Citation Nr: 1331062 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-09 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a chronic disability, characterized by residuals of left ear infections. 2. Entitlement to service connection for a chronic right upper extremity disability, claimed as numbness and tingling of the right first and third digits, including as secondary to the service-connected low back and cervical spine disabilities. 3. Entitlement to an initial rating higher than 10 percent for colonic diverticulosis, esophageal ulcer, gastritis, gastroesophageal reflux disease (GERD), and hiatal hernia. 4. Entitlement to an initial rating higher than 10 percent for degenerative disc disease and degenerative joint disease of the thoracolumbar spine (thoracolumbar spine disability). 5. Entitlement to an initial rating higher than 10 percent for degenerative disc disease and degenerative joint disease of the cervical spine (cervical spine disability), from October 1, 2004 to May 3, 2012; and higher than 20 percent since May 4, 2012. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 2004. This appeal to the Board of Veterans' Appeals (Board) is from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a Board hearing in September 2011. A transcript is of record. In March 2012, the Board remanded the claims on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. At the time of the March 2012 remand, one of the issues was entitlement to service connection for numbness and tingling of the left first and third digits. In a February 2013 rating decision, the RO granted service connection for this disability. Thus this issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). This decision also increased the rating for the cervical spine disability from 10 to 20 percent, effective from May 4, 2012, the date of a VA examination. His appeal continues for a higher rating. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue of entitlement to service connection for a dental disability, as secondary to the service-connected gastrointestinal disability, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The preponderance of evidence does not show a chronic right upper extremity disability, claimed as numbness and tingling of the right first and third digits. 2. The preponderance of evidence does not show a chronic disability, characterized by residuals of left ear infections. 3. The Veteran's gastrointestinal disability, diagnosed as hiatal hernia, GERD and diverticulosis, has not been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 4. The evidence does not show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined thoracolumbar spine range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. 5. Resolving any doubt in the Veteran's favor, his thoracolumbar spine disability involves a mild radiculopathy/sciatic neuropathy of the left lower extremity. 6. Although the Veteran has been diagnosed with intervertebral disc syndrome (IVDS) of both the thoracolumbar and cervical spine, he has not manifested any incapacitating episodes requiring prescribed bed rest. 7. From October 1, 2004 to May 3, 2012, the evidence does not show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined cervical spine range of motion not greater than 170 degrees, or muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. 8. Since May 4, 2012, the evidence does not show forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. A chronic disability, characterized by residuals of left ear infections was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 2. A chronic disability, characterized by numbness and tingling of the right first and third digits, was not incurred in or aggravated by the Veteran's military service, and is not secondary to his service-connected spinal disabilities. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.310 (prior to October 10, 2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria are not met for an initial rating higher than 10 percent for colonic diverticulosis, esophageal ulcer, gastritis, GERD, and hiatal hernia. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.114, Diagnostic Codes (DCs) 7301-7348 (2013). 4. The criteria are not met for an initial rating higher than 10 percent for the thoracolumbar spine disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5243 (2013). 5. The criteria are met for a separate, 10 percent rating, but no greater, for the Veteran's left lower extremity radiculopathy. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.124a, DC 8520 (2013). 6. For the time period from October 1, 2004 to May 3, 2012, the criteria are not met for an initial rating higher than 10 percent for the cervical spine disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5243 (2013). 7. Since May 4, 2012, the criteria are not met for a rating higher than 20 percent for the cervical spine disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty, under the Veterans Claims Assistance Act of 2000 (VCAA), to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. In December 2004, May 2005, and March 2012 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. He was also advised how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations in the March 2012 letter. The claim was readjudicated in the February 2013 Supplemental Statement of the Case (SSOC). With respect to the Veteran's initial rating claims for gastrointestinal, thoracolumbar and cervical spine disabilities, the Board notes that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (Dec. 22, 2003); 38 C.F.R. § 3.159(b)(3)(i). Because service connection for these disabilities has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to higher initial evaluations for these disabilities are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has also satisfied the duty to assist. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The Veteran's service treatment records, post-service VA and identified private treatment records, and relevant VA examination reports have been obtained and considered. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no contention or indication of other outstanding records. The Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned in September 2011. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). During the hearing, the undersigned identified all the issues on appeal. See transcript on pages 2-3. Not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. Id. at 497. Moreover, on the basis of the hearing discussion, the undersigned remanded these claims in March 2012 for VA examination to identify the nature and etiology of the claimed right hand and left ear disabilities, and to assess the current severity of the gastrointestinal, low back and cervical spine disabilities. The Board observes that, on remand, a VA examination addressing all the issues on appeal was obtained in May 2012. Altogether, the May 2012 VA examination and medical opinions and findings were thorough and adequate, since it was based on a review of the entire claims file, independent physical evaluation, and consideration of the lay statements and medical findings. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). There was substantial compliance with Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, VA has complied with the duty to assist. 38 U.S.C.A. § 5103A. II. Analysis-Service Connection The Veteran contends he has had post-service left ear pain and infection as directly attributable to service. He also claims numbness and tingling in his right upper extremity, to include the first and third digits, as secondarily related to his service-connected cervical and thoracolumbar spine disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). Since the Veteran's claim for a chronic right upper extremity disability was pending before 38 C.F.R. § 3.310(b) was amended in October 2006, the Board will consider the old version of the amendment, which clearly favors the claimant. At the outset, there is some, albeit inconclusive, evidence of in-service incurrence of a chronic left ear disability. The Veteran's service treatment records reflect that the Veteran had treatment for an ear infection in August 1979, bilateral otitis media in February 1984, left otitis in October 1998 and June 2001, and left otitis externa in January, April, and June 2003. In contrast, there is simply no contention of direct service connection as a basis for his claim of right upper extremity tingling and numbness, nor any indication of in-service incurrence of neurological disability or impairment in his right upper extremity, specifically. Most importantly in this case, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current, chronic disability, for either the claimed left ear pain and infection, or the claimed numbness and tingling in his right upper extremity, to include the first and third digits. The following medical evidence tends to show he does not have the claimed chronic left ear infection. A January 2005 VA general examination diagnosed otitis media, condition resolved. A January 2005 VA dental examination report noted possible left temporomandibular joint (TMJ) dysfunction of uncertain origin or possible left ear problem causing/contributing to pain. A January 2005 VA examination report reflects likely TMJ arthritis which is likely causing his ear pain; however, physical examination of the left ear was essentially normal, although there was a small amount of cerumen in the ear canal. A January 2005 VA audiological examination noted complaints of pain and ear infections in the left ear, but provided no pertinent diagnoses. An August 2009 QTC report reflects that with regard to the Veteran's claimed left ear infection, the examiner determined the condition had resolved with proper treatment. Specifically, he diagnosed otitis externa, "resolved." Subsequently, a May 2012 VA examiner opined against the claim, stating that, "At this time, there are no objective findings on examination which would support a diagnosis of left ear condition, including otitis media, otitis externa or any residuals thereof." The examiner appeared to base this upon review of the claims file, including unremarkable findings for any left ear disability, and normal physical evaluation and diagnostic testing of the left ear. The Board finds the VA examiner's opinion is highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Next, the overall medical evidence of record tends to show he does not have a chronic right upper extremity disability, including claimed numbness and tingling of the right first and third digits. A January 2005 VA examination report reflects an assessment of paresthesias, numbness and tingling of the thumbs and middle fingers of the right and left hands since 1993, unresolved, with continuous complaint of intermittent paresthesias, but importantly, a normal physical examination. A November 2005 private treatment record reflects that the Veteran sought emergency treatment for chest pain, including complaints of numbness and tingling in his left and right arms. An April 2009 general VA examination reflects no pathology with regard to the claimed numbness and tingling of the first and third digits. A neurological examination of the upper extremities appeared normal. Then, on remand, the May 2012 VA examiner opined against this right upper extremity claim, concluding, "There are no objective findings which support a diagnosis of right upper extremity and radiculopathy. There are no complaints at this time of 1st and 3rd finger symptoms." In marked contrast, the examiner did find objective evidence for cervical radiculopathy of the left upper extremity, as due to his service-connected cervical spine disability. Thus, it is clear that the examiner explicitly rejected clinical findings pertaining to the right hand after thorough consideration of the evidence. The examiner appeared to base his negative finding upon review of the claims file, including unremarkable findings for any right upper extremity disability, and upon normal physical evaluation and diagnostic testing of potential neurological dysfunction. The Board finds the VA examiner's opinion is highly probative evidence against the claim. See Nieves-Rodriguez, 22 Vet. App. 295. The Board acknowledges that the Veteran is competent to report having experienced ear pain and infections during active duty and continuity of symptoms since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr , 21 Vet. App. 303; and 38 C.F.R. § 3.159(a)(2). Nonetheless, he is not competent to ascribe these symptoms to a particular diagnosis of any chronic left ear disability or attribute any current left ear pain symptoms to his active duty service. Similarly, he is also competent to have experienced numbness and tingling of his right upper extremity, including his first and third digits. Id. That is, he is not competent to ascribe these symptoms to a particular diagnosis of any chronic right upper extremity disability or attribute any current neurological symptoms to his service-connected low back and/or cervical spine disabilities. Rather, specialized medical expertise as well as independent physical evaluation and diagnostic testing, such as performed by the VA examiners, are required to diagnose a chronic left ear disability and a chronic right upper extremity neurological disability. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (certain disabilities are not conditions capable of lay diagnosis). The Board finds that he is not competent to self-diagnose either claimed chronic disability, because this requires medical expertise that the Veteran fails to possess. Since the Board does not find the Veteran's lay statements to be competent to establish the missing element of a present disability for these respective claims, there is no need to consider the credibility of his lay statements in this regard, even though this, too, affects its ultimate probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Despite indications of in-service incurrence, the preponderance of the evidence is against a finding that the Veteran has current disabilities involving the left ear and the right hand. Nor are there any medical opinions etiologically linking a claimed right upper extremity disability to service or to his service-connected low back and/or cervical spine disabilities. See 38 C.F.R. § 3.310(a) and (b). The Board concludes that the evidence does not support the claims for service connection and there is no doubt to be otherwise resolved. III. Analysis-Increased Ratings for Gastrointestinal, Low Back and Cervical Spine Disabilities Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the Veteran has expressed dissatisfaction with the assignment of an initial rating, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). A. Gastrointestinal Disability The RO has service connected the Veteran for colonic diverticulosis, esophageal ulcer, gastritis, gastroesophageal reflux disease (GERD), and hiatal hernia, and assigned an initial rating of 10 percent, since service connection was established. He contends his gastrointestinal disability is more severe than has been rated and has progressively worsened. His current rating assignment is under 38 C.F.R. § 4.114 (digestive system), DCs 7346 (hiatal hernia)-7327 (diverticultis). By way of background, his service treatment records show treatment and diagnoses for probable gastritis in May 1990; and a small sliding hiatal hernia, GERD, and an esophageal ulcer in May 1999. Also during service, an August 2003 CT scan of his abdomen showed colonic diverticulosis and gastritis. As for the specific nature of the Veteran's gastrointestinal disability, the January 2005 VA examiner diagnosed with gastritis and an esophageal ulcer, the latter without recurrence since diagnosed in 1998. The April 2009 VA examiner diagnosed peptic ulcer disease for his claimed esophageal ulcer, and continued an established diagnosis of diverticulitis; but declined to diagnose GERD, hiatal hernia and colonic diverticulosis, because there was no pathology for any these disabilities. In contrast, the only gastrointestinal disabilities that the May 2012 VA examiner diagnosed were GERD, hiatal hernia and diverticulosis. Thus, based upon the Veteran's post-service records, it appears he has been diagnosed primarily with GERD, hiatal hernia, peptic ulcer/esophageal ulcer, diverticulosis, gastritis, and diverticulitis. The Board will accordingly rate this gastrointestinal disability based upon these diagnosed disabilities. Notably, he is already separately service connected for hemorrhoids, so that disability is not for consideration here. The disabilities of GERD and hiatal hernia appear to both be accounted for by DC 7346, for hiatal hernia. Under DC 7346 for hiatal hernia, a higher 30 percent rating is contemplated for persistently recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. The maximum 60 percent rating under DC 7346 is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent under DC 7346, for hiatal hernia. To warrant the next higher rating of 30 percent, there must be persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. In reading through the description of the Veteran's symptoms, he does not have that level of severity. For example, at the time of the January 2005 VA examination, the Veteran denied nausea, vomiting and regurgitation, but reported having esophageal pain, periodic diarrhea and constipation, intermittent left lower abdominal pain, and acid reflux. The January 2005 VA examiner did not note any objective findings on clinical testing to account for any claimed GERD and hiatal hernia. To the April 2009 VA examiner, the Veteran reported dysphagia, heartburn, epigastric pain, scapular pain, arm pain and reflux and regurgitation of stomach contents. However, the April 2009 VA examiner found no pathology for either GERD or hiatal hernia, and noted that, "The hiatal hernia/GERD disability does not cause significant anemia because there is no reflux or hiatal hernia noted on Upper GI results." There was no malnutrition. The Veteran reported to the May 2012 VA examiner that he had esophageal-related symptoms of dysphagia, pyrosis (heartburn), reflux with associated sleep disturbance of 4 times per year of at least 10 days average duration. Notably, though, the Veteran denied any episodes of epigastric distress, substernal arm or shoulder pain, anemia, weight loss, nausea, vomiting, hematesis, melena. He also denied any esophageal stricture, spasm or diverticulum of the esophagus. The criteria for a 30 percent rating under Code 7346 are stated in the conjunctive and must all be met to warrant such rating. That is, the Veteran must manifest recurrent epigastric distress with dysphagia (difficulty swallowing), pyrosis (heartburn), and regurgitation, accompanied by substernal or arm or shoulder pain, causing considerable impairment of health. Here, the Board acknowledges the Veteran's complaints of dysphagia, heartburn and regurgitation, but overall, the evidence does not show recurrent epigastric distress, or substernal or arm or shoulder pain. Although he appears to have acid reflux that keeps him up at night, there is not any indication that his GERD causes considerable impairment of health. As the listed criteria are not met, a 30 percent rating is not warranted under DC 7346. The Veteran has had colonic diverticulosis, but this does not provide any basis for a higher initial rating of at least 30 percent, especially as there is no applicable diagnostic code for this specific disability. Moreover, there do not appear to be any symptoms or manifestations attributed to diverticulosis. The April 2009 VA examiner found no pathology to diagnose such disability. He denied at the May 2012 VA intestinal examination that he had symptoms of diarrhea, constipation, abdominal distension, anemia, nausea, vomiting, bowel disturbance, weight loss, malnutrition, or any other functional impairment. Importantly, the May 2012 VA examiner provided a conclusion that the diverticulosis was asymptomatic. In light of the Veteran's diagnosed peptic ulcer/esophageal ulcer, the Board also considers DCs 7304 (gastric ulcer) and 7305 (duodenal ulcer), which provides a higher 20 percent rating for "moderate, recurring episodes of severe symptoms averaging 10 days in duration, or with continuous moderate manifestations." The Board finds that the preponderance of the evidence is against a higher initial evaluation in excess of 10 percent under DCs 7304 or 7305. For example, the January 2005 VA examiner noted the existence of an esophageal ulcer since diagnosed in service in 1998, but on physical evaluation, concluded that it was treated and that there is "no recurrence of the condition at this time." At his April 2009 VA exam, he reported that he had symptoms of dysphagia, heartburn, epigastric pain, scapular pain, arm pain and reflux and regurgitation, with symptoms occurring 3-4 times a month, lasting 6-8 hours. The examiner concluded, on physical evaluation, that objective factors of the esophageal ulcer/peptic ulcer are intermittent spacity in the bulb, although it initially appeared normal. The examiner added, "This may indicate some mild [for emphasis] degree of peptic disease, but it would appear to be minimal." The most recent VA examination in May 2012 concluded that there are no current findings on examination, records review of Richmond VAMC CPRS records, or current physical examination which support an ongoing diagnosis of esophageal ulcer. Thus, the overall evidence shows he had a mild, not moderate, esophageal ulcer, such that he does not warrant a 20 percent rating under DCs 7304 or 7305. As for the Veteran's gastritis, the rating criteria under DC 7307 provide a higher 30 percent rating for gastritis, hypertrophic, that is "chronic, with multiple small eroded or ulcerated areas, and symptoms." The Board finds that the preponderance of the evidence is against a higher initial evaluation in excess of 10 percent under DC 7307. For example, the January 2005 VA examiner noted the existence of gastritis since diagnosed in service in 1998 and that it has been treated by antacids, but made no findings based upon physical evaluation. Notably, on physical evaluation, the April 2009 VA examiner concluded that there was no pathology to diagnose gastritis. The examiner commented, the stomach condition does not cause significant anemia because there is no gastritis noted on upper GI testing results and no malnutrition. The most recent VA examination in May 2012 concluded that there are no current complaints or objective findings on examination which would support an ongoing diagnosis of gastritis. So, there is insufficient evidence to shows he warrants a higher 30 percent rating under DC 7307. The Veteran's diverticulitis, which was diagnosed by the April 2009 VA examiner, is to be evaluated under DC 7327, for diverticultis. DC 7327, in turn, references rating criteria for irritable colon syndrome (DC 7319), peritoneal adhesions (DC 7301), or colitis, ulcerative (DC 7323), depending upon the predominant disability picture. The Board observes there is no indication in record or contention by the Veteran that he has ever had ulcerative colitis or peritoneal adhesions, so there is no further need to consider DCs 7301 or 7323. However, since the Veteran has reported periodic diarrhea at the January 2005 VA examination, the Board considers whether a higher 30 percent rating is available under DC 7319, for irritable colon syndrome. Under DC 7319, a higher rating of 30 percent is available if the condition is: "severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress." Based on the overall evidence, though, the Board also finds no basis to award a higher 30 percent rating under DC 7319. For instance, the January 2005 examination report noted his complaints of periodic diarrhea, but did not comment on such symptoms upon physical evaluation. Upon physical evaluation, the April 2009 VA examiner found his diagnosed diverticulitis is quiescent, with subjective factors of abdominal pain, alternating diarrhea and constipation. However, the examiner did not objective assess the severity of these symptoms, and rather, remarked that, "It is unknown if the intestine causes significant anemia during flare-ups, no CBC lab results...[and] no findings of malnutrition." The May 2012 VA examiner recorded that he reported no diarrhea, alternating diarrhea and constipation, or other intestinal condition symptoms, and that he has no episodes of bowel disturbance with abdominal distress, or exacerbations or attacks of an intestinal condition. Thus, the preponderance of the evidence does not show a "severe" disability, such as is necessary for a higher 30 percent rating under DC 7319. The Board has also finds that the Veteran's disability picture does not warrant the assignment of more than the current Diagnostic Code, as the Veteran's symptoms associated with the service-connected disability are contemplated by DC 7346. In other words, the Veteran does not have various symptoms that would entitle him to separate ratings. Therefore, to reemphasize, the preponderance of the evidence is against a finding of more severe gastrointestinal disability, as discussed in analysis of the criteria for the several diagnoses considered above, thereby precluding a higher 30 percent rating under 38 C.F.R. § 4.114. Although he competently and credibly endorses several gastrointestinal disability symptoms (e.g., reflux, heartburn, dysphagia, regurgitation), nonetheless, the overall medical findings clearly show these symptoms, alone, without greater severity or further gastrointestinal symptoms and impairment, are simply insufficient to warrant a higher rating. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d 1331. The Board finds the medical findings more probative since made by clinicians with expertise in assessing the severity of gastrointestinal disabilities, based upon physical evaluation and diagnostic testing. In sum, the evidence of record does not demonstrate that the overall disability picture exhibited by the Veteran's gastrointestinal disability is more nearly approximated by a rating higher than 10 percent during the appeal period. 38 C.F.R. §§ 4.3, 4.7. The Board finds that the assignment of a rating greater than 10 percent is not warranted on a schedular basis, and staged ratings are not for application during this period. As the preponderance of the evidence is against the Veteran's claims for still higher ratings, the "benefit-of-the-doubt" rule is inapplicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3 B. Thoracolumbar and Cervical Spine Disabilities The Veteran has been assigned a 10 percent initial rating for his thoracolumbar spine disability, which he contends is more severe than has been rated. Similarly, he has had staged 10 and 20 percent ratings for his cervical spine disability, which he also contends are more severe than have been rated. At his Board hearing, he also testified these disabilities have progressively worsened since service connection was established. Both of his spinal disabilities have been analogously rated under 38 C.F.R. § 4.71a, DCs 5243 (intervertebral disc syndrome (IVDS) - 5242 (degenerative arthritis of the spine). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, pursuant to 38 C.F.R. §§ 4.40 and 4.45, if such factors are not contemplated in the relevant rating criteria. The diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). DC 5003 provides that degenerative or osteoarthritis, when substantiated by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate codes for the specific joint(s) involved. See 38 C.F.R. § 4.71a, DC 5003. Spine disabilities are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5235 to 5243. The General Rating Formula provides that disability evaluations are to be made 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. The normal range of motion for the thoracolumbar spine is from 0 to 90 degrees forward flexion, 0 to 30 degrees extension, 0 to 30 degrees left and right lateral flexion, and 0 to 30 degrees left and right lateral rotation. Normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal range of motion for the cervical spine is from 0 to 45 degrees forward flexion, 0 to 45 degrees extension, 0 to 45 degrees left and right lateral flexion, and 0 to 80 degrees left and right lateral rotation. Normal combined range of motion of the cervical spine is 340 degrees. General Rating Formula, Note (2); 38 C.F.R. § 4.71a , Plate V. Under the General Rating Formula, ratings for the spine are as follows: A higher 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A higher 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. DC 8520 provides for ratings of complete and incomplete paralysis of the sciatic nerve. Incomplete paralysis warrants 10, 20, 40, and 60 percent ratings if it is mild, moderate, moderately severe, and severe with marked muscular atrophy, respectively. 38 C.F.R. § 4.124a, DC 8520. Pursuant to DC 5243, IVDS is rated under either the General Rating Formula outlined above or the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months results in award of a 20 percent evaluation. A higher 40 percent rating is awarded for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Formula for Rating IVDS, Note (1). 1. Thoracolumbar Spine Disability The Board finds that the preponderance of the evidence is against a higher initial evaluation for the thoracolumbar spine disability, in excess of 10 percent under the General Rating Formula. For example, his several VA examination reports provide highly probative evidence against the claim for a rating higher than the current 10 percent rating. He complained of back pain to the January 2005 VA examiner, but on physical evaluation showed full forward flexion to 90 degrees, 30 degrees full extension, 30 degrees full bilateral lateral flexion, and 30 degrees full bilateral lateral rotation, and normal combined thoracolumbar range of motion. There was no indication of pain on motion, and no limitation of motion due to pain, including on repetitive motion testing. At his April 2009 VA examination, the Veteran was able to flex to 90 degrees, and pain began a 68 degrees. Extension was full at 30 degrees, and pain began at 28 degrees. Bilateral lateral flexion was to 30 degrees with pain beginning at 29 degrees. The Veteran had full bilateral rotation with no pain shown; and on repetitive motion testing, there was no additional limitation of motion due to pain, fatigue, weakness, endurance, incoordination. The May 2012 VA examiner found no objective pain on active motion, with flexion limited to 80 degrees, extension limited to 20 degrees, bilateral lateral flexion limited to 20 degrees, and full bilateral lateral rotation to 30 degrees; no additional limitation of motion on repetitive motion due to pain. Available VA and private treatment records include the Veteran's complaints of back pain, but overall, do not show any findings of range of motion or other findings that would warrant a rating higher than 10 percent. 38 C.F.R. § 4.71a , Diagnostic Codes 5235 to 5243. In this regard, the evidence of record does not show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined thoracolumbar spine range of motion not greater than 120 degrees, even with consideration of pain on motion, stiffness, tightness and other DeLuca factors, including fatigue, weakness, endurance, incoordination. Also, there was no contention by the Veteran or indication in any medical records of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. Moreover, the preponderance of the evidence is also against a higher rating under the Formula for Rating IVDS. The Veteran did not report IVDS or incapacitation episodes to the January 2005 VA examiner, and the examiner was silent on IVDS. The Veteran denied any incapacitation from his thoracolumbar disability to the April 2009 VA examiner, and the examiner specifically concluded that there is no IVDS. At the May 2012 VA examination, it was noted that the Veteran does have IVDS, but he also denied having any incapacitating episodes due to IVDS over the last one-year period. Therefore, he also has not met the criteria for a higher percent disability rating under the IVDS-specific criteria. The Board observes that the Veteran has complained of low to mid-back pain and stiffness to several VA examiners. While his descriptions of his symptomatology are both competent and credible, they are outweighed by the medical evidence noted. The medical findings are more probative since made by clinicians with expertise in assessing the severity of spinal disabilities, based upon physical evaluation and diagnostic testing. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d 1331. Importantly, it is clear he experiences some functional loss, such as some loss of motion due to his thoracolumbar pain, but such loss does not approximate the criteria contemplated by the assignment of a higher rating under §§ 4.40, 4.45 and 4.49. Therefore, since the Veteran's thoracolumbar spine disability has never been more than 10 percent disabling at any time since the effective date of service connection, the Board cannot "stage" this rating. Fenderson, 12 Vet. App at 125-26. As the preponderance of the evidence is against the Veteran's claim for an initial disability rating higher than 10 percent for his service-connected thoracolumbar spine disability, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). a. Radiculopathy of the Left Lower Extremity Resolving any doubt in the Veteran's favor, the Board finds sufficient evidence to warrant the award of a separate, 10 percent for mild radiculopathy for his left lower extremity, as associated with the service-connected thoracolumbar spine disability. Post-service, in June 2006, the Veteran complained at a private physician's orthopedic examination that he had low to mid back pain that radiated into the left leg, and was diagnosed with left leg radiculopathy, on MRI testing. The Veteran complained to the April 2009 VA examiner of constant pain in his mid-back, and the pain traveled to his legs, especially the right leg. However, the examiner made no objective comment on this allegation. Importantly, though, the May 2012 VA examiner found, on physical evaluation, that the Veteran has left-sided radiculopathy involving the L4/L5/S1/S2/S3 nerve roots (sciatic nerve), which the examiner characterized as mild in severity. The examiner diagnosed lumbar radiculopathy of the left lower extremity. Here, the evidence of record warrants a separate compensable rating of 10 percent for the Veteran's radiculopathy/sciatic neuropathy of the left lower extremity. See 38 C.F.R. § 4.124a, DC 8520; 38 C.F.R. §§ 4.2, 4.3, 4.6, 4.7. An evaluation in excess of 10 percent, however, is not warranted. The May 2012 VA examiner found that the left lower extremity radiculopathy was mild in degree. The preponderance of the evidence is against a finding that the left lower extremity radiculopathy warrants a higher rating. 2. Cervical Spine Disability a. October 1, 2004 to May 3, 2012 During this time period from October 1, 2004 to May 3, 2012, applying the above criteria to the facts of this case, the Board finds the preponderance of the evidence is against an evaluation higher than 10 percent for the Veteran's cervical spine disability. For example, VA examination reports provide highly probative evidence against the claim for a rating higher than the current 10 percent rating. At the January 2005 VA examination, the Veteran reported a medical history of general back pain, weakness, lack of endurance and fatigability, and stiffness to the January 2005 VA examiner, although he denied any related bowel or bladder complaints or erectile dysfunction. Nonetheless, on physical evaluation he showed cervical flexion limited to 40 degrees, full extension to 45 degrees, full bilateral lateral flexion to 45 degrees, and full bilateral lateral rotation to 80 degrees. However, on range-of-motion testing, the Veteran denied any pain or discomfort on motion, locking, lack of endurance, fatigability, giving way, such that the examiner specifically found that "there was no evidence of factors meeting DeLuca." At his April 2009 VA examination, he reported a medical history of constant, sharp, sticking, aching pain in the neck; stiffness; and numbness. On range-of-motion testing of the cervical spine by the April 2009 VA examiner, flexion was to 45 degrees with pain beginning at 30 degrees. Extension was to 45 degrees with pain beginning at 30 degrees. Right lateral flexion was to 45 degrees. Left lateral flexion was also to 45 degrees, but pain began at 31 degrees. Right rotation was to 80 degrees, as was left rotation, but with left rotation, pain began at 30 degrees. On repetitive motion testing, there was no additional limitation of motion due to pain, fatigue, weakness, endurance, incoordination. While pain was shown on flexion at 30 degrees, the Veteran was able to flex to 45 degrees. The general rating criteria for diseases and injuries of the spine specifically contemplate pain with movement, and thus the Board finds that the Veteran's flexion was to 45 degrees, even though such range included pain. A June 2006 private treatment evaluation by Dr. P.K. showed cervical spine range-of-motion testing was conducted, with "full" flexion, cervical extension limited only to 30 degrees, bilateral "side bending" (i.e., lateral flexion) to 30 degrees bilaterally, and bilateral rotation to 45 degrees bilaterally. Also, available VA treatment records include the Veteran's complaints of neck pain, but overall, do not show any findings of range of motion or other findings that would warrant a rating higher than 10 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The preponderance of the evidence does not show forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or combined cervical spine range of motion not greater than 170 degrees, even with consideration of pain on motion, stiffness, tightness and other DeLuca factors, including fatigue, weakness, endurance, incoordination. Also, there was no contention by the Veteran or indication in any medical records of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. 38 C.F.R. § 4.71a. Moreover, there is no contention or indication that he is entitled to a higher rating under the Formula for Rating IVDS. The Veteran did not report IVDS or incapacitation episodes to the January 2005 VA examiner, and the examiner was silent on IVDS. The Veteran denied any incapacitation from his cervical spine disability to the April 2009 VA examiner, and the examiner specifically concluded that there is no IVDS. Therefore, he also has not met the criteria for a higher percent disability rating under the IVDS-specific criteria. The Board observes that the Veteran has complained of neck pain and stiffness to VA examiners. While his descriptions of his symptomatology are both competent and credible, they are outweighed by the medical evidence noted. The medical findings are more probative since made by clinicians with expertise in assessing the severity of spinal disabilities, based upon physical evaluation and diagnostic testing. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d 1331. Importantly, it is clear he experiences some functional loss, such as some loss of motion due to his neck pain, but such loss does not approximate the criteria contemplated by the assignment of a higher rating under §§ 4.40, 4.45 and 4.49. For the time period from October 1, 2004 to May 3, 2012, since the Veteran's cervical spine disability has never been more than 10 percent disabling at any time since the effective date of service connection, the Board cannot "stage" this rating. Fenderson, 12 Vet. App at 125-26. As the preponderance of the evidence is against the Veteran's claim for an initial disability rating higher than 10 percent for his service-connected cervical spine disability, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49. 2. May 4, 2012 to Present During this time period from May 4, 2012 to the present, applying the above criteria to the facts of this case, the Board finds the preponderance of the evidence is against an evaluation higher than 20 percent for the Veteran's cervical spine disability. The range-of-motion findings on VA examination reports provide highly probative evidence against the claim for a rating higher than the current 20 percent rating. Since May 4, 2012, the preponderance of the evidence does not show forward flexion of the cervical spine is limited to 15 degrees or less, or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. For example, at the May 4, 2012 VA examination, the Veteran complained of a history of neck/cervical pain. The May 2012 VA examiner assessed the range of motion of his cervical spine, finding no objective pain on active motion, with cervical flexion limited to 30 degrees. On repetitive motion testing, the examiner did not find additional limitation of motion, with cervical flexion still limited to only 30 degrees. There are no other available VA treatment records that show any findings of range of motion or other findings that would warrant a rating higher than 20 percent. 38 C.F.R. § 4.71a , DCs 5235 to 5243. The Veteran's demonstrated limitation of cervical forward flexion to 30 degrees does not approach the necessary limitation to 15 degrees or less, to warrant a higher 30 percent rating. Indeed, there is simply no contention by the Veteran or indication of record that he has had any cervical ankylosis, let alone favorable ankylosis of the entire cervical spine, precluding another criterion for a higher 30 percent schedular rating. The Board observes that the Veteran has complained of sharp neck pain and stiffness to VA examiners. While his descriptions of his symptomatology are both competent and credible, they are outweighed by the medical evidence noted. The medical findings are more probative since made by clinicians with expertise in assessing the severity of spinal disabilities, based upon physical evaluation and diagnostic testing. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d 1331. Importantly, it is clear he experiences some functional loss, such as some loss of motion due to his neck pain from DJD, but such loss does not approximate the criteria contemplated by the assignment of a higher rating under §§ 4.40, 4.45 and 4.49. Moreover, the evidence does not support a higher rating under the Formula for Rating IVDS. At the May 2012 VA examination, it was noted that the Veteran does have IVDS, but he also denied having any incapacitating episodes due to IVDS over the last 12-month period. In the absence of any incapacitating episodes, he also has not met the criteria for a higher disability rating under the IVDS-specific criteria. There is no need to discuss a separate compensable rating for radiculopathy of the left upper extremities as due to his cervical spine disability, because the Veteran is already service connected for radiculopathy of the left upper extremity. Moreover, this present decision is denying a separate claim for service connection for a chronic right upper extremity disability, claimed as numbness and tingling of the right first and third digits; because this considered that the May 2012 VA examiner specifically found against objective evidence supporting a diagnosis of right upper extremity radiculopathy. Thus, radiculopathy due to the cervical spine is no longer for consideration by the Board. For the time period since May 4, 2012 to the present, since the Veteran's cervical spine disability has never been more than 20 percent disabling at any time since the effective date of service connection, the Board cannot "stage" this rating. Fenderson, 12 Vet. App at 125-26. During this time period, because the preponderance of the evidence is against the Veteran's claim for a rating higher than 20 percent for his service-connected cervical spine disability, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. 49. III. Extra-Schedular Consideration The Board has considered whether the Veteran's gastrointestinal, low back and cervical spine disabilities represent an exceptional or unusual disability picture as to render impractical the application of the schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. 38 C.F.R. § 3.321(b)(1) (2013); see Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In this case, the evidence does not indicate that Veteran's disability picture is not adequately contemplated by the applicable schedular rating criteria discussed above. The Veteran's primary gastrointestinal symptoms, of acid reflux and difficulty swallowing are recognized in the rating criteria for digestive disabilities. The Veteran's primary orthopedic symptoms, of arthritic pain and limitation of motion, are recognized in the rating criteria for spinal disabilities and the musculoskeletal system. The Board concludes that 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). Referral for extra-schedular consideration is not warranted. Moreover, during the pendency of the appeal, an unappealed August 2007 RO rating decision has already considered and denied the Veteran's claim for a total rating based on individual unemployability (TDIU), based upon his service-connected back problems. Thus, there is no need to consider his unemployability as due to service-connected spinal disabilities. See Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009); and Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER The claim for service connection for residuals of left ear infections is denied. The claim for service connection for numbness and tingling of the right first and third digits is denied. The claim for an initial rating higher than 10 percent for colonic diverticulosis, esophageal ulcer, gastritis, gastroesophageal reflux disease (GERD), and hiatal hernia is denied. The claim for an initial rating higher than 10 percent for the thoracolumbar spine disability is denied. A 10 percent rating for radiculopathy/sciatic neuropathy of the left lower extremity, associated with service-connected thoracolumbar spine disability, is granted, subject to the laws and regulations governing the payment of VA compensation. The claim for an initial rating higher than 10 percent for the cervical spine disability, from October 1, 2004 to May 3, 2012, and higher than 20 percent since May 4, 2012, is denied. ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs