Citation Nr: 1331312 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 06-03 507A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability evaluation in excess of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis. 2. Entitlement to a disability evaluation in excess of 30 percent for service connected right (dominant) upper extremity radiculopathy. 3. Entitlement to a disability evaluation in excess of 20 percent for service connected left upper extremity radiculopathy. 4. Entitlement to service connection for carpal tunnel syndrome of the right wrist. 5. Entitlement to an extra-schedular rating for diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD K. Kordich, Senior Counsel INTRODUCTION The Veteran served on active duty from January 1969 to October 1970 and received numerous awards for his service, including the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Infantryman's Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2007, June 2008, and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2011, the Board remanded the matter so that the Veteran could be afforded a Travel Board hearing at the RO. The hearing took place in August 2012 before the undersigned and a transcript of the hearing is of record. In a January 2013 decision, the Board granted a 30 percent disability evaluation for the Veteran's service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy for the period prior to April 22, 2008. The Board remanded the issues of entitlement to an evaluation in excess of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis and radiculopathy for the entire period involved in the current appeal and entitlement to service connection for carpal tunnel syndrome of the right wrist. In addition, in its remand the Board referred the cervical spine issue to the Chief Benefits Director of VA's Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321. The Board notes that the January 2013 Board decision granted the 30 percent disability evaluation for the Veteran's degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis back to the date of claim, December 29, 2006, as also reflected in a January 2013 rating decision by the RO implementing the Board's decision. In a May 2013 Supplemental Statement of the Case (SSOC) the RO separated the radiculopathy issues from the cervical spine disability and granted service connection for right (dominant) upper extremity radiculopathy, assigning a 30 percent disability rating, and granting service connection for left upper extremity radiculopathy, assigning a 20 percent disability rating. Both ratings were effective December 29, 2006. The Veteran continued to reference his upper extremities following the May 2013 Supplemental Statement of the Case, and thus the Board finds that the initial ratings assigned those disorders are before the Board for appellate review. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal The issue of entitlement to an extra-schedular rating for diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis 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 cervical spine disability is shown to be productive of forward flexion of less than 15 degrees, but without unfavorable ankylosis or incapacitating episodes having a total duration of at least one week during the past 12 months. 2. The right (dominant) upper extremity radiculopathy is manifested by moderate incomplete paralysis of the musculospiral nerve. 3. The left upper extremity radiculopathy is manifested by moderate incomplete paralysis of the musculospiral nerve. 4. Carpal tunnel syndrome of the right wrist did not originate in service or until years thereafter, and carpal tunnel syndrome is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.22, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013). 2. The criteria for a disability rating in excess of 30 percent for right (dominant) upper extremity cervical radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.124a, Diagnostic Code 8514 (2013). 3. The criteria for a disability rating in excess of 20 percent for left upper extremity cervical radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.124a, Diagnostic Code 8514 (2013). 4. Right wrist carpal tunnel syndrome was not incurred in active service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1154, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirement applies to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Florez v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in May and September 2008 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for entitlement to service connection for carpal tunnel syndrome and an increased rating for diffuse degenerative arthritis and degenerative disc disease with spinal stenosis and radiculopathy of the cervical spine, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. These letters also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The June and October 2008 rating decisions reflect the initial adjudication of the pertinent claims after issuance of the letters. Hence, the May and September 2008 letters, which meet the content of notice requirements described in Dingess/Hartman and Pelegrini, also meet the VCAA's timing of notice requirement. The Board notes that, as to the radiculopathy issues, they originated in connection with the underlying increased rating claim for the cervical spine disability. As proper VCAA notice was provided for the cervical spine issue, the Veteran is not entitled to additional notice for the "downstream" award of separate evaluations for the upper extremities. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of VA treatment records and the reports of May 2007, April 2008, and March 2013 examinations. The Board has reviewed the reports of those examinations, and finds that they are adequate. Also of record and considered in connection with the appeal is the transcript of the Veteran's August 2012 Board hearing. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices from the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims herein decided. The Board has reviewed all the evidence in the Veteran's claims file. 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 Veteran 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). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2013). Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. Background The Veteran filed the increased rating claim currently on appeal in December 2006. At that time, his service connected cervical spine disability was assigned a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. VA outpatient treatment records for the period on appeal note complaints of and treatment for pain associated with the Veteran's cervical spine disorder. A VA physical therapy treatment record from August 2006 records the Veteran's forward flexion of the cervical spine as to 20 degrees. In May 2007, the Veteran was afforded a VA examination in connection with his claim. The Veteran complained of pain, stiffness, and weakness associated with his cervical spine disability. He reported that he had missed forty-eight days of work due to his condition. The Veteran had forward flexion to 22 degrees, with pain at the end point. His range of motion was not additionally limited following three repetitions. He had no ankylosis or incapacitating episodes due to intervertebral disc syndrome. The Veteran had decreased sensation in the upper extremities. In April 2008, the Veteran was afforded another VA examination of his spine. He complained that his neck pain was worsening and that he had difficulty turning his head over his shoulder while driving. He described numbness and tingling in the right index finger and weakness in both hands. He was generally able to perform activities of daily living, but reported difficulty with tasks requiring fine motor skills, such as buttoning shirts and tying shoes. He reported losing approximately fifty days of work in the past twelve months, approximately $14,000 worth of business. Forward flexion of the cervical spine was to 10 degrees, with pain throughout the entire range of motion. No additional limitation was observed following repetition. The Veteran had no ankylosis or incapacitating episodes due to intervertebral disc syndrome. The Veteran had some decreased sensation in both upper extremities. The examiner noted that March 2008 electrodiagnostic testing results showed evidence of right carpal tunnel syndrome and that x-ray and MRI results showed degenerative disc disease of the cervical spine with moderately severe central stenosis at the C6-7 level, left sided C7-T1 foraminal narrowing, and slowing bone density over the ventral aspect of the cervical spine possibly representing diffuse idiopathic skeletal hyperostosis. At his December 2010 VA examination, the Veteran reported pain without radiation and denied incapacitating episodes. He was able to perform activities of daily living although he had difficulty with head and neck movement when operating his vehicle to see behind. The examination showed normal position of the head, normal curvature of the spine, and normal symmetry in appearance. Forward flexion was to 30 degrees with a combined range of motion of 235 degrees. There was no objective evidence of pain at rest but there was objective evidence of pain with motion although without spasm or weakness. There was no evidence of atrophy or neural impairment of either upper extremity. There were no postural abnormalities, no ankylosis and no additional limitations with repetition that were related to pain, fatigue, incoordination, weakness, or lack of endurance. The examiner diagnosed degenerative joint disease of the cervical spine with severe central stenosis at C6-C7 without radiculopathy. At his August 2012 Travel Board hearing, the Veteran testified that when he got up from out of his chair or got up in the morning, he could not just take off walking, but instead and had to stand and wait for the feeling to come before he could walk. He stated that when he was at an intersection or a cross street he needs to turn his entire body to make sure nothing is coming from either direction because motion in his neck is limited. The Veteran reported pain and the ability to only sleep six hours at night. The Veteran testified that he owned a pest control business and was currently working and occasionally missed work due to his back. The Veteran testified that he experienced numbness in his hands. He noted that, being right-handed, the pain was more in his right hand as he used it more. At a March 2013 VA examination, the Veteran reported that he had no movement in the neck and that the pain was constant; he explained that Tramadol only provided short relief. The examination showed limited flexion to 15 degrees, extension to 10 degrees, lateral flexion to 10 degrees toward ether side, and bilateral rotation to 20 degrees. There was objective evidence of painful motion and repetition did not provide additional functional limitation. The examiner found no evidence of localized tenderness, guarding, or muscle spasms severe enough to result in abnormal gait or spinal contour. The examiner noted that the Veteran used a cane for assistance in ambulation. The examiner indicated that the Veteran experienced incapacitating episodes of less than one week during the past 12 months. Clinical findings showed muscle strength was 4/5 in both upper extremities, but muscle atrophy was not present. The Veteran's reflexes were hypoactive. Sensory perception was decreased. The examiner noted that the Veteran's symptoms included moderate constant pain, paresthesias/dysesthesias, and included numbness, and that the severity of radiculopathy in the right and left upper extremities were moderate. The record shows the Veteran also attended a March 2013 VA examination in connection with his right carpal tunnel syndrome claim. Pertinent clinical findings included weakness, incoordination, swelling, and deformity in the right hand. The examiner diagnosed right wrist carpal tunnel syndrome. Laws and Regulations The Veteran's cervical spine disability is rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a (2013). Under the General Formula, diseases and injuries to the spine are to be evaluated under Diagnostic Codes 5235 to 5243 as follows (unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes): 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; Unfavorable ankylosis of the entire spine ............................................................. 100 Unfavorable ankylosis of the entire thoracolumbar spine ...................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ................................................................................................ 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine ........................................................................................... 30 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 ...................................... 20 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate Diagnostic Code. Note (2): (See also Plate V.) 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 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. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months ........................................................................................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ............................................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ............................................................. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ............................................................. 10 Note (1): For purposes of evaluations under 5243, 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2013). Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology, and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, painful movement, swelling, deformity, or disuse atrophy. 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). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Peripheral neuropathy which is wholly sensory is mild or, at most, moderate. With dull and intermittent pain in a typical nerve distribution, it is at most moderate. With no organic changes it is moderate or, if of the sciatic nerve, moderately severe. With loss of reflexes, muscle atrophy, sensory disturbance, and constant pain that at times is excruciating, it is at most severe. Peripheral nerves ratings are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. §§ 4.123, 4.124, 4.124a. In rating peripheral neuropathy attention is given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Cranial or peripheral neuralgia is characterized usually by a dull and intermittent pain in the typical nerve distribution, is given a maximum rating of moderate incomplete paralysis. 38 C.F.R. § 4.124. The maximum rating for peripheral neuropathy not characterized by organic changes is for moderate or, with sciatic nerve involvement, moderately-severe, incomplete paralysis. 38 C.F.R. § 4.123. 38 C.F.R. § 4.123 provides that cranial or peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is given a maximum rating of severe incomplete paralysis. A Note to 38 C.F.R. § 4.124a, provides that as to peripheral neuropathy the term ''incomplete paralysis'' indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis of each nerve. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. 38 C.F.R. § 4.69. A 20 percent evaluation is warranted for moderate incomplete paralysis of the musculospiral (radial), median or ulnar nerve if affecting the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8514. A 30 percent evaluation is warranted for moderate incomplete paralysis of the musculospiral (radial), median or ulnar nerve if affecting the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8514. Severe incomplete paralysis of the upper radicular group, middle radicular group, lower radicular group, radial or the median nerve warrants a 40 percent rating if affecting the minor upper extremity, and 50 percent if affecting the major upper extremity. Sixty (60) percent is warranted for complete paralysis of the minor upper extremity and 70 percent for complete paralysis of the major upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8514. When, after considering all information and lay and medical evidence of record, there is an approximate balance of positive and negative evidence as to any material issue, VA shall give the claimant the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.7. Analysis Cervical Spine Disability with Stenosis In the present case, it is more advantageous to the Veteran to rate his condition based on the General Rating Formula for Diseases and Injuries of the Spine rather than the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. This is because under the former, he is rated 30 percent disabled for the cervical spine disorder, 30 percent disabled for the right upper extremity radiculopathy, and 20 percent disabled for the left upper extremity radiculopathy. The Board notes that the Veteran can not receive the separate ratings were he to be rated based on incapacitating episodes. The Board has reviewed the pertinent evidence of record throughout the appeal period with respect to range of motion. The Veteran clearly has cervical spine flexion limited to less than 15 degrees. Equally as clearly, however, he retains motion in the cervical spine and the cervical spine is not ankylosed. Nor does the Veteran's cervical spine disability result in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the coastal margin on the abdomen or other conditions listed in Note (5) of the General Rating Formula for Diseases and Injuries of the Spine. In other words,the cervical spine is not ankylosed, and is not productive of impairment otherwise associated with unfavorable ankylosis. VA examinations reflect some extent of range of motion on testing. A March 2013 VA examination showed limited flexion to 15 degrees, extension to 10 degrees, lateral flexion to 10 degrees toward either side, and bilateral rotation to 20 degrees. There was objective evidence of painful motion; however, repetition did not provide additional function limitation. Although these findings reflect limitation of motion they are not productive of ankylosis of the entire cervical spine. Furthermore, the evidence does not show that the symptoms are productive of unfavorable ankylosis of the entire cervical spine so as to warrant assigning the disability a 40 percent disability rating, even after consideration of pain, weakness and other symptoms described in DeLuca. See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Further, the evidence does not demonstrate incapacitating episodes of intervertebral disc syndrome having a total duration of even 2 weeks during the past 12 months. For example, at his March 2013 VA examination the examiner noted incapacitating episodes of less than one week during the past 12 months. Consequently, the Veteran has not demonstrated that he experienced incapacitating episodes sufficient to warrant evan a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note 1, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. In the absence of cervical spine ankylosis, the preponderance of the evidence is against the grant of a schedular disability rating for diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis, in excess of 30 percent. There is no doubt to be resolved, and a higher rating is not warranted at any time during the period involved in this appeal. Analysis Right (dominant) and Left Upper Radiculopathies The Veteran is right handed. The RO has granted separate disability ratings for each of the upper extremities, as manifestation of the service-connected cervical spine disability, by a rating action dated in May 2013 effective December 2006. The respective disabilities are rated under the criteria set forth in Diagnostic Code 8514, paralysis of the musculospiral (radial) nerve. With respect to each upper extremity, the evidence does not show symptoms which would support a disability rating higher than 20 percent for the left upper extremity or higher than 30 percent for the right (dominant) upper extremity. The evidence does not show that the Veteran's bilateral radiculopathy manifests symptoms productive of severe incomplete paralysis of the radial nerve. The March 2013 VA examination showed muscle strength was diminished at 4/5 in both upper extremities. Notably, muscle atrophy was not present and reflexes were hypoactive but not absent. Sensory perception was decreased and the examiner determined that the Veteran had radiculopathy, with symptoms including moderate constant pain, paresthesias/dysesthesias, and numbness. The examiner noted that the severity of the radiculopathy in the upper extremities was moderate. The Board notes that a separate March 2013 VA examination noted weakness, incoordination, swelling, and deformity in the right hand associated with carpal tunnel syndrome. Service connection is not in effect for that disorder. In any event, the symptoms did not evidence more than moderate incomplete paralysis of the median nerve. In an April 2008 VA examination, the Veteran described numbness and tingling in the right index finger and weakness in both hands. He was generally able to perform activities of daily living, but reported difficulty with tasks requiring fine motor skills, such as buttoning shirts and tying shoes. The Board finds that the Veteran's reported symptoms and his clinical presentation reflected in the examination reports are most accurately described as representing no more than moderate incomplete paralysis, consistent with the examiner's own assessment of the severity. The Board has also considered the application of other diagnostic criteria to determine whether increased ratings are warranted, but finds none support a higher rating given the symptoms of record. As there is no evidence of, or disability comparable to, severe incomplete paralysis of the upper, middle, or all radicular groups, severe incomplete paralysis of the radial, median, or ulnar nerve, or complete paralysis of the circumflex nerve, there is no basis for evaluating the Veteran's disability under Diagnostic Codes 8510, 8511, 8513, 8515, 8516, or 8518, respectively. In reaching the above conclusions, the Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59 as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain. In this case, the Veteran has complained of tingling, numbness, decreased grip, and decreased sensation. The Board finds that the 20 and 30 percent ratings, respectively, assigned adequately compensates the Veteran for the level of impairment caused by his radiculopathies. The Board has also considered the Veteran's statements and sworn testimony that he is entitled to a higher rating due to numbness, decreased grip, and problems performing daily activities with his hands/fingers. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, his upper neuropathy pathologies are not the type of disorder that a lay person can provide competent evidence as to the degree of severity for VA purposes. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant higher ratings; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, are more probative than the Veteran's assessment of the severity of his disabilities. The medical findings do not support higher schedular ratings than those assigned herein. Thus, the evidence as a whole does not demonstrate radiculopathy of the left and right upper extremities that more nearly approximates severe incomplete paralysis of the radial nerve or complete paralysis. See 38 C.F.R. § 4.124a. Moreover, at no point during this appeal has the evidence supported a higher rating for either the left or right upper extremities. Extraschedular Consideration The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the schedular evaluation is adequate. The rating criteria for evaluating peripheral nerve disorders are stated in terms of severity, rather than in terms of specific symptoms. Although the criteria for complete paralysis of any particular nerve gives examples of pertinent symptoms, those examples do not form a set of criteria for the lesser ratings, but rather show the functions which are typically affected by the nerve. Consequently, the Veteran's complaints are contemplated by the rating criteria. Since the available schedular evaluation adequately contemplates the level of disability and symptomatology, further inquiry under Thun becomes moot. Service Connection Carpal Tunnel Syndrome, Right Wrist Background The Veteran's service treatment records contain no mention of complaints or treatment for right wrist carpal tunnel syndrome. The Veteran's October 1970 separation examination shows normal clinical evaluation of the hands. EMG and NCV studies during a March 2008 VA nerve conduction study were abnormal. There was electrodiagnostic evidence of a mild sensorimotor demyelinating neuropathy consistent with carpal tunnel syndrome on right side. At his August 2012 Travel Board hearing, the Veteran testified that he was diagnosed with right wrist carpal tunnel syndrome at least 8 to 10 years ago. The Veteran stated the carpal tunnel was a gradual thing and just got worse until the point where he would drop objects. The Veteran testified that he was wounded in service in the back of the right arm, and that the nerves were taken out. He testified that he believed they cut the back muscle in the arm to get the shrapnel out and they put it back together, but it had never been the same. The Veteran indicated that he first sought treatment approximately 15 years after separation from service. In January 2013, the Board remanded the issue of service connection for carpal tunnel syndrome in light of an inadequate December 2010 VA examination. The December 2010 examiner concluded that the Veteran did not suffer from carpal tunnel syndrome of the right wrist based on July 1998 and January 2004 nerve conduction studies of the right upper extremity; he was apparently unaware of the March 2008 nerve conduction study. The Board remanded for a new VA examination. At a March 2013 VA examination, the Veteran reported carpal tunnel syndrome of the right hand that began in 2006 or before. The Veteran reported that all his fingers and the thumb in the right hand became numb and tingled. The examination showed weakness, incoordination, swelling, and deformity in the right hand. There was weakness and painful limited motion of the right wrist. The diagnosis was carpal tunnel syndrome of the right wrist. The examiner opined that it was less likely as not that the Veteran's right wrist carpal tunnel syndrome was incurred in or caused by the claimed inservice injury, event, or illness. Law and Regulations Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternate method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) (2013) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson in reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ([T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). For certain chronic disorders, including organic diseases of the nervous system, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996); VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the Veteran is service connected for right and left upper extremity radiculopathy secondary to his service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis. At his August 2012 Travel Board hearing, the Veteran testified that he believed his carpal tunnel syndrome of the right wrist was secondary to the treatment for his right arm shrapnel wound in service. The Board points out, however, that the Veteran is not claiming that the shrapnel wound, after service, caused or aggravated his carpal tunnel syndrome. Rather, he is contending that the surgery in service resulted in his carpal tunnel syndrome. Consequently, this case does not involve consideration of 38 C.F.R. § 3.310. Instead, it involves an allegation that the carpal tunnel syndrome arose from an event in service. In this case, the Veteran sustained a right arm injury during service in combat. Although the service records do not reference carpal tunnel syndrome, the Board must presume that the fragment injury in service resulted in some form of disability. See Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012) (In the case of a combat veteran, not only is the combat injury presumed, but so too is the disability due to the in-service combat injury). Even if there was median nerve damage in service, however, the evidence indicates that this condition was first diagnosed in 2008, more than 38 years after service. The Board points out that the presumption afforded by 38 U.S.C.A. § 1154(b) does not remove the requirement that the evidence show a link between the service disability and the current disability. There is no medical opinion linking the Veteran's carpal tunnel syndrome of the right wrist to active duty service. In March 2013, the VA examiner opined that the Veteran's right wrist carpal tunnel syndrome was less likely than not incurred in or caused by the claimed in service injury, event, or illness. Significantly, neither the Veteran nor his representative have submitted or identified any medical opinion that actually supports his claim. In short, the only medical opinion addressing the etiology of the right wrist disorder is against the claim. The Board acknowledges that the Veteran is competent to report current right wrist symptomatology, including pain. The Board has considered the arguments advanced by the Veteran that his right wrist carpal tunnel syndrome is a result of his right arm shrapnel wound in service. However, the resolution of issues that require medical knowledge requires medical evidence. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, determining whether the right wrist carpal tunnel syndrome is related to a right arm wound sustained in service clearly requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible to lay opinions as to etiology. In this regard, the Board notes that the Veteran's right wrist symptoms have not been associated with an underlying pathology that is observable to a layperson's senses. In any event, even if the Veteran were competent to address the etiology of his disability, the probative value of his opinion is outweighed by that of the VA examiner, who clearly has education, training, and experience superior to that of the Veteran in determining the etiology of disorders. The Board notes that the alternative means of establishing service connection through 38 C.F.R. § 3.303(b) is not available to the Veteran. As already noted, the Veteran does not contend he was actually found to have carpal tunnel syndrome in service, and carpal tunnel syndrome was not otherwise diagnosed. Thus, there must be a competent opinion addressing etiology. Consequently, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for carpal tunnel syndrome of the right wrist. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable and the Veteran's claim must be denied. ORDER Entitlement to a disability rating in excess of 30 percent for service connected diffuse degenerative arthritis and degenerative disc disease of the cervical spine with spinal stenosis is denied. Entitlement to a disability rating in excess of 30 percent for service connected right (dominant) upper extremity radiculopathy is denied. Entitlement to a disability rating in excess of 20 percent for service connected left upper extremity radiculopathy is denied. Entitlement to service connection for carpal tunnel syndrome of the right wrist is denied. REMAND When this matter was last before the Board in January 2013, the Veteran's service connected cervical spine disability was remanded for additional development, to include referral for the issuance of an opinion by the Director of Compensation and Pension Service under 38 C.F.R. § 3.321. The RO issued a Supplemental Statement of the Case in May 2013 in which it was noted: "Please note, as mandated by the Board, your claim will be forwarded to the Director, Compensation Service for extra-schedular condition under 38 C.F.R. § 3.321." There is no response from the Director of Compensation and Pension Service within the claims file or in the Virtual VA system. Accordingly, the case is REMANDED for the following action: Place a copy of the decision by the Director, Compensation and Pension Service as to whether extra-schedular consideration of the cervical spine disability is warranted in the claims file or the Virtual VA system. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs