Citation Nr: 1335213 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-26 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased initial evaluation for service-connected cervical spine degenerative changes, evaluated as 10 percent disabling prior to June 12, 2008, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from February 1993 to May 1993, and from November 2002 to January 2006. This issue is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for cervical strain, evaluated as noncompensable (0 percent disabling). The Veteran appealed the issue of entitlement to an initial compensable evaluation. In July 2007, the RO recharacterized the Veteran's service-connected neck disability as "cervical spine degenerative changes," and awarded a 10 percent rating for the disability, effective the date of service connection, i.e., January 4, 2006. In March 2009, the RO increased this evaluation to 20 percent, effective June 12, 2008. The Board notes that the issue pertaining to the rating of this disability remains in appellate status because the increased evaluations awarded during the current appeal are not a complete grant of the maximum benefits available. AB v. Brown, 6 Vet. App. 35 (1993). In January 2011, November 2012, and April 2013, the Board remanded the Veteran's claim to the Appeals Management Center (AMC) for additional development. FINDINGS OF FACT 1. Prior to June 12, 2008, the Veteran's cervical spine degenerative changes are shown to be productive of subjective complaints of pain, and cervical spine flexion greater than 30 degrees, with a combined range of motion of greater than 170 degrees, but 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, or incapacitating episodes. 2. From June 12, 2008 to April 11, 2011, the Veteran's cervical spine degenerative changes are shown to be productive of subjective complaints of daily pain, and some limitation of motion, but not a limitation of flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine, or IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 3. Resolving all reasonable doubt in the Veteran's favor, as of April 12, 2011, the Veteran's cervical spine is shown to be productive of limitation of motion due to pain with additional loss of range of motion on repeated testing that more nearly approximates 15 degrees of flexion, but not unfavorable anklylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. Prior to June 12, 2008, the criteria for an initial evaluation in excess of 10 percent for cervical spine degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5243 (2013). 2. From June 12, 2008 to April 11, 2011, the criteria for an evaluation in excess of 20 percent for cervical spine degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5243 (2013). 3. As of April 12, 2011, the criteria for a rating of 30 percent, and no more, for cervical spine degenerative changes have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5237, 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Initial Evaluation The Veteran argues that an increased initial evaluation is warranted. In March 2006, the Veteran filed his claim for service connection. In May 2006, the RO granted service connection for cervical strain, evaluated as noncompensable. The Veteran appealed the issue of entitlement to an initial compensable evaluation. In July 2007, the RO recharacterized the Veteran's service-connected neck disability as "cervical spine degenerative changes," and awarded a 10 percent rating for the disability, effective the date of service connection, i.e., January 4, 2006. In March 2009, the RO increased this evaluation to 20 percent, effective June 12, 2008. In August 2013, subsequent to the most recent supplemental statement of the case, dated in June 2013, additional evidence in the form of statements from the Veteran and his wife were received. This evidence is accompanied by a waiver of RO review. See 38 C.F.R. § 20.1304(c) (2012). The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Under 38 C.F.R. § 4.71a, DC 5237 (lumbosacral and cervical strain), and DC 5242 (degenerative arthritis of the spine) (see also DC 5003), are rated under the "General Rating Formula for Diseases and Injuries of the Spine." The General Rating Formula provides that a 10 percent evaluation 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 height. An evaluation of 20 percent 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. Id. The General Rating Formula provides that a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. Id. In addition, the regulation provides that intervertebral disc syndrome may be rated under either the General Rating Formula or the "Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes", whichever results in a higher rating. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes states that a 20 percent rating is warranted for IDS: With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IDS: With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero 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. 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 cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Pain alone does not constitute a functional loss under VA regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). As for the history of the Veteran's cervical spine disorder, see 38 C.F.R. § 4.1 (2013), the Veteran's service medical records show that in 2005, the Veteran reported a history of cervical spine symptoms beginning in 2003, with associated blurry vision and ringing in the ear. An October 2005 X-ray showed mild degenerative changes at C6-C7, otherwise unremarkable. The claims file includes statements from the Veteran's spouse, dated in 2009, and 2013, in which she states that the Veteran has a great deal of pain in various areas, to include his neck, and that he has sleep difficulties. A statement from a friend of the Veteran, K.F., dated in September 2007, shows that the Veteran was noted to have pain in various body areas, to include his neck. A. Prior to June 12, 2008 A VA pre-discharge examination report, dated in November 2005, shows that on examination, the neck had flexion to 45 degrees, extension to 45 degrees, lateral flexion to 45 degrees, bilaterally, and rotation to 80 degrees, bilaterally. VA progress notes show ongoing treatments for neck pain. This evidence shows that there are some findings of a limited range of motion (LROM) due to pain. See e.g., reports, dated in June and November of 2006. There are also findings that the cervical spine had a full range of motion (FROM). See e.g., reports, dated in August 2006, and July 2007. For all of these reports, specific degrees of motion were not provided. A report from R.T.R., DC, dated June 6, 2008, indicates that the Veteran was treated two days before, at which time he was found to have flexion to 38 degrees, extension to 25 degrees, left lateral flexion to 25 degrees, right lateral flexion to 24 degrees, left rotation to 44 degrees, and right rotation to 54 degrees. Based on the evidence, the Board finds that an initial evaluation in excess of 10 percent is not warranted. There is no medical evidence to show muscle spasm, guarding, localized tenderness not resulting in abnormal gait or abnormal spinal contour. In addition, the only recorded ranges of motion in all planes for the cervical spine are found in the November 2005 VA examination report, and R.T.R.'s June 2008 report. These results show that the criteria for no more than a 10 percent initial evaluation for the cervical spine have been met. Although the Board has considered a May 2008 VA progress note, which notes flexion to 20 degrees, the flexion shown appears to have been the result of a temporary exacerbation, as opposed to a worsening of the underlying condition. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Specifically, the Veteran showed much greater ranges of motion demonstrated just one month later. See R.T.R.'s June 2008 report. Finally, there is no evidence to show that the Veteran had incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the any 12 month period. Therefore, an initial evaluation in excess of 10 percent is not warranted. In summary, the criteria for an initial evaluation in excess of 10 percent are not shown to have been met, and the claim must be denied. Furthermore, there is no competent evidence to show that the Veteran has a diagnosed neurological disorder that is related to his service-connected disability. See General Rating Formula, Note 1. In this regard, a March 2007 VA EMG (electromyogram) notes that there is no electrodiagnostic evidence of cervical radiculopathy on the left. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased initial evaluation could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca v. Brown, 8 Vet. App. 202, 204-206 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). In this case, the evidence does not show functional loss due to pain to warrant an initial evaluation in excess of 10 percent. In particular, the Board notes the lack of such findings as neurological impairment, loss of strength, and muscle atrophy. In this regard, the November 2005 VA pre-discharge examination report shows that the examiner stated that the Veteran's service records had been reviewed. The Veteran complained of daily, left-sided neck pain that radiated up into the upper neck area, that was exacerbated by stress and tension. He reported a very severe sharp pain when he first had symptoms, which had eased since. He reported using Motrin for a number of body pains, including neck pain, three times per day. He denied flare-ups. The report notes the following: he was not taking any medication, and he was not in a neck brace. There was no effect on his ADLs (activities of daily living). There was no relevant history of surgery or hospitalization. There was no change in motion upon repeated or resisted testing, and no additional limitation of motion. Sensation was normal to light monofilament touch in all extremities, Deep tendon reflexes were equal and active, 2+. An X-ray was noted to show minimal bone spurring without any focal pathology or disc joint narrowing, and no fracture or dislocation, or other bone or joint abnormalities. The relevant diagnosis was cervical strain. VA progress notes show ongoing treatments for neck pain. In November 2006, it was noted that his X-rays were "not very remarkable." A November 2006 MRI (magnetic resonance imaging) study contains an impression noting mild degenerative joint disease resulting in mild right-sided neural foraminal stenosis. There are findings of 5/5 strength in his upper extremities, and/or "normal" strength. See e.g., reports, dated in May and November of 2006, and January 2008. He was also repeatedly noted to have no neurological deficits and/or a normal neurological/sensory examination. See e.g., reports, dated in June and August of 2006, July, August, and September of 2007. R.T.R.'s June 2008 report notes strength in the deltoids and biceps of no less than 4+, with wrist and finger strength no less than 2+. X-rays were noted to show a mild cervical curve reversal, and an apparent old avulsion fracture of the anterior/inferior endplate of C6, with normal disc spaces. In summary, the November 2005 VA pre-discharge examination report shows that the Veteran denied flare-ups. The examiner concluded that there were no effects upon his daily activities. There was no change in motion upon repeated or resisted testing, and no additional limitation of motion. To the extent that R.T.R.'s report notes strength as little as 2+ in some fingers or a wrist, there is no basis upon which to find that this is the result of the Veteran's service-connected disability, as he has also repeatedly noted to have no neurological deficits and/or a normal neurological/sensory examination. Therefore, when the ranges of motion in the cervical spine are considered together with the evidence showing functional loss -- to include the findings pertaining to neurologic deficits, muscle strength, and the lack of evidence of muscle atrophy -- the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant an initial evaluation in excess of 10 percent. B. June 12, 2008 to April 11, 2011 A VA examination report, dated in June 2008, shows that the report indicates that the examination was performed on June 12, 2008. The report shows that on examination, the Veteran's cervical spine had flexion to 25 degrees. A VA examination report, dated in April 2011, shows that on examination, the Veteran's cervical spine had flexion to 25 degrees. The Veteran was noted to have a history of a 12-hour incapacitating episode in December 2010, and in February 2011. On examination, there was no cervical spine ankylosis. There were no incapacitating episodes due to intervertebral disc syndrome. The Board finds that the evidence is insufficient to show that the criteria for an evaluation in excess of 20 percent have been met for the cervical spine. The recorded ranges of motion do not show that the cervical spine had flexion of 15 degrees or less. There is no evidence of ankylosis. Accordingly, the Board finds that for the period from June 12, 2008 to June 3, 2013, an evaluation in excess of 20 percent is not warranted under the General Rating Formula for the cervical spine, and the claim must be denied. Furthermore, there is no competent evidence to show that the Veteran has a diagnosed neurological disorder that is related to his service-connected disability. See General Rating Formula, Note 1. With regard to incapacitating episodes due to intervertebral disc syndrome, the June 2008 VA examination report notes that the Veteran had 156 incapacitating episodes in the past year, three days per week, each lasting an entire day. However, the Board finds that this report appears to be "by history" only, and that the criteria for an increased evaluation are not shown. Specifically, there is no corroborating evidence to support this notation. In this regard, the VA progress notes, which are extensive and detailed, do not indicate that the Veteran had any incapacitating episodes. Furthermore, the April 2011 VA examination report shows that the Veteran was noted to have a history far less severe incapacitating episodes. Specifically, he was noted to have only had two 12-hour incapacitating episodes in the past 12 months. See also June 2013 VA examination report (noting that there were no incapacitating episodes due to intervertebral disc syndrome). The Board therefore finds that the evidence is insufficient to show that the Veteran had incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the any 12 month period. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca; VAGCOPPREC 9-98. In this case, the medical evidence includes VA progress notes, which show ongoing treatments for neck pain. This evidence shows the following: he had "normal" strength. See report, dated in January 2008. The cervical spine had a full range of motion (FROM). See report, dated in November 2008. The Veteran had no neurological deficits and/or a normal neurological/sensory examination. See e.g., reports, dated in March 2009, February 2011. The June 2008 VA examination report shows that the Veteran complained of constant, daily, intense, gnawing-type cervical spine pain. The Veteran reported having fatigue, decreased motion, stiffness, weakness, pain, and spasms. He complained of severe flare-ups four days per week, lasting hours. On examination, the Veteran's cervical spine had flexion to 25 degrees, extension to 20 degrees, lateral flexion to 20 degrees (left) and 15 degrees (right), and lateral rotation to 30 degrees, bilaterally. There was pain on motion, with pain upon 25 degrees of flexion, 20 degrees of extension, 20 degrees of lateral flexion (left), 15 degrees of lateral flexion (right), 30 degrees of lateral rotation, bilaterally. There was also additional loss of motion upon repetitive use, specifically, a loss of 15 degrees of right lateral rotation. There were spasms on the right side, with guarding, and pain on motion, but no atrophy, or weakness. An associated X-ray contains an impression of stable mild degenerative changes of the cervical spine. An associated MRI contains an impression noting a tiny annular tear involving the superior aspect of the C2-C3 intervertebral disc, and straightening of the normal cervical lordosis which could be positional in nature. Strength in the upper extremities was 5/5, bilaterally. Reflexes in the upper extremities were 2+, bilaterally. A sensory examination was normal. The Veteran stated that he had been unemployed for two months because he was in school. The diagnosis was cervical spine strain with spasm, DJD (degenerative joint disease), and DDD (degenerative disc disease), and annular tear of C2-C3. The effects on usual activities were noted to be "moderate" (toileting, dressing, bathing, feeding), "severe" (exercise, traveling, and grooming), and "prevents" (chores, shopping, and recreation). A June 2008 VA neurological examination report indicates that the Veteran was examined on June 12, 2008. The report notes that the Veteran had normal sensory and motor examinations. In summary, there is insufficient evidence of such symptoms as atrophy, incoordination, or other neurological impairment due to the Veteran's service-connected cervical spine disability, and the Board finds that the record does not show that the Veteran's functional loss due to his service-connected disability impairs him to such a degree that an evaluation in excess of 20 percent is warranted. Therefore, an increased evaluation is not warranted for the Veteran's disability on the basis of functional disability, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. C. As of April 12, 2011 An April 2011 VA examination report shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran complained of gnawing, throbbing neck pain with spasms, that were more frequent and protracted in nature. He complained of severe, weekly flare-ups lasting hours, which may result in a 3 to 5 degree decrease in left rotation. The Veteran reported having daily moderate pain lasting hours, but he denied fatigue, decreased motion, stiffness, weakness, or spasm. The report notes the following: there was no relevant history of surgery or hospitalization. The Veteran took Motrin, and methocarbamol, 500 milligrams, as needed. There was no abnormal spinal curvature. There was no spasm, atrophy, guarding, pain on motion, tenderness, or weakness. The Veteran's cervical spine had flexion to 25 degrees, extension to 18 degrees, lateral flexion to 19 degrees (left) and 30 degrees (right), and lateral rotation to 33 degrees (left) and 32 degrees (right). There was objective evidence of pain on motion. There was additional limitation of motion with repetitive motion, with flexion to 16 degrees and extension to 15 degrees. Pain was noted as the most important factor in the additional limitation of motion. A sensory examination was normal. Strength in the upper extremities was 5/5. An associated MRI report contains an impression noting prominent straightening of the cervical lordosis with some degenerative changes and stenoses. The report notes that the cervical vertebral bodies are in good alignment and have preserved height. The Veteran reported that he has been employed full-time in a clerical position for the last two years, and claimed to have lost 4 weeks of work due to his symptoms, and appointments with doctors. The diagnoses were cervical spine DJD, and cervical DDD without radiculopathy. Effects on employment were noted to be increased tardiness and absenteeism, and decreased concentration due to pain. A June 2013 VA examination report shows that the Veteran reported his neck condition had gotten worse and he reported gnawing, heated sensations on the left side of the neck that are more frequent and harsher than in 2001. The Veteran reported missing work four to five times in the last month and stated that his neck problems affected his work. On examination, flexion was to 20 degrees, with pain at 15 degrees, extension to 25 degrees with pain at 20 degrees, lateral flexion to 15 degrees (left) and 30 degrees (right), and lateral rotation to 20 degrees (left) and 30 degrees (right). There was objective evidence of painful motion. The examiner reported less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. The Veteran had decreased sensation of the left shoulder; however, the examiner stated that this did not appear to be cervical radiculopathy. The examiner reported intervertebral disc syndrome with no incapacitating episodes over the past 12 months. The examiner also noted that although the Veteran had limitation with regard to his ability to work, the expectation is that the Veteran can work with reasonable accommodation. As noted above, the April 2011 VA examination report shows the Veteran complained of gnawing, throbbing neck pain with spasms, that were more frequent and protracted in nature. He complained of severe, weekly flare-ups lasting hours, which may result in a 3 to 5 degree decrease in left rotation. The Veteran had cervical spine had flexion to 25 degrees and extension to 18 degrees; however, he had additional limitation of motion with repetitive motion, with flexion to 16 degrees and extension to 15 degrees. The June 2013 VA examination report shows that the Veteran had flexion to 20 degrees, but that pain set in at 15 degrees. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the functional loss of the Veteran's cervical spine disability at the time of the April 2011 VA examination, that is with consideration of the additional loss of range of motion on repetitive testing, the objective pain on motion, and the Veteran's report of flare-ups, more nearly approximates the disability picture in the criteria for a 30 percent evaluation. 38 C.F.R. §§ 4.3, 4.7 (2012). To this extent, the claim is granted. An evaluation in excess of 30 percent is not warranted. Under the General Rating Formula, a 40 percent rating requires unfavorable ankylosis of the entire cervical spine. There is no evidence to show that the Veteran has unfavorable ankylosis of the entire cervical spine. There is no competent evidence to show that the Veteran has a diagnosed neurological disorder that is related to his service-connected disability. See General Rating Formula, Note 1. In this regard, the June 2013 VA examination report indicates that the Veteran does not have any neurological abnormalities related to his cervical spine condition. The report also shows that the Veteran was determined not to have cervical radiculopathy. With respect to possibility of entitlement to an increased evaluation under 38 C.F.R. §§ 4.40 and 4.45, the Board has also considered whether an increased rating could be assigned on the basis of functional loss due to the Veteran's subjective complaints of pain. DeLuca; VAGCOPPREC 9-98. In this case, the April 2011 VA examination report shows that the Veteran complained of gnawing, throbbing neck pain with spasms, that were more frequent and protracted in nature. He complained of severe, weekly flare-ups lasting hours, which may result in a 3 to 5 degree decrease in left rotation. The Veteran reported having daily moderate pain lasting hours, but he denied fatigue, decreased motion, stiffness, weakness, or spasm. The June 2013 VA examination report shows that the Veteran complained of "gnawing, heated sensations on the left side that were more frequent and harsh than in 2011. He complained that any movement of his body made his symptoms worse. He reported taking Motrin and Tylenol with codeine, and receiving trigger point injections. He stated that he worked for a government agency processing claims, and that he had missed work 4 to 5 times in the last month, and missed 10 to 15 days of work in the last 90 days, although some of this was due to knee and ankle problems. He complained of flare-ups caused by trying to concentrate, to do something physical, or "trying to move." There was additional limitation of motion upon repetitive use, specifically, less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. Strength was 4/5 at the wrists, and 5/5 at the fingers. Deep tendon reflexes in the upper extremities were 1+ or greater. A sensory examination was normal, except for the left shoulder (C5), which was decreased. An X-ray was noted to show small marginal osteophyte that was at least partially dislodged from the main vertebral body at C6, unchanged from February 2011. The impression was stable cervical spine with no new disease process. The June 2013 examiner concluded that the Veteran could work in an office with reasonable accommodations, although he could not handle physical work that involved lifting or carrying or the like. The diagnosis was DDD of the cervical spine. In summary, when the ranges of motion in the cervical spine are considered together with the evidence showing functional loss -- to include the findings pertaining to neurologic deficits, muscle strength, and the lack of evidence of muscle atrophy -- the Board finds that there is insufficient evidence of objective pain on motion, or any other functional loss, to warrant an evaluation in excess of 30 percent for the cervical spine. D. Conclusion Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluations in this case are not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected cervical spine disability are congruent with the disability picture represented by the disability ratings assigned herein. The criteria for the ratings assigned herein more than reasonably describe the Veteran's disability level and symptomatology. The Veteran is shown to have some pain and decreased motion in his cervical spine, with no history of surgery. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson, and Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to increased ratings for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal period, except as noted. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disabilities in issue, such that an increased rating is warranted, except as noted. The Board acknowledges that the Veteran is competent to testify as to symptoms associated with his disabilities which are non-medical in nature, however, he is not competent to testify as to the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). Finally, although the Veteran has submitted evidence of medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. In this regard, as noted in a September 2008 RO decision, the Veteran was requested to clarify whether or not he desired to file a claim that he was unemployable, however, there is no record of a response. He reports full-time employment as a clerk. See Report of VA examination, dated in April 2011. In addition, the June 2013 VA examiner determined that he was employable. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). To the extent that the claim has been denied, the evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 C.F.R. §§ 3.102, 4.3 (2013). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013). With regard to the initial claim for service connection, the notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2006. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In September 2007, a second letter was sent. However, and in any event, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess, 19 Vet. App. at 491, 493. The RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Board notes that while the Veteran indicated in a July 2013 letter that he was scheduled for new private physical therapy at the end of that same month, barring any problems since he was going without a referral from the VA, he has not since provided information as to whether he actually received treatment. Thus, under these circumstances, the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In addition, the Veteran has been afforded four examinations. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the Veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Prior to June 12, 2008, an initial evaluation in excess of 10 percent for service-connected cervical spine degenerative changes is denied. For the period from June 12, 2008 to April 11, 2011, an evaluation in excess of 20 percent for service-connected cervical spine degenerative changes is denied. As of April 12, 2011, an evaluation of 30 percent, and no more, for service-connected cervical spine degenerative changes is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ L. A. Rein Acting Veterans Law Judge, Board of Veterans' Appeals