Citation Nr: 1330059 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 07-27 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a lumbar back condition. 2. Entitlement to an increased rating for cervical spine degenerative disc disease, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1993 to September 1996 and from December 1996 to February 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2011, wherein the Board reopened a previously denied claim for service connection for a lumbar back condition, and remanded that issue and the cervical spine issue for additional development on the merits. FINDINGS OF FACT 1. The Veteran was notified on several occasions of the time and place for scheduled VA examinations in connection with his claims, and attempts were made to ascertain his availability. 2. The Veteran failed to report for the rescheduled VA examinations and did not respond to the request for information concerning his availability to reschedule the examination. 3. The medical evidence of record shows that the Veteran's cervical spine disability has not resulted in forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine, or incapacitating episodes of intervertebral disc disease. 4. The medical evidence of record reflects decreased grip strength in the left hand and a diagnosis of cervical radiculopathy. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a lumbar back condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2013). 2. The criteria for a disability rating in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242, 5243 (2013). 3. The criteria for a 10 percent disability rating for cervical radiculopathy of the left upper extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, The Spine, Note (1), 4.124a, Diagnostic Code 8515 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in May 2006 and May 2008 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in April 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. Most recently, the Veteran was scheduled for a VA examination in April 2011. Additional attempts were made to schedule the Veteran in July 2011 and August 2011, but the VA Medical Center (VAMC) was advised that the Veteran was in Afghanistan as a civilian contractor until October 15, 2011. Thereafter, the Veteran's wife reported he had been extended and would not be returning until early February. An examination was scheduled in March 2012, but the VAMC cancelled it for lack of information. In April 2012, the Appeals Management Center (AMC) issued a letter to the Veteran asking him to notify them of when he would be back in the United States and available for a VA examination. He did not respond to this letter. The AMC endeavored to undertake development as instructed by the Board's April 2011 remand. Updated VA treatment records were obtained through November 2007, when it was noted that Veteran cancelled most appointments and his phone was disconnected. Attempts were also made, as noted above, to schedule the Veteran for VA examinations, but the Veteran was unable to report and has not responded to the request for information concerning his availability for an examination. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has not indicated the existence of additional pertinent evidence. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the 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). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran seeks service connection for a lumbar back condition. As noted above, his claim was reopened by an April 2011 Board decision. Service treatment records show that the Veteran complained of low back pain in September 1993. The Veteran reported his low back pain would come and go depending on the exercises performed during physical training. The Veteran's 1996 enlistment examination and the December 2000 separation examination did not reflect any complaints or findings of a low back condition. VA outpatient treatment records reflect that in June 2004, the Veteran suffered from tender spasms of the left lower back and in August 2006, the Veteran suffered from chronic low back pain. At an August 2006 VA examination for the cervical spine, the Veteran underwent an MRI of the lumbar spine and was diagnosed with minimal facet degenerative joint disease at the L4/5 and L5/S1 levels. He also reported having low back problems since 1998. An October 2006 VA outpatient treatment record shows complaints of low back pain. The Veteran stated that the pain increased in severity with prolonged sitting or standing. The record reflects that the Veteran was scheduled for several VA examinations in relation to his claim. The record reveals, however, that he was unable to report for these examinations presumably because he was working as a civilian contractor in Afghanistan. Contact with the Veteran and/or his wife was made, with the last attempt to schedule an examination being in March 2012. Ultimately, the AMC issued a letter to the Veteran asking him to notify them when he would be returning to the states and would be available for an examination. To date, the Veteran has not replied. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board acknowledges the Veteran's representative has asked that the examination be rescheduled. However, as the Veteran has not responded to the April 2012 letter indicating his availability, it must be presumed that he is either not available or not interested in responding. In either event, there is no indication that he is now available for such examination, and the representative has not alleged otherwise. In this case, although the Veteran was seen in service for a complaint of low back pain, a chronic back disability, such as arthritis, was not shown during service. 38 C.F.R. § 3.309(a). Moreover, arthritis in his lower back was not shown by objective testing until August 2006, more than five years following his discharge from service. Accordingly, to establish service connection for his current back disability, a VA examination is necessary. 38 C.F.R. § 3.159(c)(4). The Veteran was unable to report to the scheduled VA examinations, and has not responded to the April 2012 letter asking for information concerning his availability to report for such examination. There is no medical opinion of record linking a current back disability to service and his inability and/or unwillingness to report leaves the record devoid of competent evidence upon which service connection can be based. To the extent the Veteran believes his current back disability is related to service, there is no indication that he has specialized training in diagnosing or determining the etiology of spine disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, diagnosing musculoskeletal back disorders requires medical testing to identify the cause of the back pain, and such disabilities can have many different causes, thereby requiring medical expertise to determine the etiology. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current back disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the diagnosis and etiology of his back complaints is not competent medical evidence. Here, a VA examination was needed to determine the current nature of his back disability and whether such was related to his active military service. The Veteran was scheduled for such an examination but was unable to appear. However, despite a request for such information, the Veteran has not indicated that he is willing/able to report for an examination, and the record is devoid of competent medical evidence linking his current back disability to service. Accordingly, the record does not establish that the requirements for service connection have been met, and the claim is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2013). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Veteran's service-connected cervical spine degenerative disc disease is currently rated as 20 percent disabling under Diagnostic Codes (DC) 5242. The regulations provide for evaluation of the spine under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2013). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the 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 contour such as scoliosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less or for favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2013). These ratings are warranted if the above-mentioned manifestations are present, with or 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 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 of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2); see also 38 C.F.R. § 4.71a, Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. An incapacitating episode is 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. 38 C.F.R. § 4,71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2013). The Veteran contends that service-connected cervical spine degenerative disc disease is worse than the 20 percent disability rating presently assigned. November 2005 VA outpatient treatment records show that the Veteran complained of chronic neck pain and tingling in his right arm. May 2006 VA outpatient treatment records reflect that the Veteran complained about a numbness and tingling sensation in his left upper extremity. He also reported experiencing a sharp pain from his dorsal neck to the area below his right ear. At the Veteran's August 2006 VA spine examination, the Veteran complained of constant episodes of pain. He also complained of decreased range of motion in his neck. The Veteran stated that he suffered from flare-ups that lasted 4-7 days, every 2-3 weeks. During the flare-ups, the Veteran stated that his range of motion was severely decreased in all directions in his neck. He indicated that his baseline pain was a 10, with pain medication reducing it to a 5, and during flare-ups, it "feels like it's 15." The Veteran complained of fatigue and stiffness. The Veteran also stated that pain radiated down his left shoulder and arm daily and that he suffered from a sharp, stabbing pain that radiated to the right posterior ear. He subjectively reported fatigue, severe stiffness, moderate weakness, mild spasms and radiating pain. Upon examination, the Veteran's range of motion for forward flexion was 0 to 35 degrees. Pain began at 25 degrees and ended at 35 degrees. The Veteran's extension was 0 to 30 degrees and pain began and ended at 30 degrees. The Veteran's left and right lateral flexion was 0 to 30 degrees. The Veteran's pain began and ended at 30 degrees. The Veteran's left and right lateral rotation was 0 to 30 degrees. Pain began and ended at 30 degrees. The examiner noted additional limitation of motion on repetitive use. There was no additional loss of motion with repetition except for the cervical flexion which decreased to 0-30 degrees, with complaints of pain. The Veteran's motor strength of the upper extremities was 5/5, but the examiner noted a slight decrease in hand grip strength in the left arm. The Veteran's sensation to light touch and position sense in the left and right upper extremities was 2/2. The Veteran's reflex results for his left and right upper extremities were normal. The examiner noted a slight tilt to the right when the Veteran was seated. His gait was normal in appearance but the examiner noted that he ambulated to the right when his head was tilted in that direction. On objective examination, there was no ankylosis, spasms, atrophy, weakness, or guarding found. October 2006 VA outpatient treatment records show that the Veteran stated that he suffered from pain which radiated to his left shoulder and arm. He denied any symptoms in his right arm. September 2007 VA outpatient records show complaints of numbness down the back of his left arm which extended into his 4th and 5th fingers. Physical examination noted decreased neck motion, but no weakness in the extremities. Deep tendon reflexes were 2+. The clinician diagnosed chronic neck pain, degenerative joint disease, numbness of left arm and offered a trial of medication for muscle spasm. An MRI was scheduled, but the VAMC was unable to contact the Veteran as the home phone was disconnected. A message was left on the spouse's cell phone, and it was noted that the Veteran had cancelled most all of prior and future appointment. The Board remanded this claim to afford the Veteran an updated VA examination. However, as detailed above in the lumbar spine claim discussion, he was not able to report to the examinations, and has not responded to the request in April 2012 to advise VA of his availability to report for such examination. See Wood, 1 Vet. App. at 193. Thus, information as to the current status of his disability could not be obtained. After a review of the entire record, the Board finds that the evidence more closely approximates the criteria for a 20 percent rating for his cervical spine disability. At the August 2006 VA examination, the Veteran's forward flexion was to 35 degrees, which actually supports only a 10 percent rating under Diagnostic Code 5242. Upon repetition, his range of motion was 0 to 30 degrees, with pain associated with movement. The Board recognizes that the Veteran was found to have pain during range of motion testing; however, even with that finding, the evidence does not show that the Veteran's range of motion is limited by that pain such that his motion was limited to 15 degrees or less. In addition, there was no ankylosis of the cervical spine found upon examination. The Board has also considered whether separate ratings for neurologic complaints are warranted. Although the Veteran has subjectively reported in his VA outpatient treatment records and VA examination that he has pain and sporadic numbness in his upper extremities, the objective findings from examination report indicated completely normal sensory, motor and reflexes evaluations for both upper extremities. However, the August 2006 examiner did note that the Veteran's left arm grip was slightly decreased. Additionally, an October 2006 VA treatment record noted decreased pin prick on the left arm. A September 2007 treatment report, wherein the Veteran complained of neck pain radiating to the left arm and hand, yielded a diagnosis of degenerative joint and disc disease of the cervical spine with radiculopathy. At that time, decreased strength in the arm and hand was noted but t here was no atrophy. In light of the objective findings regarding the left arm and hand, the Board finds a separate 10 percent rating under Diagnostic Code 8515 for left arm radiculopathy is warranted. As motor strength has been shown to be full and his decreased grip strength was noted to be slight by the VA examiner, moderate incomplete paralysis has not been shown such that a higher rating is warranted. 38 C.F.R. § 4.124a. As noted above, the right upper extremity has no objective neurological findings, and a separate rating for that extremity is not warranted. 8 C.F.R. § 4.124a. The Board has also considered whether a higher rating could be assigned based on incapacitating episodes of intervertebral disc disease. The Veteran does not claim and the evidence of record does not show that the Veteran suffered from incapacitating episodes due to intervertebral disc syndrome involving the cervical spine which required bed rest prescribed by a physician and treatment by a physician. As such, a rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). The Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 20 percent for a degenerative disc disease of the cervical spine, but that a separate 10 percent rating, but no higher, is warranted for radiculopathy of the left upper extremity. As a final matter, the Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria and the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59 describe the Veteran's disability level and symptomatology, and the rating criteria provide for additional or more severe symptoms than currently shown by the evidence. While the Veteran has argued his disability impacts his work, the record reflects he is employed as a civilian contractor in Afghanistan, and there is no indication of significant time lost. Indeed, his time there was actually extended. Thus, the Board finds his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered and applied the benefit of the doubt doctrine to the extent a separate 10 percent rating was awarded for the left upper extremity. However, as the preponderance of the evidence is otherwise against the Veteran's claim, the doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a lumbar back condition is denied. Entitlement to a rating in excess to 20 percent disabling for a degenerative disc disease of the cervical spine is denied. Entitlement to a separate 10 percent rating for cervical radiculopathy of the left upper extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs