Citation Nr: 1332014 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-35 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for cervical stenosis and spondylosis, status post bilateral decompressive laminectomy C4, C5, and C6 with multiple bilateral foraminotomies prior to January 16, 2013. 2. Entitlement to a disability evaluation in excess of 20 percent for cervical stenosis and spondylosis, status post bilateral decompressive laminectomy C4, C5, and C6 with multiple bilateral foraminotomies, effective January 16, 2013. 3. Entitlement to a disability evaluation in excess of 40 percent for right upper extremity radiculopathy. 4. Entitlement to a disability evaluation in excess of 30 percent for left upper extremity radiculopathy. 5. Entitlement to a compensable evaluation for posterior neck scar from cervical laminectomy. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from August 1956 to May 1959 and from July 1964 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona that denied a rating in excess of 10 percent for cervical spine stenosis, spondylosis, and surgical scar. In September 2008, the RO granted a 20 percent rating, effective January 1, 2006. In April 2012, the RO granted a temporary total rating for convalescence following cervical spine surgery from November 2, 2005 to December 31, 2005. Since this grant did not constitute a full grant of the benefits sought on appeal, the claim is still in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified at a video conference hearing in September 2012 before the undersigned. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In November 2012, the Board remanded the claim for further development. In June 2013, the AMC granted service connection for radiculopathy of the upper extremities and assigned a 40 percent rating for the right side and a 30 percent rating for the left side, effective in January 2013. The AMC also decided that separate service connection should be established for a scar although not a compensable degree. The Board finds that the evaluation of the radiculopathy to the upper extremities and the scar are part and parcel of the original appeal for a higher rating for the neck disability and consequently, within the Board's scope of appellate review. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that were not considered by the AMC in the most recent January 2013 supplemental statement of the case but are cumulative of evidence previously considered. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to and beginning January 16, 2013, the Veteran's cervical spine disability has been manifested by chronic severe pain and cervical flexed posture affecting his ability to perform the normal working movements of the neck with normal excursion, coordination, and endurance as well as flexion limited to 15 degrees. 2. Prior to January 16, 2013, it was factually ascertainable that the Veteran's right upper and left upper extremity radiculopathy more nearly approximated mild incomplete paralysis of the upper radicular group. 3. Beginning January 16, 2013, the Veteran's right upper and left upper extremity radiculopathy more nearly approximates severe incomplete paralysis of the upper radicular group. 4. At all times covered by this appeal, the Veteran's posterior neck surgical scar was 9.4 by 0.1 centimeters, well healed, and not painful, unstable, hyperpigmented, or adherent to the underlying tissue. CONCLUSIONS OF LAW 1. Prior to and beginning January 16, 2013, the criteria for a rating of 30 percent, but no higher, for cervical stenosis and spondylosis, status post bilateral decompressive laminectomy C4, C5, and C6 with multiple bilateral foraminotomies are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5238, 5240, 5241, 5242 (2013). 2. Prior to January 16, 2013, the criteria for a rating of 20 percent, but not higher, for right upper extremity radiculopathy are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2013). 3. Effective January 16, 2013, the criteria for a rating of 50 percent, but not higher, for right upper extremity radiculopathy are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2013). 4. Prior to January 16, 2013, the criteria for a rating of 20 percent, but not higher, for left upper extremity radiculopathy are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2013). 5. Effective January 16, 2013, the criteria for a rating of 40 percent, but not higher, for left upper extremity radiculopathy are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510 (2013). 6. The criteria for a compensable evaluation for posterior neck scar from cervical laminectomy are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7800 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). VA must notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he 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 notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. A notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the 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 August 2006, the RO provided notice that met the requirements. The notice explained that evidence was required to demonstrate that the disability had become more severe including its effect on employment. The notice provided a general description of the method for assigning a rating and effective date and explained the Veteran's and VA's respective responsibilities to obtain relevant evidence. The RO provided an additional notice in July 2008 with the detailed rating criteria for diseases of the cervical spine followed by an opportunity to respond and readjudication in a September 2008 statement of the case. Additionally, in September 2012, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2012 hearing, the undersigned noted the issues on appeal and solicited information regarding the Veteran's cervical spine, radiculopathy, and scar disabilities as well as the functional impact such as operating a motor vehicle. Therefore, 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. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion revealed the need for further development as directed in a November 2012 remand. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent lay and medical evidence associated with the claims file consists of service, VA and private treatment records and letters, statements by the Veteran, a fellow Army officer, and work supervisors, and the reports of August 2006, January 2010, April 2010, and January 2013 VA examinations. The Board concludes that the examinations are adequate because they included a review of the history, a physical examination, a review of relevant clinical testing, and appropriate diagnoses with findings applicable to the rating criteria. The Board considered the Veteran's objections to observations by a certain examiner that will be further discussed below. The additional development directed by the Board in a November 2012 remand was accomplished. The Board finds that no additional RO/AMC action to further develop the record in connection with this claim, prior to appellate consideration, is required. In summary, the notice and assistance duties have been considered and satisfied. Through various notices of the RO and Appeals Management Center (AMC), the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain relevant evidence, and the Veteran's and VA's respective responsibilities for obtaining relevant 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 this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran served as a U.S. Army communications technician and officer, retiring at the rank of Major. He served in the Republic of Vietnam and was awarded the Bronze Star Medal. He contended in several statements and reports to clinicians that he injured his neck and back while performing parachute tower training in 1966 and that his current disability is more severe than the assigned rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. Codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). A finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40. "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath, 1 Vet. App. at 592. Evaluating the disability under several diagnostic codes, the Board considers the level of impairment of the ability to engage in ordinary activities, including employment, and assesses the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Cervical spine stenosis and spondylosis are rated under the General Rating Formula for Diseases and Injuries of the Spine. 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 Formula provides for ratings as follows. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or a combined range of motion not greater than 170 degrees. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, for favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5238, 5240, 5241, 5242, Note (1). The normal range of motion of the cervical spine is flexion, extension, and lateral flexion from zero to 45 degrees, and right and left rotation from zero to 80 degrees. 38 C.F.R. § 4.71a, Plate V (2013). Intervertebral disc syndrome permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, as there is no lay or medical evidence of incapacitating episodes, these criteria do not apply. The Veteran's neurologic deficits of the upper extremities are currently rated under Diagnostic Code for neuropathy of the upper radicular group (fifth and sixth cervical). The Board concludes that this diagnostic code is most appropriate as the affected nerve was identified by a VA examiner in January 2013. For the dominant side, a 20 percent rating is warranted for mild symptoms, 40 for moderate symptoms, a 50 percent rating for severe symptoms, and a 70 percent rating for complete paralysis. For the non-dominant side, the ratings are 20, 30, 40, and 60 percent respectively. 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8610, 8710. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124a. As noted, in applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Rating criteria for scars or disfigurement of the face, head or neck were changed effective October 23, 2008. Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. However, only the former criteria can be applied for the period prior to the effective date of the new criteria, but both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114, 4.118; VAOPGCPREC 3-2000 (Apr. 10, 2000). However, in this case, the changed regulation requires that a veteran rated under the older criteria must specifically request a review to determine if the new criteria warrant a higher rating. As the Veteran's claim for an increased rating was received in December 2005 with no subsequent request for review, the Board will consider a rating under the older criteria. Prior to October 23, 2008, disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of 3 or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with 6 or more characteristics of disfigurement will be rated 80 percent. Such disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of 2 features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with 4 or 5 characteristics of disfigurement will be rated 50 percent. Such disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement will be rated 30 percent. Such disfigurement with one characteristic of disfigurement a 10 percent rating will be assigned. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2005). The 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: a. Scar 5 or more inches (13 or more cm.) in length. b. Scar at least one-quarter inch (0.6 cm.) wide at widest part. c. Surface contour of scar elevated or depressed on palpation. d. Scar adherent to underlying tissue. e. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). f. Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). g. Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). h. Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Unretouched color photographs must be considered when evaluating the disability under these criteria. 38 C.F.R. § 4.118, Diagnostic Code 7800, note 3. The Veteran and a fellow officer credibly reported to VA and to clinicians the date and circumstances of an injury of the neck during airborne ground training in 1966. Service treatment records including a retirement physical examination are silent for any symptoms, diagnoses, or treatment for the cervical spine. The Veteran subsequently completed fifteen years of active service as a communications officer including a tour of duty in Vietnam. A VA examination in February 1982 within one year of discharge from active service showed a normal range of motion, but X-rays showed discogenic disease at two cervical spine levels. The Veteran reported that he experienced numbness and weakness in the left elbow, forearm, and upper arm, but a clinical neurologic examination was normal. In March 1982, the RO granted service connection and a 10 percent rating for degenerative disc disease of the cervical spine, effective the day following military retirement. The RO received the Veteran's claim for an increased rating in December 2005. VA outpatient treatment records from July 2005 to May 2006 showed that the Veteran reported increased difficulty with neck motion and arm weakness with intermittent pain radiating to the elbows. A magnetic resonance image obtained in March 2005 showed multilevel degenerative changes with moderate to severe central canal stenosis and foraminal narrowing. In a lengthy report in July 2005, the attending VA neurologist noted the worsening symptoms and recommended surgery. The Veteran underwent a posterior cervical laminectomy in November 2005. In April 2006 and August 2006, the attending VA neurologist noted some improvement. A magnetic resonance image of the cervical spine obtained in April 2006 showed the expected changes from the laminectomy but no new abnormalities. However, the Veteran continued to experience sharp pain at the base of the neck and severe limitation of cervical motion in all directions but good return of power to the hands and no radicular symptoms. In letters in April 2006 and June 2006, the Veteran's federal civil service employers noted that the Veteran had experienced multiple health problems with the feet, knees, hips, spine, prostate, hypertension, and diabetes that interfered with attendance and performance at work. The Veteran retired from his position in June 2006. In July 2007, the RO granted a temporary total rating for convalescence from surgery, effective from the date of surgery in November 2005 to December 31, 2005 and a 10 percent rating effective January 1, 2006. In August 2006, a VA nurse practitioner (NP) accurately summarized the history and noted the Veteran's reports of continued neck pain, radiating to the left arm to the level of the elbow. The Veteran reported limitations in his ability to perform household chores and driving a motor vehicle beyond short local trips. The Veteran walked slowly with minimal head movement. On examination, range of motion was 35 degrees flexion, 10 degrees extension, 15 degrees bidirectional lateral flexion, and 50 and 30 degrees right and left rotation with pain on motion and radiating pain to the left arm on left head rotation. The combined range of motion was 155 degrees. The Veteran was unable to perform repeated rotation movements of the head because of pain. Sensation and strength of the upper extremities was normal but reflexes were reduced. VA outpatient records from 2006 to 2010 show ongoing physical therapy and pain management. Treatment was followed by the attending VA neurologist. Pain medications included opiods. The Veteran did participate in post-surgery rehabilitation and exercise programs including pool exercises. In July 2007 a private physical therapist noted the Veteran's reports of severe pain in the neck and both shoulders and a vague report of left arm numbness. Use of the arms provoked neck pain. Forward flexion was "complete," but extension was zero. Bidirectional lateral flexion was 5 to 10 degrees and rotation was 15 degrees to the right and 10 degrees to the left. The combined range of motion was 80 degrees. Records showed that the Veteran also underwent a surgical procedure on the lumbar spine and multiple procedures on the knees. In a March 2008 letter, the attending neurologist recommended service connection for the lumbar spine disorder and an increased rating of at least 50 percent for the combined impact of the cervical and lumbar spine disorders. In November 2009, a physical therapist noted the results of a January 2009 magnetic resonance image that showed no significant changes. The therapist noted that the Veteran used a cane because of knee disabilities but had a severe forward head and cervical flexed posture. In September 2008, the RO granted a 20 percent rating for the cervical spine, effective January 1, 2006. The combined disability rating for all service-connected disorders effective this date was 80 percent. In January 2010, a VA orthopedic surgeon noted the Veteran's description of the injury in service and his reports of continued severe and constant neck pain radiating to the arms for which he used pain and topical medication. The Veteran denied any incapacitating episodes in the past twelve months. The surgeon noted that the Veteran walked with his head bent over forward and that his walking endurance was limited to three to four minutes. Range of motion was 45 degrees flexion (but carried head thrust forward), zero degrees extension, 5 degrees bidirectional lateral flexion, and 50 and 30 degrees right and left rotation respectively with pain on motion but no additional functional loss on repetition. The combined range of motion was 135 degrees. Pain radiated to the left arm with no loss of sensation or muscle strength but with some reduction of reflexes. The Veteran's linear surgical scar on the posterior neck was a 9 by 0.1 centimeters and was smooth and non-tender with no ulceration or skin breakdown. In March 2010, a VA primary care physician noted that new magnetic resonance images of the neck and back suggested some motor function loss and referred the Veteran for a neurologic examination. In April 2010, a VA neurologist noted the Veterans' report of chronic neck pain but no radicular symptoms down the arms. The neurologist noted that a recent magnetic resonance image showed degenerative disc disease at multiple levels but no canal stenosis. One day later, a VA nurse practitioner (NP) noted a review of the claims file including the neurologist's notations and performed a compensation and pension examination for peripheral neuropathy. The Veteran denied radiating pain to the arms and tingling of the hands. There was no muscle atrophy, incoordination, or loss of strength, function, or sensation of the bilateral upper extremities. The NP noted that a physician reviewed the results of recent electrodiagnostic nerve testing and diagnosed carpal tunnel syndrome. The NP concluded that based on the electrodiagnostic testing, the Veteran did not experience cervical radiculopathy and that the paresthisas of the upper extremities reported by the Veteran was caused by carpal tunnel syndrome. In May 2010, another VA neurologist noted the results of electrodiagnostic testing with the same conclusions. In a September 2012 Board hearing, the Veteran stated that he experienced increasingly severe radiating pain to his shoulders and was limited to driving an automobile on local streets but not on the highway. His range of neck motion was reduced, his ability to reach was drastically reduced, and the neck and shoulder pain caused interrupted sleep. The Veteran also reported numbness of the fingers. In view of the Veteran's reports of worsening symptoms, in November 2012, the Board remanded the claim to obtain current VA treatment records and an additional examination. On January 16, 2013, a VA physician noted a review of the claims file and accurately summarized the Veteran's history during and after active service. The Veteran reported that he had experienced neck pain since the in-service injury and finger and hand numbness starting one year before his surgery in 2005. Bilateral arm symptoms had resolved for a time after surgery but had now returned. On examination, the physician noted that the Veteran held his head 20 degrees forward of the neutral position. Range of motion was 35 degrees flexion, zero degrees extension, 20 and 10 degrees right and left lateral flexion, and 10 and 30 degrees right and left rotation. Considering the forward 20 degree neutral position, the range of flexion was 15 degrees, and the combined range of motion was 85 degrees. The physician noted weakness and local tenderness but no pain on motion and no additional loss of function on repetition. There was no muscle atrophy or loss of sensation of the upper extremities but mild loss of strength and more significant reduction in reflexes of the biceps and triceps. The physician noted severe radiating pain and numbness and moderate paresthesias of the bilateral upper extremities involving the upper radicular group (C5-6 nerve roots). The Veteran did not have intervertebral disc syndrome or experience incapacitating episodes. The physician noted that the Veteran did not use an assistive device for ambulation. The physician concluded that there were objective manifestations of neurologic disability associated with the cervical spine disease. He concluded, "No regular work is feasible-some sedentary work can be performed. Activities of daily living (dress/feed) can be accomplished but at a much slower rate than normal." The physician also noted that the posterior neck scar was 9.4 by 0.1 centimeters and was well healed and not painful, unstable, hyperpigmented, or adherent to the underlying tissue. Color photographs have been associated with the claims file. The Veteran submitted two written lay statements in June 2013 after transfer of the file to the Board. The Veteran's representative waived consideration of the evidence by the RO. The Veteran and a fellow retired Army officer who accompanied the Veteran at the January 2013 hearing noted that the Veteran did appear for the examination using a cane. The Veteran also noted that he was not able to perform any form of work because of the effects of pain medication. Notwithstanding the objection to the physician's comment regarding the use of a cane that is inconsistent with all other recent VA records, the Board concludes that the 2013 examination was adequate because the physician reviewed the entire history, considered the Veteran's lay reports of his symptoms and limitations, and provided clinical comments addressing the elements of the rating criteria. In January 2013, the Appeals Management Center (AMC) entered into the Virtual VA electronic record a single posting of 110 pages of VA outpatient treatment and examination reports dated through January 2013. These records are available only in the electronic file. Although a June 2013 supplemental statement of the case indicated that VA outpatient records through January 2012 were considered, in view of the single posting of the records, the Board concludes that the entire electronic file was likely considered. Regardless, these outpatient records are cumulative in that they show a continuation of symptoms, medication for pain, and use of support devices for the combined effects of cervical and lumbar spine and lower extremity disabilities. As the Veteran was provided an adequate examination and current VA outpatient records were obtained and considered, the Board concludes that there has been substantial compliance with the instructions in the November 2012 Remand. The Board concludes that a higher rating of 30 percent for cervical stenosis and spondylosis, status post bilateral decompressive laminectomy C4, C5, and C6 with multiple bilateral foraminotomies is warranted for the entire appeal period beginning January 1, 2006. As noted above, a 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. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. In April 2006, the Veteran complained of sharp pain at the base of his neck and severe limitation of cervical motion in all directions. In August 2006, the Veteran was observed to walk slowly with minimal head movement where on examination, flexion was limited to 35 degrees but extension was limited to 10 degrees. The Veteran was unable to perform repeated rotation movements of the head because of pain. In July 2007, the Veteran complained of severe pain in the neck. In November 2009, it was observed that the Veteran had a "severe forward head and cervical flexed posture." In January 2010, the Veteran complained of continued severe and constant neck pain. He had range of motion to 45 degrees but was noted to carry his "head thrust forward." At the 2012 hearing , the Veteran complained of reduced range of neck motion, drastically reduced ability to reach, and interrupted sleep caused by neck pain. At the January 2013 VA examination, the Veteran had range of motion to 35 degrees on flexion but the examiner observed that the Veteran held his head 20 degrees forward in the neutral position. Thus, with the head starting at 20 degrees and moving only to 35 degrees, this demonstrated only a range of motion of 15 degrees. Pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). The Veteran's complaints of constant severe pain are credible. The Veteran does not have true ankylosis (see Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (defining ankylosis as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint)); however, on account of pain he has demonstrated disability almost similar to favorable ankylosis. As far back as 2006, the Veteran was observed to walk slowly with minimal head movement and beginning in 2009, he is specifically described as demonstrating a "severe forward head and cervical flexed posture" so the Veteran does not have the ability to perform the normal working movements of the neck with normal excursion, coordination, and endurance. The foregoing findings are best described as showing symptomatology that more nearly approximates the rating criteria for a 30 percent rating prior to January 16, 2013, and symptomatology that meets the rating criteria for a 30 percent rating beginning January 16, 2013 where flexion is limited to 15 degrees. Accordingly, the Veteran is entitled to a 30 percent rating for the entire appeal period beginning January 1, 2006. The Veteran has been granted service connection and 40 and 30 percent ratings for "upper extremity radiculopathy" effective in January 2013; however, the Board finds that it was factually ascertainable that the Veteran had radiculopathy to the upper extremities to a compensable degree prior to that date. VA treatment records dated in 2005 and 2006 showed the Veteran complained of arm weakness with intermittent pain radiating to his elbows. In August 2006, the Veteran complained of radiating pain to the left arm to the level of his elbow. Radiating pain to the left arm on left head rotation was demonstrated on examination. Sensation and strength in the upper extremities was normal but reflexes in both arms were noted to be reduced. In July 2007, the Veteran complained of severe pain in the shoulders with a "vague" report of left arm numbness. In January 2010, the Veteran continued to complain of pain that radiated to his arms. The examiner observed that on examination pain radiated to the left arm with no loss of sensation or muscle strength but with some reduction of reflexes. In April/May 2010, the Veteran's symptoms appeared to be attributed to carpal tunnel syndrome. Thereafter, at the Board hearing the Veteran complained of increasingly severe radiating pain to his shoulders which limited his driving ability and he also complained of numbness of the fingers. In January 2013, the VA examiner noted that the Veteran had severe radiating pain and numbness and moderate paresthesias of the bilateral upper extremities involving the upper radicular group (C5-6 nerve roots). He maintained that the Veteran had objective manifestations of neurologic disability. Thus, notwithstanding the finding of carpal tunnel syndrome in 2010, the Veteran had complaints of radiating pain that were confirmed on objective examination prior to 2010 and after 2010. The Board finds that evidence of radiating pain with some reduction in reflexes but with no true demonstrable loss of sensation and weakness is productive of mild incomplete paralysis of the upper radicular group. Accordingly, the Veteran is entitled to a 20 percent rating for right upper extremity radiculopathy, and a 20 percent rating for left upper extremity radiculopathy under Diagnostic Code 8510 beginning January 1, 2006 and prior to January 16, 2013. In addition, while the January 2013 VA examiner found that there was no muscle atrophy or loss of sensation of the upper extremities there was demonstrable mild loss of strength and a more significant reduction in reflexes of the biceps and triceps. Also, the examiner noted that the Veteran had severe radiating pain and numbness and moderate paresthesias of the bilateral upper extremities involving the upper radicular group (C5-6 nerve roots). The examiner also concluded as follows: "No regular work is feasible-some sedentary work can be performed. Activities of daily living (dress/feed) can be accomplished but at a much slower rate than normal." Thus, the Veteran's disability is objectively manifested by chronic severe pain, moderate sensory disturbances, and organic changes (reduction in strength and reflexes) that cause the Veteran to perform the activities of daily living slower. The Board finds that this level of disability more nearly approximates severe incomplete paralysis of the upper radicular group. Accordingly, the Veteran is entitled to a 50 percent rating for right upper extremity radiculopathy, and a 40 percent rating for left upper extremity radiculopathy under Diagnostic Code 8510 beginning January 16, 2013. The Board concludes that a separate compensable rating for the posterior neck scar is not warranted at any time during the period of the appeal because the scar does not impose functional limitations and does not meet any of the criteria of disfigurement. At all times covered by this appeal, the Veteran's posterior neck surgical scar was 9.4 by 0.1 centimeters, well healed, and not painful, unstable, hyperpigmented, or adherent to the underlying tissue. In so finding, the Board notes that the Veteran is competent to report on symptoms and credible. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the impairment associated with his disabilities based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, while the Veteran's lay complaints were considered by the Board and formed part of the basis for the Board's award of increased ratings, the Board ultimately placed greater evidentiary weight on the examination findings in regard to the actual type and degree of impairment associated with the Veteran's disabilities. For extra-schedular consideration, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability; if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no extra-schedular referral is required. 38 C.F.R. § 3.321(b)(1); Thun at 115. In the second step of an inquiry into whether a claimant is entitled to extra-schedular rating, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the regional office or the Board of Veterans Appeals must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the extra-schedular regulation as "governing norms." Id. When an analysis of the first two steps in an extra-schedular inquiry reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. 38 C.F.R. § 3.321(b)(1). Id. Here, the Veteran reported that he has difficulty driving an automobile on highways because of his range of neck motion inhibits the use of side mirrors but not because of arm and hand dysfunction. The degree of motion limitation is contemplated by the rating criteria. As noted above, the Veteran's lay complaints were considered by the Board and formed part of the basis for the Board's award of increased ratings. The Veteran's complaints of severe pain that radiates to the shoulders, limitation of motion, sensory disturbances, and weakness affecting his ability to drive and perform the activities of daily living with normal excursion, coordination, and endurance are contemplated in the assigned increased ratings. The Veteran has not described any unusual or exceptional features of his disabilities. Given all of the foregoing, the Board finds that the schedular evaluations in this case are not inadequate. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. Finally, the Board also recognizes that the Court of Appeals for Veterans Claims has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase (whether in an original claim or as part of a claim for increased rating). Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not contended that his neck, radiculopathy, and scar disabilities alone render him unemployable and the other evidence of record does not otherwise suggest that this is the case. Rather, the Veteran contends that the medications he takes for his disabilities in general render him unemployable. See, e.g., June 2013 statement. The Board accounts for this contention in the remand down below. For these reasons, the Board finds that a claim for TDIU has neither been raised by the Veteran nor by the record with respect to the specific issues decided herein. ORDER A higher rating of 30 percent for cervical stenosis and spondylosis, status post bilateral decompressive laminectomy C4, C5, and C6 with multiple bilateral foraminotomies effective prior to and beginning January 16, 2013 is granted, subject to the law and regulations governing the payment of monetary benefits. A higher rating of 20 percent for right upper extremity radiculopathy prior to January 16, 2013 is granted, subject to the law and regulations governing the payment of monetary benefits. A higher rating of 50 percent for right upper extremity radiculopathy beginning January 16, 2013 is granted, subject to the law and regulations governing the payment of monetary benefits. A higher rating of 20 percent for left upper extremity radiculopathy prior to January 16, 2013 is granted, subject to the law and regulations governing the payment of monetary benefits. A higher rating of 40 percent for left upper extremity radiculopathy beginning January 16, 2013 is granted, subject to the law and regulations governing the payment of monetary benefits. A compensable evaluation for posterior neck scar from cervical laminectomy is denied. REMAND As noted above, in direct response to the January 2013 VA examiner's finding that the Veteran would be able to perform some sedentary work, the Veteran essentially contended that the medications he takes for his service connected disabilities in general would not enable him to perform sedentary work. See June 2013 statement. After implementation of the Board's grant of increased ratings, the AMC/RO should consider in the first instance whether the Veteran is entitled to a TDIU at any time during the appeal period beginning January 1, 2006. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran with VCAA notice on the issue of entitlement to TDIU. 2. Conduct any development necessary and consider in the first instance whether the Veteran is entitled to a TDIU at any time during the appeal period beginning January 1, 2006. 3. Thereafter, adjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. The Veteran and his representative should be given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs