical spine, there was no indication of guarding or weakness. There was a negative history of fatigue. Furthermore, the examiner concluded that localized tenderness or guarding was not found to be severe enough to be responsible for abnormal gait or abnormal spinal contour. Lastly, the examination report noted that there were no episodes of incapacitation in the twelve months prior to the examination. Turning to the Veteran's radiculopathy, the Veteran described daily numbness, tingling, and sharp pain in her upper extremities. The examiner indicated the presence of nerve dysfunction in the form of neuritis. The examiner also noted decreased vibration and pain in the upper left extremity. However, positional sense was normal, and there was no finding of paralysis. In addition, muscle tone and bulk was normal, there was no muscle atrophy noted, and there was no abnormal sensation in either the upper or lower extremities. Muscle strength was noted to be 5/5 in the left elbow extension and flexion, left wrist flexion and extension, and finger abduction in the ulnar nerve. Ultimately, the examiner concluded there was no objective evidence of radiculopathy. Also in May 2008, a neurology consult was performed in which an electromyogram revealed normal nerve conduction. In June 2008, an MRI was performed at Northwest Imaging. The medical professional found that there was "normal alignment of the cervical vertebra" and "no significant central or lateral stenosis." In December 2008, the Veteran sought a second opinion from "Dr. M.A." Dr. M.A. examined the Veteran, noting that limitations in the range of motion were "mainly to hyperextension and lateralization toward the left." Regarding the June 2008 MRI, Dr. M.A. indicated that he found "extradural defects" and recommended another MRI to further evaluate the Veteran's condition. At the consultation, Dr. M.A. also noted "weakness of [the Veteran's] left biceps and triceps, flexors and extensors of the left wrist and the left hand grip." Next, in April 2009, the Veteran sought treatment for back pain at the Shreveport VA Medical Center. The Veteran described the pain and weakness in the cervical spine as well as spasms. Upon examination, the medical professional noted that the neurological examination was normal, and the Veteran's "cervical spine motion [was] full in all directions." In addition, the Veteran reported intermittent numbness and tingling in the left upper extremity. The medical professional found "mild downward spreading of the reflexes on the upper left extremity." The medical professional noted the following: "Motor exam is normal with normal bulk, tone, and strenght [sic], sensory exam is intact to all modalities, coordination and cerebellar function is normal." In May 2009, the Veteran underwent another MRI, which revealed that "the cervical spine shows minimal insignificant scoliosis convexity to the ride side." The medical professional identified the results as a "normal study" and indicated that "insignificant scoliosis may be positional in nature and also may be due to underlying posture asymmetry." The Veteran received another VA examination in May 2009 in which the Veteran exhibited "full active and passive range of motion." The Veteran did not complain of pain during the examination and denied cervical tenderness with palpation of the cervical spine. The examiner noted the Veteran had a normal gait and did not experience flare ups of her condition. The examiner indicated there was no evidence of nerve impingement or radiculopathy and noted previous normal nerve conduction studies in support of that finding. Ultimately, the examiner concluded that the Veteran's joints were not affected by the peripheral nerve condition. In June 2009, another neurology consult was performed that revealed normal nerve conduction. Most recently, during the March 2010 VA examination, the Veteran demonstrated forward flexion of zero to 45 degrees, extension from zero to 45 degrees, left lateral flexion from zero to 45 degrees, left lateral rotation from zero to 80 degrees, right lateral flexion from zero to 45 degrees, and right lateral rotation from zero to 80 degrees. The Veteran's combined range of motion of the cervical spine was 340 degrees. The Veteran did not exhibit objective evidence of pain on active motion, nor did the Veteran experience additional limitation of motion upon repetitive testing. Upon physical examination, the Veteran displayed a normal gait, balance, and posture. Moreover, the examiner did not find objective abnormalities of the cervical spine, such as scoliosis, reversed lordosis, or kyphosis. The examiner acknowledged the Veteran's contention that she experiences muscle spasms at night; however, the muscle spasm, localized tenderness or guarding was not found to be severe enough to be responsible for abnormal gait or abnormal spinal contour. In addition, there were no episodes of incapacitation in the twelve months prior to the examination, and there was no history of fatigue or weakness noted. In terms of the Veteran's radiculopathy, the examiner did not find nerve dysfunction and noted that the function of any joint was not affected by a nerve disorder. Muscle tone and bulk was normal, and there was no muscle atrophy noted. Muscle strength was normal and cranial nerves intact. Vibratory sense, positional sense and reflexes were normal, and there was no evidence of chorea. The examiner noted the Veteran's reported feelings of weakness in the hand and identified decreased manual dexterity with problems lifting and carrying. For example, the examiner noted the Veteran's report that she has difficulty spreading her fingers on her left hand and that she may drop a pan if she tried to pick it up. Based on the evidence described above, the Board finds that a preponderance of the evidence is against an increased evaluation in excess of 10 percent for the Veteran's service-connected cervical spine strain post injury with headaches. First, under the General Formula, the Veteran was never found to have muscle spasm or guarding that resulted in abnormal gait or contour; her gait and contour have been found to be normal. Moreover, the record fails to show either ankylosis or a fractured spine. Finally, the evidence does not show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees or a combined range of motion of the cervical spine not greater than 170 degrees. The General Formula also indicates that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 at Note (1). In this case, there are no objective findings of bowel or bladder impairment noted in the examination reports. For example, the March 2010 examination report is negative for a history of urinary incontinence, urgency or frequency. Moreover, as will be discussed in more detail below, VA has already rated the Veteran's neurological condition involving the left upper extremity separately under Diagnostic Code 8616. The Board also notes the Veteran's complaints regarding pain and numbness in her left lower extremity. The RO denied service connection for left leg numbness and pain in July 2009 and provided the Veteran with notice of her appellant rights. The Veteran did not file a timely appeal for this issue, and, therefore, entitlement to service connection for left leg pain and numbness is currently not before the Board. The preponderance of the evidence is also against assigning a scheduler rating higher than 10 percent for under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The May 2008 and March 2010 examinations indicate that the Veteran had not had any incapacitating episodes in the past twelve months. There is also no evidence in the record showing that the Veteran has ever required bed rest, as prescribed by a physician. Therefore, the Board finds that the Veteran's cervical spine strain post injury with headaches continues to warrant a 10 percent rating under Diagnostic Code 5237. See 38 C.F.R. § 4.71a. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In the March 2010 and May 2009 VA examinations, the examiner specifically performed additional limitation of motion testing upon the Veteran after repetitive use of her back. Although there was objective evidence of pain following repetitive motion in the May 2009 examination, there was no such evidence in the March 2010 examination. During both examinations, the examiner noted the Veteran did not experience additional limitations of range of motion of her back following repetitive-use testing. Moreover, there was no finding of weakness or fatigue at either examination. As such, the Board finds the DeLuca factors have been explicitly considered by the Board and the medical evidence of record, and a higher rating is not warranted based on additional functional loss due to repetitive use. The Board has also considered the May 2009 MRI, which revealed "minimal insignificant scoliosis convexity to the ride side." The medical professional identified the results as a "normal study" and indicated that "insignificant scoliosis may be positional in nature and also may be due to underlying posture asymmetry." The Board recognizes that abnormal spinal contour, such as scoliosis, is contemplated in the 20 percent rating criteria under the General Formula. However, the May 2009 MRI report specifically characterizes the scoliosis as minor and insignificant. Furthermore, there is no other finding of abnormal spine contour in the evidence of record. Indeed, in the May 2008 and March 2010 VA examinations, the examiners found no such objective abnormalities of the cervical spine. Moreover, the Board has considered the application of various other provisions of regulations governing VA benefits with regard to the Veteran's complaints of headaches. See Schafrath, 1 Vet. App. at 595. Specifically, the Veteran has asserted that she suffers from headaches. In statements from August 2002 and April 2009, the Veteran indicated she had headaches on a daily basis. Most recently, in March 2010, the Veteran indicated that she had headaches about once or twice a week and that her condition has improved since onset. The Veteran's headaches have been rated as part of the service-connected cervical spine disability and have not been shown to be of sufficient severity to approximate a separate rating. Therefore, rating the condition under Diagnostic Code 8100 for migraines would be inappropriate in this case. As previously indicated, the Veteran has been granted service connection for radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches. The Veteran's neurological condition was evaluated as 10 percent disabling under Diagnostic Code 8616. The Veteran appealed that decision, and the Board will now discuss entitlement to higher initial rating. As directed by 38 C.F.R. § 4.124a, Diagnostic Code 8616 provides for a 10 percent schedular disability rating for mild symptoms involving the ulnar nerve of either the major or minor side. With moderate symptoms involving the ulnar nerve, a 30 percent rating is assignable for the major side, and a 20 percent rating is assignable for the minor side. With severe symptoms involving the ulnar nerve, a 40 percent rating is assignable for the major side, and a 30 percent rating is assignable for the minor side. With complete paralysis of the ulnar nerve, a 60 percent rating is assignable for the major side, and a 50 percent rating is assignable for the minor side. 38 C.F.R. § 4.124a, Diagnostic Code 8616. Symptoms of complete paralysis are noted to include the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; and flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8616. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by these organic changes will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2012). Words such as "mild," "moderate," "severe" and "pronounced" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). After review of the evidence of record, the Board finds that the Veteran's radiculopathy of the left upper extremity is productive of no more than mild impairment. The Veteran has described symptoms such as pain, tingling, cramping and numbness in the left upper extremity throughout the appeal period, and there have been some findings of decreased senses of vibration and pain in the left upper extremity, specifically during the May 2008 VA examination. However, in that same examination report, muscle strength was noted as a 5/5, and there was no abnormal sensation in the upper extremities. Furthermore, in the subsequent March 2010 VA examination, vibratory sense, positional sense, and reflexes were normal. Moreover, nerve conduction studies were normal in May 2008 and June 2009, and VA treatment notes from April 2009 also describe the Veteran's condition as "mild downward spreading of the reflexes on the upper left extremity." Physical examinations yielded normal muscle bulk, tone, and strength in May 2008, April 2009, and March 2010, and muscle atrophy was not noted at any time during the appeal period. Therefore, the Veteran's radiculopathy of the left upper extremity did not manifest symptoms that were moderate in degree at any point during the appeal period and complete paralysis has not been shown. As such, an initial disability rating in excess of 10 percent for radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches, is denied. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to an initial disability rating in excess of 10 percent for a cervical spine strain post injury with headaches and entitlement to an initial disability rating in excess of 10 percent for radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches. Consequently, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied on a schedular basis as to both of the aforementioned issues. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3, 4.7. Extraschedular Consideration Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director of the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)(2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular scheduler standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The United States Court of Appeals for Veterans Claims has held that VA's disability-by-disability interpretation of 38 C.F.R. 3.321(b)(1) is not unreasonable, plainly erroneous, or inconsistent with the regulation or the statutory and regulatory scheme when viewed as a whole, thus the Board was not required to consider whether a veteran's was entitled to referral for extra-schedular consideration of the service-connected disabilities on a collective basis. See Johnson v. Shinseki, 26 Vet. App. 237, 239-40 (2013). First, with regards to the Veteran's service-connected cervical spine strain post injury with headaches, the Board finds that the scheduler rating criteria adequately contemplate and describe the symptoms and impairment caused by the disability as found at 38 C.F.R. § 4.71a and applied with consideration of 38 C.F.R. § 4.40, § 4.45, and § 4.59. The Veteran's reported symptoms included pain limitation of motion, loss of motion due to pain, and weakness. However, these symptoms are contemplated under the relevant rating criteria. Therefore, the first prong of Thun is not satisfied and the Board declines to remand this issue for referral for extraschedular consideration. Turning to the Veteran's radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches, the Board also finds that the scheduler rating criteria adequately contemplate and describe the symptoms and impairment caused by the disability as found at 38 C.F.R. § 4.124a. The schedular rating criteria, Diagnostic Code 8616, provides for disability ratings based on both incomplete and complete paralysis and 38 C.F.R. § 4.123 characterizes neuritis by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. In this case, the Veteran's radiculopathy of the left upper extremity included symptoms of pain and sensory disturbances. These symptoms are part of the schedular rating criteria. Moreover, the evidence of record does not demonstrate frequent hospitalization as a result of the Veteran's radiculopathy. Therefore, the first prong of Thun is not satisfied and the Board declines to remand this issue for referral for extraschedular consideration. ORDER 1. Entitlement to an initial disability rating in excess of 10 percent for a cervical spine strain post injury with headaches is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches is denied. REMAND The Board finds that an inferred claim for TDIU has been raised based on the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the March 2010 VA examination, the Veteran indicated that she currently is a homemaker and has been unemployed for the past five to ten years. The Veteran attributed her unemployment to neck pain, headaches and weakness in her hands. As described, the Veteran currently is service connected for a cervical spine strain post injury with headaches as well as radiculopathy, left upper extremity, secondary to cervical spine strain post injury with headaches. Therefore, the Board finds that an inferred claim for TDIU has been raised, and the evidence of record must be considered by the AOJ to determine whether the service-connected disabilities render the Veteran unable to obtain or maintain substantially gainful employment. The Board notes that the Veteran's service-connected disabilities produce a combined disability rating of 30 percent. 38 C.F.R. § 4.25. As such, the Veteran does not meet the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. She may, however, be entitled to a TDIU based on extra-scheduler considerations under 38 C.F.R. § 4.16(b). 38 C.F.R. § 4.16(b) allows for a veteran who does not meet the threshold requirements for the assignment of a TDIU but who is deemed by the Director of Compensation and Pension Services to be unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities to be rated totally disabled. The Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on employability must be considered and the claim submitted to the Director for determination. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran additional VCAA notice as to what is needed to substantiate a claim for entitlement to a TDIU, and undertake any development necessary before adjudication. 2. Then, readjudicate the issue of entitlement to service connection for TDIU on the merits, to include consideration of whether referral to the Director of Compensation and Pension service is warranted under 38 C.F.R. § 4.16(b). If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. Then return the case to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs