Citation Nr: 1334443 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 91-52 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a higher schedular rating for residuals of contusion, left mid-back, currently evaluated as 10 percent disabling. 2. Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1). 3. Entitlement to a higher rating for incomplete paralysis of the long thoracic nerve with musculoskeletal pain in the left (minor) shoulder, currently evaluated as 10 percent disabling. 4. Entitlement to an effective date prior to March 4, 2010, for a higher rating for incomplete paralysis of the long thoracic nerve with musculoskeletal pain in the left (minor) shoulder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to November 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1991 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The April 1991 rating decision was the subject of subsequent Board decisions, with the most recent one on the merits being an August 2008 Board decision. That decision described the earlier procedure regarding the issue of a higher rating for residuals of left mid back contusion. That decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in June 2009. Thereafter, the Board remanded the case to the RO in December 2009 and again in January 2011. The case is also on appeal from an October 2010 RO rating decision which increased the rating for the Veteran's service-connected long thoracic nerve incomplete paralysis to 10 percent, effective from March 4, 2010. The Veteran contends that a higher rating is warranted and that the effective date should be earlier than March 4, 2010. The issues of entitlement to an extraschedular rating, an increased rating for long thoracic nerve disability, and the effective date issue are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The Veteran's service-connected thoracic spine disability is manifested by complaints of pain, tenderness to palpation at the sight of the injury, and some slight limitation of motion of the thoracic spine. He does not have forward flexion of his thoracolumbar spine limited to 30 degrees or less; his combined range of motion of his thoracolumbar spine is greater than 120 degrees; and there is not muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Ankylosis and/or intervertebral disc syndrome is not present. CONCLUSION OF LAW The criteria for a schedular disability rating in excess of 10 percent for residuals of left mid back contusion have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an increased disability rating for his service-connected thoracic spine disorder. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. Stegall considerations The Board remanded this case in September 1992, October 1993, December 2003, August 2005, December 2006, December 2009, and January 2011. In essence, the Board instructed the Agency of Original Jurisdiction (AOJ) to: provide the Veteran with appropriate notice pursuant to the Veterans Claims Assistance Act of 2000 (VCAA); obtain outpatient treatment records from the VA medical centers (VAMC) in Buffalo, New York and East Los Angeles, California; schedule the Veteran for contemporaneous VA examinations and a medical opinion differentiating the symptoms associated with the Veteran's service-connected thoracic spine disability and those associated with non-service connected fibromyalgia; and review the claims file, readjudicate the claim, and furnish him a supplemental statement of the case. VA outpatient records were subsequently associated with the claims folder and the Veteran was provided with notification pursuant to the VCAA as detailed further below. The Veteran was referred for VA examinations in March 1994, April 1999, February 2000, January 2007 and November 2007, and the requested opinion concerning non service-connected fibromyalgia was obtained. There was also another VA examination in March 2010. Thereafter, the matter was readjudicated via the October 2010 and October 2011 supplemental statements of the case. Accordingly, the Board's remand instructions were fully performed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The VCAA The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5013, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104 (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). In Gilbert v. Derwinski, 1 Vet. App.49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 15 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. Crucially, the RO informed the Veteran of VA's duty to assist him in the development of his claim in letters from the AMC dated May 13, 2004 and January 8, 2007. These letters advised the Veteran of the provisions relating to the VCAA. Specifically, the Veteran was advised in these letters that VA would obtain all evidence kept by the VA and any other Federal agency, including VA facilities and service medical records. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records not held by a Federal agency. Included with the May 2004 letter were copies of VA Form 21- 4142, Authorization and Consent to Release Information, and the letter asked that the Veteran complete this release so that VA could obtain these records on his behalf. The letters also informed the Veteran that for records he wished for VA to obtain on his behalf he must provide enough information about the records so that VA can request them from the person or agency that has them. Additionally the May 2004 letter specifically advised the Veteran that in order to be assigned an increased disability rating the evidence must show that his condition had worsened. See the May 13, 2004 letter at page 6. In the May 2004 letter, the Veteran was specifically notified to send or describe any additional evidence which he thought would support his claim. "If there is any other information or evidence that you think will support you claim, please let us know. If you have any evidence in your possession that pertains to you claim, please send it to us." See the May 13, 2004 letter, page 2. This request complies with the "give us everything you've got" requirement contained in 38 C.F.R. § 3.159(b) in that the RO informed the Veteran that he could submit or identify evidence other than what was specifically requested by the RO. [The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).] In short, the record indicates that the Veteran received appropriate notice under 38 U.S.C.A. § 5103. In general, a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). Since the VCAA was not enacted until November 2000, furnishing the veteran with VCAA notice prior to the adjudication in August 1990 was clearly both a legal and a practical impossibility. Indeed, VA's General Counsel has held that the failure to do so under such circumstances does not constitute error. See VAOGCPREC 7-2004. Crucially, the Veteran was provided with VCAA notice through the May 2004 and January 2007 VCAA letters and his claim was readjudicated in the May 2005, August 2006, December 2007, and October 2011 SSOCs, after he was provided with the opportunity to submit evidence and argument in support of his claim and to respond to the VA notice. Therefore, the essential fairness of the adjudication was not affected. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board accordingly finds that there is no prejudice to the Veteran in the timing of the VCAA notice. Moreover, the Veteran has not alleged any prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), [timing errors such as this do not have the natural effect of producing prejudice and, therefore, prejudice must be pled as to it]. Finally, there have been two significant Court decisions concerning the VCAA. In the first, Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a claim is comprised of five elements, the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, elements (1), (2) and (3) are not at issue. The Veteran received notice as to elements (4) and (5), degree of disability and effective date via the January 2007 letter. The Board has also considered the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (since overruled), which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. See Vazquez-Flores at 43-44. The Board observes that the Veteran was not informed of the relevant law and regulations pertaining to his claim to include as contemplated in the overruled Vazquez decision. However, the essential fairness of the adjudication was not affected because the veteran had actual knowledge of what was necessary to substantiate his claim. See Sanders, supra. The Veteran has submitted argument which specifically listed referenced Diagnostic Codes and the rating criteria pertinent to his service-connected spine disorder, and made specific argument as to how his disability had increased in severity and the effect that increase had on the his employment and daily life. See, e.g., the November 12, 1991 substantive appeal; see also the March 23, 1995; May 6, 1999; September 1, 2000; December 17, 2004 and submissions. It is therefore clear that the Veteran was or should have been aware of the applicable schedular standards. Accordingly, due to the content of the notice given and the Veteran's actual knowledge, the Board finds that the Veteran has received appropriate VCAA notice to include as contemplated by the Court in Vazquez-Flores. In any event, the Board notes that with respect to appeals of initially assigned disability ratings such as in the instant case, the additional notice requirements recently forth in Vazquez-Flores do not apply. Specifically, once service connection has been granted, VA's VCAA notice obligations are fully satisfied and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, No. 05-876 (U.S. Vet. App. May 19, 2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements]. The Board further notes that neither the Veteran or his representative has alleged that the Veteran has received inadequate VCAA notice. The Veteran is obviously aware of what is required of him and of VA. Because there is no indication that there exists any evidence which could be obtained which would have an effect on the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran]. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all legally required efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the RO has obtained the Veteran's service medical records and VA treatment records as well as private treatment records which have been identified by the Veteran, including his own chiropractic opinions. The Veteran has identified no other relevant medical treatment. He was provided with VA compensation and pension (C&P) examinations in January 1990, October 1992, March 1994, April 1996, February 2000, January 2007, November 2007, and March 2010. Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran and his representative have been accorded the opportunity to present evidence and argument in support of his claim during the many years (over 2 decades) that the Veteran has been pursuing this claim. In May 2000, the Veteran requested a Central Office Hearing; he withdrew that request in writing in June 2001. He has not made any other hearing request. The Board will therefore proceed to a decision. Relevant law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Change in rating criteria The Veteran filed his initial claim of entitlement to service connection in November 1989, and the currently assigned 10 percent rating has been made effective from that date. During the pendency of this appeal, the applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended effective September 26, 2003. See 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. VA's Office of General Counsel has determined that the amended rating criteria can be applied only for the period from and after the effective date of the regulatory change. The Board can apply only the former regulation to rate the disability for periods preceding the effective date of the regulatory change. However, the former rating criteria may be applied prospectively, beyond the effective date of the new regulation. See VAOPGCPREC 3-2000. The Veteran has been provided with both the former and the current regulatory criteria. The increased rating claim was readjudicated under the current schedular criteria in the May 2005 SSOC. The Veteran and his representative have submitted written statements subsequent to the May 2005 SSOC; they did not indicate that there was any additional information or evidence to submit. Therefore, there is no prejudice to the Veteran in the Board adjudicating the claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Assignment of diagnostic code The service-connected disability has been rated under former Diagnostic Code 5291 [spine, limitation of motion of, dorsal], and under the current General Rating Formula for Diseases and Injuries of the Spine. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In the December 2007 rating decision, the RO separately rated neurological disabilities associated with the service-connected thoracic spine disability. See 38 C.F.R. § 4.25 (2013); see also Note (1) of the current General Rating Formula for Diseases and Injuries of the Spine. The Veteran has not expressed dissatisfaction with that determination. Use of former Diagnostic Code 5293 and the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, which rate based on neurological symptomatology, is therefore not appropriate, since such would constitute prohibited pyramiding. See 38 C.F.R. § 4.14 (2013); see also Fanning v. Brown, 4 Vet. App. 225 (1993) [the evaluation of the same disability under various diagnoses is to be avoided]. (i.) The former schedular criteria The Board finds that former Diagnostic Code 5291, which provides rating criteria for limitation of dorsal (thoracic) spine motion, is applicable in the instant case. Indeed, the Veteran's service-connected thoracic spine disability is primarily manifested by limitation of thoracic spine motion and tenderness. Accordingly, former Diagnostic Code 5291 is for potential application in this case. Additionally, the Board notes that Diagnostic Code 5291 was employed in the Board's April 2001 and August 2008 decisions and that no disagreement as to the assigned diagnostic code was raised in the August 2003 or June 2009 Joint Motions for Remand. The Board believes that if any disagreement had been present regarding the assigned Diagnostic Code had been present, this would have been brought to the Court's attention. See Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ["[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"]. The Board therefore finds that the Veteran's thoracic spine disability is most appropriately rated under former Diagnostic Code 5291. (ii.) The current schedular criteria The Veteran's service-connected thoracic spine disability has been rated as thoracolumbar strain under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). After a review of the evidence pertaining to the Veteran's service-connected thoracic spine disability, the Board has determined that the most appropriate diagnostic code for evaluation of the disability is the code it is currently rated under, Diagnostic Code 5237. The Veteran's thoracic spine condition appears to involve principally pain and limitation of motion, which is congruent with Diagnostic Code 5237. There is no diagnosis of sacroiliac injury, spinal stenosis, spondylolisthesis or ankylosing spondylitis. There is no history of spinal fusion. In any event, with respect to the current schedular criteria all thoracic spine disabilities [with the exception of intervertebral disc syndrome] are rated using the same criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2013). The Veteran's service-connected thoracic spine disability is not consistent with intervertebral disc syndrome, and such has not in fact been diagnosed. Moreover, there is no evidence of incapacitating episodes, which is the symptom contemplated in rating a spine disability under the current Formula for Rating Intervertebral Disc Syndrome. Thus, the Veteran's service-connected low back disability will be rated using the General Rating Formula for Diseases and Injuries of the Spine. Specific rating criteria (i.) The former schedular criteria Former Diagnostic Code 5291 [limitation of motion, thoracic spine] provides a maximum 10 percent rating for moderate and severe limitation of motion of the dorsal spine. Slight limitation of motion warrants a noncompensable rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5291 (2002). (ii.) The current schedular criteria General Rating Formula for Diseases and Injuries of the Spine A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 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. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). Rating musculoskeletal disabilities The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2013). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. Analysis The Veteran is seeking entitlement to an initial compensable evaluation in excess of 10 percent for his service-connected thoracic spine disability. Initial matter The matter currently before the Board includes a somewhat unusual situation where the Veteran is service-connected for a back disability and is himself a chiropractor. As such, he is a competent source of medical evidence related to his claim. That is to say, the Veteran's statements as to medical matters are not merely lay opinions which the Board may disregard as not probative. Compare Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) [lay persons without medical training generally are not competent to attribute symptoms to a particular cause or to otherwise comment on medical matters such as diagnosis] with Goss v. Brown, 9 Vet. App. 109 (1996) [to qualify as an expert, a person need not be licensed to practice medicine, but just have special knowledge and skill in diagnosing and treating human ailments]. As will be set out below, the Board has considered the Veteran's medical opinions. There is, however, a distinction between credibility and competency. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Although self-serving statements are to be expected in connection with claims for VA benefits, and such statements are not necessarily suspect, the Board may properly consider the personal interest a claimant has in his or her own case. This includes a veteran who is a medical professional. See Pond v. West, 12 Vet. App. 341, 346 (1999) [the self interest of a claimant, including a medical professional, may affect the credibility of testimony]. Concerning personal interest, the Board notes that in September 2000 the Veteran asserted that "the Veteran's life has been significantly altered medically, emotionally, and financially to the level of 200% disabled. No miniscule level of monies offered by the veteran's administration [sic] could ever compensate the veteran for his current disability status." See the Veteran's September 1, 2000 statement, page 2. This statement flies in the face of the vast majority of the objective evidence in the record, which in fact demonstrates that the Veteran continues to lead an active lifestyle, including daily exercise and work as a chiropractor. He has reported that his activities have been limited only in the areas of swimming and sailing which he can no longer enjoy due to pain on rotation. See the January 2007 VA medical examination report. In the June 2009 Joint Motion for Remand, the parties agreed that this statement appeared to be an isolated expression of frustration. Accordingly, the Veteran's credibility will be considered where and as appropriate. Mittleider concerns The Board is presented with a record on appeal which demonstrates that in addition to the service-connected thoracic spine disability, the Veteran has been diagnosed with fibromyalgia and long thoracic nerve injury. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Additionally, the evaluation of the same disability or manifestation under various diagnosis is to be avoided. The Board's December 2006 remand was undertaken to obtain evidence on this point. The January 2007 VA medical examination determined that the only musculoskeletal pain which is part of the service-connected disability at issue was tenderness noted in the Veteran's thoracic spine region. The Veteran's own medical opinion also seems to differentiate between the fatigue and generalized muscular pain attributable to fibromyalgia and the service-connected thoracic spine disability. Additionally, the examiner in March 2010 felt that the aching and pain which the Veteran has in the area between his scapula and spine was because of weakened muscles characteristic of long thoracic nerve injury. Accordingly, tenderness of the thoracic spine, but not fatigue and generalized pain throughout the body, and not pain and aching between his scapula and spine from his long thoracic spine nerve injury will be considered part of the service-connected disability being rated. Schedular rating (i.) The former schedular criteria The Veteran is in receipt for the maximum 10 percent disability rating for his thoracic spine disability under the applicable diagnostic code, Diagnostic Code 5291. (ii) The current schedular criteria As discussed above, under the current schedular criteria the Veteran's thoracic spine disability is appropriately rated under Diagnostic Code 5237and thus the General Rating Formula for Diseases and Injuries of the Spine. In order to warrant the next higher 20 percent disability rating there must be forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. These criteria are not met. Neither the January 2007 VA examination nor the Veteran's January 2007 self examination included range of motion testing. However, the November 2007 VA examiner found full range of motion with reports of pain on rotation but without loss of range of motion. The March 2010 VA examiner found that the Veteran had flexion to 90 degrees and extension to 30 degrees on multiple trials. He could lateral flex and laterally rotate to 30 degrees, bilaterally. At no time under consideration, from the 1990 VA examination to the present, has the Veteran's forward flexion of the spine been measured as less than full flexion. See 38 C.F.R. § 4.71a, Plate V [normal forward flexion of the thoracolumbar spine is 90 degrees.] However, prior VA examinations, specifically a February 2000 VA examination, showed some loss of range of spinal motion. In particular, the February 2000 VA examination showed full range of flexion, extension, left rotation and left lateral flexion, but with right rotation of 20 out of 30 degrees and right flexion of 20 out of 30 degrees. This is the most serious loss of range of motion documented in the file. It corresponds to thoracolumbar spine range of motion of 220 degrees, that is to say, the loss of range of motion meets the criteria for the currently assigned 10 percent disability rating but no higher. Additionally, there is no finding of muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Spasm has not been found on any of the applicable VA examinations undertaken from January 1990 to the present. In short, the schedular criteria for the assignment of a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine have not been met. The criteria for a still higher disability rating are also not met. The Veteran has not exhibited ankylosis of the entire thoracolumbar spine. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The medical evidence of record fails to demonstrate the presence of any ankylosis; examinations have shown that the Veteran was able to forward flex the thoracolumbar spine to 90 degrees. Because the Veteran is able to move his thoracic spine, by definition, it is not immobile. Additionally, on VA MRI in November 1999, it was noted that there was no evidence of ankylosing spondylitis. Therefore, the Board concludes that ankylosis is not present. Accordingly, the currently assigned 10 percent schedular rating will be continued. DeLuca considerations The Board has considered whether an increased disability rating is warranted for the Veteran's thoracic disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45, and 4.59 and the Court's holding in DeLuca. The functional impairment caused by pain should be compensated. The objective clinical findings of record, however, do not reflect impairment that warrants a higher rating. The Board notes that such is not for application under the former criteria, as under it, the highest rating which can be assigned is 10 percent under Diagnostic Code 5291. In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum schedular disability rating available, as here under Diagnostic Code 5291, it is not necessary to consider whether 38 C.F.R. §§ 4,40 and 4.45 are applicable. With respect to the current criteria, the Board notes that the February 2000 VA examiner made a specific finding that there was no fatigability, weakness or incoordination. The examiner in October 2010 indicated that the Veteran could flex to 90 and extend to 30 degrees on multiple trials. He opined that the Veteran's left thoracic spine disability would be limited functionally to 15 degrees of left lateral rotation and 70 degrees of forward flexion based on chronic aching pain and diminished endurance. The record on appeal otherwise does not disclose clinical findings of DeLuca factors sufficient to warrant a rating higher than 10 percent, and is notable for a nearly complete absence of clinical findings to support the veteran's reports of pain related to the disability at issue. This was noted by the February 2000 VA examiner, as well as by a September 2001 private medical provider. The record thus shows no clinical findings which would warrant an increased evaluation under 38 C.F.R. §§ 4.40, 4.45 and 4.59. The current 10 percent rating adequately compensates the Veteran for any functional impairment attributable to his thoracic spine disability which includes episodes of pain and some limited motion. See 38 C.F.R. §§ 4.1, 4.10 (2013). Even if the Veteran's complaints of pain are accepted, the pain which he complains of does not limit his spine motion to the degree required for a higher rating for the disability at issue, even on use, and no findings to support functional impairment warranting a higher rating, due to pain from the disability at issue, have been provided. The Board notes that the Veteran has been awarded a 10 percent rating for long thoracic nerve impairment in generally the same area as his service-connected residuals of left mid back contusion. The opinion of the VA examiner in March 2010 was that pain in the area of the Veteran's service-connected spine problem was more likely secondary to his long thoracic nerve injury. The RO increased his rating for such disability when this examination report was considered in October 2010. This was after the June 2009 Joint Motion for Remand which advised that the Board had failed to consider and discuss notations such as winging of the Veteran's left scapula and atrophy and poor development of the left rhomboids and inferior trapezius as compared to the right. The Board remanded in December 2009 to have an examiner indicate whether this symptomatology was related to the disability at issue, or to the long thoracic nerve injury, and the examiner in March 2010 concluded that it was most likely due to the long thoracic nerve injury. Accordingly, the Board concludes that this symptomatology is attributable to the Veteran's long thoracic nerve injury, in consonance with the opinion on VA examination in March 2010. Accordingly, such symptomatology may not be used to award the Veteran a higher rating under 38 C.F.R. §§ 4.40, 4.45 for the disability now at issue. 38 C.F.R. § 4.14. Credibility considerations The Board has considered the credibility of the statements offered by the Veteran in this appeal and does not believe a question as to his credibility has actually been raised with regard to the mid-back. As already noted, the Veteran has been shown to be medically competent to the extent of his medical training. It appears to the Board that many of the Veteran's assertions actually go to the impairment which is contemplated by the separate evaluation for the long thoracic nerve disability. That matter is not addressed on the merits in this decision, but is being remanded to the RO for further development. To the extent that the Veteran's assertions may go to the question of the rating criteria for the mid-back disability, the Board finds that the objective evidence regarding the regulatory criteria for the mid-back (such as limitation of motion, muscle spasm, guarding, gait, spinal contour, etc.) is the most probative evidence. In fact, to a large extent the Veteran in his interviews with various examiners has not made assertions which are in great contrast to the objective examination findings. Fenderson considerations This appeal arose from the initial assignment of a disability rating. The Veteran has been assigned a 10 percent disability rating effective from the day after his separation from service, November 13, 1989. As alluded to above, in Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially-assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In this case, the Board finds that at no time since the effective date of service connection has the Veteran met or nearly approximated the criteria for higher than a 10 percent rating under either the current or former spine regulations. The condition of the Veteran's back has been relatively stable. At the time of the March 1994 VA medical examination, the Veteran acknowledged that there had been no change in his condition since the January 1990 VA examination. In January 1990, the Veteran was found to be suffering from tenderness in the thoracic spine, more apparent on rotation with full range of motion. In November 2007, the presentation of symptoms was largely the same with tenderness and pain on rotation but with essentially full range of motion. Range of motion was fairly good or better on examination in March 2010, as it had been earlier. In the absence of any evidence showing more significant back pathology for any period after service, the 10 percent disability rating will therefore continue to be assigned for the entire appellate period. Conclusion For the reasons and bases set out above the Board has determined that the evidence of record does not provide a basis for the assignment of a schedular rating in excess of 10 percent for the thoracic spine disability at issue. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER A schedular disability rating in excess of 10 percent for residuals of a left mid back contusion is not warranted. To this extent, the appeal is denied. REMAND With regard to the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) for the mid-back disability, the Board's reading of the June 2009 Joint Motion is that the parties have agreed that the question of whether the evidence regarding the Veteran's reported problems with his occupation in 2003-2004 showed marked interference with employment so as to warrant referral for an extraschedular evaluation. Appropriate action by the RO on this matter is therefore necessary. With regard to the increased rating for long thoracic nerve issue, this disability is rated based on the extent of paralysis under Diagnostic Code 8519. In reviewing the report of the March 2010 VA examination, the Board views the examiner's description of the nerve disability to be couched in large extent to limitation of motion. It is unclear if the limitation of motion due to the mid-back disability was being considered or whether it was only impairment of the long thoracic nerve which was being considered. Further development is necessary to allow for informed appellate review of this issue. With regard to the effective date issue, in at least one statement (November 2010 letter to AMC), the Veteran argues that the effective date for the long thoracic nerve should go back to April 1996 (the date of a VA examination). It is noted here that the effective date of September 26, 2003, was assigned by the RO in the December 2007 rating decision which established service connection for this disability. The United States Court of Appeals for Veterans Claims (Court) has made it clear that there can be no freestanding claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C.A. § 7105. Rudd v. Nicholson, 20 Vet.App. 296 (2006). It is not clear whether the Veteran is actually advancing a freestanding claim or whether he is arguing that a rating in excess of 10 percent is warranted prior to March 4, 2010, based on evidence subsequent to September 26, 2003. At any rating, what has been described as an effective date issue is deferred pending the development directed by this remand. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should contact the Veteran and his representative and request clarification of the contentions/legal argument being offered in connection with what appears to be the issue of entitlement to an earlier effective date for the grant of service connection for long thoracic nerve disability. 2. The Veteran should be scheduled for a VA examination of the long thoracic nerve by an appropriate medical doctor. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests/studies should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should offer an opinion as to whether the impairment resulting from the service-connected long thoracic nerve disability more nearly approximates: a) moderate incomplete paralysis, b) severe incomplete paralysis, or c) complete paralysis; inability to raise arm above shoulder level, winged scapula deformity. 3. After completion of the above, the RO should review the claims file and determine if referral for extraschedular consideration is warranted for the reported occupational problems in 2003-2004. The RO should also determine whether an increased rating is warranted for the long thoracic spine disability. Finally, the effective date issue should be readjudicated. The Veteran and his representative should be furnished an appropriate supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs