Citation Nr: 1333657 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-16 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for degenerative arthritis of the thoracic spine. 2. Entitlement to an initial rating higher than 10 percent for chronic myositis of the cervical spine, prior to March 7, 2011, and rating higher than 20 percent since. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active service from August 1973 to July 1979. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran now resides in Georgia, so the matter is now handled by the RO in Atlanta, Georgia. In January 2011, the Board remanded these claims for additional development. The Board notes this appeal originally included entitlement to a total disability rating based on individual unemployability (TDIU); however, this issue was granted in a May 2008 rating decision, and as such, is no longer on appeal. In an August 2012 rating decision, the RO granted an increased evaluation of 20 percent for chronic myositis of the cervical spine, effective March 7, 2011. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 20 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). In June 2013, the Board again remanded this claim for additional development and consideration. The requested actions have been completed and the claim is once again before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. For the reasons explained below, the claim of entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the thoracic spine is again REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. Prior to March 7, 2011, the Veteran's cervical spine disability has been characterized by pain on motion, with limitation of flexion to 45 degrees, and a combined range of motion of 240 degrees. 2. Since March 7, 2011, the Veteran's cervical spine disability has been characterized by pain on motion, with limitation of flexion to 30 degrees, and a combined range of motion of 190 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for chronic myositis of the cervical spine prior to March 7, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5242 (2013). 2. The criteria for an initial rating in excess of 20 percent for chronic myositis of the cervical spine since March 7, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist under the Veterans Claims Assistance Act of 2000 (VCAA) Proper notice under the VCAA includes informing the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters sent in January and March 2006, and August 2007 advised the Veteran of the evidence and information necessary to substantiate his increased rating claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the March 2006 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran's service treatment records and VA and private treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with VA examinations in April 2006, March 2011, and July 2013 with respect to this claim. The Board finds that the report of the July 2013 VA examination is adequate for evaluation purposes because the examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, the Veteran has not alleged, nor does the record show, that his service-connected cervical spine disability has worsened in severity since the most recent examination. As such, a new examination is not necessary. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Moreover, in obtaining the July 2013 VA compensation examination and relevant treatment records, the Board is satisfied that there has been compliance with its June 2013 remand directives concerning this claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Board may proceed to the merits of his claim. II. Increased Rating Claim Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59 cited above are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has held that claims for higher disability ratings should emphasize the analysis of the evidence differently depending on whether or not service connection was previously in effect for the subject disability appealed. If the Veteran appeals a rating decision seeking an increased rating for an already service-connected disability, as is the case here, then the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). More recently, however, the Court has held that even in a claim for an increase in the level of an already service-connected disability, 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 (2007). Thus in deciding the claim below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). The Veteran's statements describing the symptoms of his service-connected disability is deemed competent evidence. 38 C.F.R. § 3.159(a)(2) (2013). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. The RO has evaluated the appealed cervical spine disability rating under rating criteria for evaluating the musculoskeletal system. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. Under the criteria that is in effect from September 26, 2003, disabilities of the spine will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2013). The General Rating Formula provides for a single set of criteria for rating conditions of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The designated code for vertebral fracture disability is Diagnostic Code 5235. The Veteran's service-connected chronic myositis of the cervical spine with minimal degenerative changes is currently rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), no matter which spine-related diagnostic code applies. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Note (6) of the General Rating Formula provides that service-connected disability of the thoracolumbar and cervical spine segments are to be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2013). Under the General Rating Formula, spine disabilities 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, are evaluated according to the criteria below. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. Note first that if the criteria for a compensable rating under a diagnostic code are not met, then a noncompensable rating is awarded. See 38 C.F.R. § 4.31 (2013). A 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; 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. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for 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. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. In addition to Note (6) discussed above, the notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 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 thoracolumbar spine is 240 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. (See also 38 C.F.R. § 4.71a, Plate V). Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which 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 (0 degrees) always represents favorable ankylosis. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 (Intervertebral Disc Syndrome), an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2013). If intervertebral disc syndrome is presented 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, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). There are no separate disability ratings in effect for any associated neurologic impairment related to the cervical spine disability. But consideration of associated objective neurologic abnormalities is inherent in the evaluation of the spine rating claims on appeal. See Note (1) following 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine. Therefore, as part of the current appeal, the Board has considered the presence and extent of any separate objective neurologic abnormalities associated with the service-connected cervical spine disabilities. The Board has reviewed the pertinent competent evidence of record throughout the appeal period. It should first be noted that there is no medical evidence on file, or claim by the Veteran, of any significant level of incapacitating episodes so as to warrant an evaluation for intervertebral disc syndrome based on incapacitating episodes. The Veteran does not claim, and the evidence on file does not show that for any part of the appeal there is any significant extent of incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome involving the cervical spine that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2013). In this regard, at the April 2006 VA examination, the Veteran reported incapacitating episodes in May 2005, however, there is no indication in either the private or VA treatment records that he was placed on doctor-prescribed bed rest. The March 2011 and July 2013 VA examiners also specifically determined the Veteran did not have any periods of incapacitation within the past 12 months. His VA and private treatment records for the entire appeals period are also silent regarding any evidence of incapacitating episodes. Thus, an evaluation in excess of the existing ratings in effect for the cervical spine disability is not warranted at any time during the appeal period on the basis of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. It should also be noted that there is no medical evidence, or claim by the Veteran, that there is unfavorable ankylosis of the cervical spine. Period Prior to March 7, 2011 The Veteran seeks a disability rating higher than 10 percent for the cervical spine disability prior to March 7, 2011. The Board has reviewed the pertinent competent evidence of record for the period prior to March 7, 2011, including VA and private treatment records, and the report of the April 2006 VA examination. These records illustrate his continued complaints of pain and stiffness associated with this disability. The Veteran's pain and discomfort as a result of his cervical spine disability was specifically reiterated in an October 2007 statement from his private physician, Dr. G. Nevertheless, there are no objective range of motion findings in these treatment records. The only evidence on file material to the evaluation of the cervical spine disability on the basis of range of motion is contained in the report of VA examination from April 2006. The April 2006 VA examiner noted the Veteran's reports of constant aches and pain in his neck. The Veteran reported he experiences flare-ups 8 to 12 times a month. He denied any radiating pain in his arms, or any bowel and bladder incontinence. Range of motion testing revealed forward flexion to 45 degrees, with pain at 45 degrees; extension to 45 degrees, with pain at 45 degrees; right lateral bend to 25 degrees, with pain at 25 degrees; left lateral bend, with pain at 20 to 22 degrees; right rotation to 62 degrees, with pain at 62 degrees; and, left rotation to 50 degrees, with pain at 48 to 50 degrees. Upon additional physical examination, the examiner noted tenderness of the cervical spine, but no spasms or muscle weakness. Additionally, arm and grip strength was normal, bilaterally. Bicep reflexes were also noted to be 2+, bilaterally. The evidence for the period prior to March 7, 2011 simply does not show that the Veteran's cervical spine disability is productive of: forward flexion of the cervical spine limited to 15 degrees or less; or, combined range of motion of the cervical spine limited to 170 degrees or less; or, muscle spasm, guarding, or localized tenderness, though not resulting in abnormal gait or abnormal spinal contour. Id. Therefore, there is simply no basis to assign the higher 20 percent rating prior to March 7, 2011. Since March 7, 2011 Concerning the second period on appeal, the Veteran's VA and private treatment records dated since March 2011, similarly show his continuous complaints of pain and treatment for his service-connected cervical spine disability. However, there are no objective range of motion findings in these treatment records. The March 2011 VA examination report notes the Veteran's complaints of daily pain concerning his neck. The Veteran again denied weakness in his upper extremities, but did indicate he had some radiating pain to the right shoulder and right shoulder blade. The Veteran reported that during flare-ups, he lays in bed, uses heat, and takes medications, but does not seek a medical provider. Range of motion testing revealed flexion to 30 degrees, repeated three times with pain throughout; extension to 30 degrees on the first and second attempts, with a range of motion of 25 degrees on the third, all with pain throughout; left lateral flexion to 20 degrees, repeated three times with pain throughout; right lateral flexion to 25 degrees, repeated three times and pain throughout; left lateral rotation to 25 degrees on the first attempt, with a range of motion of 20 degrees on the second and third and pain throughout; and, right lateral rotation to 60 degrees on the first and second attempts, with a range of motion to 55 degrees on the third attempt and pain throughout. Regarding any neurological impairment, the March 2011 VA examiner specifically found there were no neurological symptoms associated with the cervical spine disability. The examiner stated the Veteran's neurological examination was normal with a normal sensory examination and no evidence of muscle atrophy or weakness. Finally, the examiner stated there was no evidence of incapacitating episodes. In July 2013, in compliance with the June 2013 Board remand directives, the Veteran was once again examined to determine the nature and severity of his cervical spine disability. Range of motion testing revealed flexion to 40 degrees, with no objective evidence of pain; extension to 0 degrees, with no objective evidence of pain; right lateral flexion to 30 degrees, with pain at 30 degrees; left lateral flexion to 45 degrees, with no objective evidence of pain; right lateral rotation to 60 degrees, with pain at 60 degrees; and, left lateral rotation to 80 degrees, with no objective evidence of pain. The examiner stated the Veteran was able to perform three repetitions, with no additional limitation in range of motion. However, the examiner did indicate the Veteran suffers from functional loss and functional impairment due to pain on movement and less movement than normal. There was no indication of muscle spasms, localized tenderness, or pain to palpitation. Further, muscle strength testing, deep tendon reflexes, and the sensory examination were all normal. Regarding any neurological problems, the examiner stated the Veteran does not suffer from any radicular pain or other signs or symptoms due to radiculopathy. The examiner also found the Veteran does not have any bowel or bladder problems, and there was no evidence of incapacitating episodes within the last 12 months. The objective range of motion findings for this period on appeal do not meet the criteria for a disability rating in excess of 20 percent. The evidence during that period does not show that the Veteran's cervical spine disability is productive of: forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. For the entire period on appeal (including both prior to and from March 7, 2011), the Board has considered whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 (2013) and 4.45 (2013). See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran has consistently complained of pain and stiffness in his neck, which were noted during his VA examinations in April 2006, March 2011, and July 2013. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath, 1 Vet. App. at 592 (1991). Pursuant to 38 C.F.R. § 4.59 (2013), painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Despite the Veteran's complaints of pain, this did not result in limitation of flexion of the cervical spine not greater than 30 degrees, or limited to 15 degrees as is required for disability ratings higher than 10 and 20 percent, respectively. The Veteran was still able to demonstrate range of motion during both of his VA examinations to the points indicated above. Although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Burton, the Court found the Board had failed to address painful motion and the applicability of 38 C.F.R. §4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair. Id. But, here, the VA compensation examinations did not reveal additional functional impairment, including additional limitation of motion, on account of his pain, etc, that was not already contemplated by the range of motion measurements set forth in the reports. Thus, a higher rating is not warranted for either rating period on appeal even with consideration of painful motion and other factors. In addition to considering the orthopedic manifestations of the cervical spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2013). The maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 8525 contemplates paralysis or incomplete paralysis of the tibial nerve. Moderate or mild incomplete paralysis warrants a 10 percent rating. Severe incomplete paralysis warrants a 20 percent rating. For complete paralysis of this nerve, a 30 percent rating is warranted. Complete paralysis involves paralysis of all of the muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; where the toes cannot be flexed, adduction is weakened and plantar flexion is impaired. 38 C.F.R. § 4.124a, Diagnostic Code 8525. Here, although the Veteran has reported some cervical spine pain, including subjective complaints of radiation into the right upper shoulder and shoulder blade as reported in March 2011 VA examination, the preponderance of the evidence is against a finding that there are any associated objective neurological abnormalities of an upper extremity. During the March 2011 VA examinination, the examiner specifically found there were no neurological symptoms associated with the cervical spine disability. The examiner stated the Veteran's neurological examination was normal, with a normal sensory examination and no evidence of muscle atrophy or weakness. These findings were echoed by the July 2013 VA examiner who also determined the Veteran did not have radiculopathy. In fact, there is no evidence contained in any of the VA examinations or VA or private treatment records indicating any relevant findings of radiculopathy or diagnosis of any radiculopathy or peripheral neuropathy associated with the service-connected cervical spine disability. In reaching the above conclusions, the Board has not overlooked the Veteran's statements and those submitted on his behalf, with regard to the severity of his cervical spine disability. In this regard, the Veteran and other lay persons are competent to report on factual matters of which they had firsthand knowledge, e.g., experiencing chronic pain and stiffness due to the neck disability. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence with respect to the presence of pain and the severity of such during his numerous VA examinations. He is competent to provide such statements, and the Board finds that these statements are credible. The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight where applicable. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches . . . the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). Extra-Schedular Consideration The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. Here, the Veteran's 10 and 20 percent ratings presently assigned take into consideration the functional impairment resulting from the objective findings and subjective complaints. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In summary, the most probative evidence of record fails to demonstrate that a disability rating higher than 10 percent prior to March 7, 2011, and a rating higher than 20 percent thereafter, is warranted for the Veteran's service-connected cervical spine disability. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A disability rating higher than 10 percent for chronic myositis of the cervical spine prior to March 7, 2011, is denied. A disability rating higher than 20 percent for chronic myositis of the cervical spine since March 7, 2011, is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran is seeking entitlement to an initial disability rating higher than 20 percent for degenerative arthritis of the thoracic spine. In April 2008, he was also granted service connection for sciatica of the left and right lower extremities, pursuant to DC 8520. In January 2011, the Board remanded this claim to the RO so the Veteran could be reexamined, in part, to identify any current neurological symptoms associated with the thoracic spine disability, to specify the nerves involved, and express an opinion as to the severity of the disability for each nerve involved. The Veteran was afforded a VA examination in March 2011. The examiner noted that the Veteran reported low back pain radiating down his right lower extremity with paresthesias in the right lower extremity. The examiner stated that these symptoms are consistent with sciatica with involvement of the sciatic nerve. Unfortunately, the examiner did not offer an opinion as to the severity of the sciatic nerve involvement. Thereafter, in June 2013, the Board again remanded this claim for an opinion as to the severity of the Veteran's service-connected sciatica of the right and left lower extremities. In the July 2013 VA examination, the examiner specifically stated the Veteran does not have any radicular pain or any other signs or symptoms due to radiculopathy, or any other neurological impairments. The Board finds that this examination is inadequate for rating purposes because, despite the examiner's assertions, the Veteran has clearly established his entitlement to service connection for sciatica of the right and left lower extremities. Therefore, the determinative issue was not the existence of such a disability, but a comment as to the severity of the service-connected disabilities. As noted above, consideration of associated objective neurologic abnormalities is inherent in the evaluation of the spine rating claims on appeal. See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. As such, a new examination is required before the Board may adjudicate this claim. Finally, any relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all relevant treatment records dated since June 2013. If the records cannot be obtained, the Veteran should be notified of such. 2. After the above development has been completed to the extent possible, schedule the Veteran for a VA neurological examination, with a different examiner than the one from the July 2013 examination, to determine the severity of his service-connected sciatica of the right and left lower extremities. The examiner should identify and completely describe all current neurological symptomatology in accordance with the Diagnostic Code 8520. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. 3. The RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. The RO should then readjudicate the claim. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs