Citation Nr: 1335593 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 92-22 957 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to a schedular rating in excess of 30 percent for degenerative joint disease (DJD) of the cervical spine, from September 23, 2002, forward. 2. Entitlement to a rating in excess of 40 percent for degenerative joint disease (DJD) of the cervical spine, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active military service from May 1974 to May 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a June 1991 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for DJD of the cervical spine, effective April 9, 1990. In October 1991, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. According to a June 1992 supplemental statement of the case (SSOC), a statement of the case (SOC) was issued in November 1991, although it could not be physically found in the record. Correspondence from the Veteran's representative (VA Form 1-646) dated in May 1992 was accepted as a substantive appeal, in lieu of a VA Form 9. Because this appeal emanated from the Veteran's disagreement with the initial rating assigned following the award of service connection, the Board has characterized the claim on appeal in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing claims for higher initial ratings from claims for higher ratings for already service-connected disabilities). In March 1994, the Board remanded the claim on appeal to the RO for additional development. Thereafter, the RO issued a February 1995 decision increasing the rating for DJD of the cervical spine from 10 to 30 percent, effective December 20, 1989 (the date of the claim for service connection). In a September 1995 SSOC, the RO continued the 30 percent rating and returned this matter to the Board for further appellate consideration. In November 2000, the Board remanded the claim to the RO to schedule the Veteran for a Board hearing at the RO (Travel Board hearing). In May 2002, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. In December 2008, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After accomplishing further action, the RO continued to deny a rating in excess of 30 rating (as reflected in a December 2009 SSOC), and returned the matter to the Board for further appellate consideration. In September 2010, the Board denied an initial rating in excess of 30 percent for DJD of the cervical spine for the period from December 20, 1989 through September 22, 2002, and remanded the matter of a rating in excess of 30 percent for DJD of the cervical spine from September 23, 2002, to the RO, via the AMC, for additional development. After accomplishing further action, the AMC continued to deny the claim (as reflected in a July 2011 supplemental SOC (SSOC)), and returned this matter to the Board for further consideration. The claim for higher rating for lumbar spine disability was again before the Board in March and September 2012; each time, it was remanded for further action. Ad discussed in more detail below, at this point, there has been substantial compliance with those remand directives, and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). An October 2013 review of the Veteran's folder in VA's paperless, electronic (Virtual VA) claims processing system does not reveal any additional documents pertinent to the present appeal. Pursuant to the decision set forth below, a 40 percent rating, is being granted for the Veteran's disability of the cervical spine from September 23, 2002. In 2013, evidence was presented for the record from the Veteran's supervisor, suggesting that his disability of the cervical spine was causing interference with the Veteran's employment-in essence, raising the issue of entitlement to a higher, extra-schedular rating. Hence, the Board had characterized the appeal as encompassing both schedular, and extra-schedular components, as reflected on the title page. The matter of a higher, extra-schedular rating is addressed in the Remand following the Order; this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. From September 23, 2002 forward, the Veteran's cervical spine disability has been manifested by severe intervertebral disc syndrome (IVDS), with recurring attacks, and only intermittent relief; but not by IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a 40 percent but no higher schedular rating for DJD of the cervical spine, from September 23, 2002 forward, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.71, 4.71a, Diagnostic Code (DC) 5293 (as in effect prior to September 23, 2002). 2. The criteria for a schedular rating in excess of 40 percent for DJD of the cervical spine, from September 23, 2002 forward, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 20013); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the RO's initial adjudication of the claim was in June 1991, several years before enactment of the VCAA. Post rating, a January 2009 letter provided notice as to what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The January 2009 letter also provided general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman, and specifically informed the Veteran to submit any evidence in his possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 in effect prior to May 30, 2008). Moreover, June 1992 and January 2009 SSOCs set forth the criteria for a higher rating for cervical spine disability in effect prior to September 23, 2002 (which suffices, in part, for Dingess/Hartman). During the pendency of this appeal, the applicable criteria for rating intervertebral disc syndrome changed, effective September 23, 2002, and the rating criteria for all disabilities of the spine changed effective September 26, 2003. See 67 Fed. Reg. 54345 (2002); 68 Fed. Reg. 51454 - 51458 (2003). In conjunction with such changes additional duty to assist letters were issued in November 2010 and June 2011. After issuance of the above-described notice, and opportunity for the Veteran to respond, July 2012 and May 2013 SSOCs reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the aforementioned notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The Board notes that the record until June 2011, the record included no letter specifically notifying the what the evidence must show to support a claim for a higher rating. However, the absence of such notice until that point is not shown to prejudice the Veteran, inasmuch as in this regard, the claims file reflects that the Veteran and his representative had actual knowledge of the information and evidence necessary to support his claim for a higher initial rating. Accordingly, the Board finds that the omission of a specific letter pertinent to the claim for higher rating prior to June 2011 is harmless. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the Veteran's VA treatment records, private medical records, and the reports of VA examination in May 2007, May 2011, April 2012, and February 2013. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Background In a decision issued in September 2010, the Board denied entitlement to an initial rating in excess of 30 percent for (DJD of the cervical spine, from December 20, 1989 through September 22, 2002. Only the matter of the Veteran's entitlement to a rating in excess of 30 percent for DJD of the cervical spine, from September 23, 2002, forward, remains for appellate consideration (which, as explained above and below, the Board has bifurcated to reflect schedular and extra-schedular components),. October to December 2002, January to February and June 2003 private treatment records reflect the Veteran's complaints of neck pain with radiation into the arms, following injuries to the neck occurring in November 2001 and March 2002. Examination showed weak left biceps and grip muscles and decreased left triceps and biceps reflex. Electroneurodiagnostic studies showed bilateral C7 and C8 radiculopathies. When seen by VA in October 2004, the Veteran denied having numbness or radiation of pain down to the legs, except when he sat in a low chair or on the toilet, at which times he described having numbness. He denied having bowel or bladder incontinence. In a statement dated in December 2004 the Veteran stated that he was given a cane and back brace to help him walk. An MRI study of May 2005 revealed marked worsening of spinal canal stenosis at the C3-4 and C5-6 levels since the last study of July 2002. A September 2005 clinical note reflects that the Veteran reported having increasingly severe pain in the neck and both arms. It was noted that he had been a painter for 20 years or more and now found it increasingly painful to extend his neck or bend his lumbar spine. The report indicated that the pain had required morphine use for the past 4 years. The VA physician opined that it was unwise for the Veteran to continue at his present occupation and stated that he could not do work which required prolonged standing, bending, lifting or sitting. A September 2005 radiology report revealed degenerative disc disease of C3 through C7, with no evidence of instability on flexion and extension lateral views, and vertebral body heights within normal limits. A VA examination was conducted in May 2007. The Veteran complained of neck pain radiating to right upper extremity, laterally. There was no reported history of urinary incontinence, urgency, or frequency, or of fecal incontinence. A history of fatigue, decreased motion, stiffness, weakness, spasms and pain was recorded. Severe daily flare-ups were noted. Objective examination of the cervical spine revealed no atrophy, guarding or weakness, but was positive for spasm, tenderness, and pain with motion. Spasms, guarding and tenderness were assessed as not severe enough to be responsible for abnormal gait or spinal contour. Other findings were positive for lumbar lordosis, but negative for kyphosis, listing, lumbar flattening, scoliosis, and reverse lordosis. Motor examination was 5/5 in all upper and lower extremities. Sensory examination was 2/2 in all upper and lower extremities, except in the right lower extremity where light touch was 1/2. There was no cervical spine ankylosis. Cervical spondylosis and disc herniation were diagnosed. It was noted that the Veteran had not been employed for 2 to 5 years, but was not retired, due to neck and low back problems. It was noted that the Veteran had experienced 3 incapacitating episodes during the past 12 months. A VA examination was conducted in May 2011. The Veteran's complaints included whole back pain with radiation to the right upper extremity, described as chronic and severe. It was reported that 4 to 5 episodes of incapacitating episodes of back pain had occurred during the past years, lasting for about 2 days per episode. It was noted that the Veteran was a painter which aggravated his pain. Increased pain and some additional limitation during flare ups was reported, which could not be specified without resort to speculation. Range of motion was from 0 to 35-45 degrees, with pain on extremes. Left and right lateral flexion and rotation was from 0 to 15 degrees, with pain. There was no evidence of ankylosis, Straightening of the lumbar lordosis was reported. Sensory examination was normal and motor examination was nearly normal at 4/5. Functional loss described as pain, weakness, and lack of endurance was reported. The examiner indicated that these factors did not cause additional limitation of motion with repetitive testing. DJD and degenerative disc disease of the cervical spine C2-3 through C6-7, with herniated nucleus pulposus at L6-7 and spinal stenosis was diagnosed. In the March 2012 remand, the Board observed that no physician had explicitly identified radiculopathy and/or other neurological impairment as (a) separately ratable manifestation(s) of cervical spine disability, or provided an assessment of the severity of any such manifestations(s), for purposes of evaluating the disability and observed that such information would also have a bearing on evaluating the cervical spine disability on the basis of incapacitating episodes. Accordingly, a VA examination was conducted in April 2012. Cervical spondylosis and cervical discopathy were diagnosed. Range of motion from 10 (extension) to 45 (flexion) degrees was recorded, with pain on extremes. Rotation was to 20 (right) to 30 (left) degrees, with pain on extremes. Lateral flexion was from 25 (right) to 20 (left) degrees, with pain on extremes. Repetitive testing could not be conducted. Functional impairment described as less movement than normal and pain on movement was recorded. There was no guarding or muscle spasms of the cervical spine, but localized tenderness and radicular pain were noted. Incapacitating episodes during the past 12 months occurring for at least a week, but less than 2 weeks, were noted. The report indicates that the Veteran was working as a painter, and had pain when he got home every day. A neurological examination of April 2012 revealed that the Veteran had peripheral neuropathy of the upper extremities which was related to his disability of the cervical spine. Service connection for radiculopathy of the right and left upper extremities, secondary to a service-connected disability of the cervical spine, was established in a June 2012 rating action. A May 2012 VA MRI study revealed straightening of the cervical spine with degenerative changes at multiple levels, central spinal stenosis and neural foraminal narrowing. In a January 2013 statement, the Veteran's fiancé described manifestations of the Veteran's cervical spine disability including pain and erectile dysfunction. Service connection was established for erectile dysfunction in a June 2007 rating action. Also submitted for the file was a January 2013 from the Veteran's supervisor at work, explaining that the Veteran's work performance and attendance had diminished, which was reported as secondary to wrist and/or neck problems. It was noted that the Veteran was employed as a painter. The Veteran also provided a statement attesting to his severe, chronic, neck pain. A VA examination was most recently conducted in February 2013. Daily constant pain was reported. Range of motion from 10 (extension) to 35 (flexion) degrees was recorded, with pain on extremes. Rotation was to 45 (right) to 45 (left) degrees, with pain on extremes. Lateral flexion was from 10 (right) to 10 (left) degrees, with pain on extremes. Repetitive testing revealed no further limitation of motion. Functional impairment described as less movement than normal, weakened movement, incoordination, disturbance of locomotion, and interference with sitting/standing. Symptoms of guarding and muscle spasms were reported as severe enough to result in abnormal gait and spinal contour. Incapacitating episodes during the past 12 months occurring for at least 2 weeks, but less than 4 weeks, were noted. The report indicated that the Veteran had been employed as a painter, but was no longer able to do that work. It was reported that he was on night duty as a night supervisor, inspecting areas which might need painting. Functional limitations were also described as an inability to drive, and needing assistance with activities of daily living. III. Analysis The Veteran seeks a rating in excess of 30 percent for his service-connected disability of the cervical spine from September 23, 2002, requesting particular attention to rating the disability as intervertebral disc syndrome (IVDS). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). During the pendency of this claim, the criteria for rating spine disabilities were twice revised. The Board will evaluate the claim under the criteria in the VA Schedule for Rating Disabilities in effect at the time of his filing and the current regulations in order to ascertain which version would accord him the highest rating. According to VAOPGCPREC 7- 2003 (Nov. 19, 2003), in Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the Federal Circuit overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that, when a statute or regulation changes while a claim is pending before VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. Accordingly, the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. Id. However, neither the aforementioned cases or General Counsel opinion prohibits the application of a prior regulation to the period on or after the effective date of a new regulation. Thus, the rule that a veteran is entitled to the most favorable of the versions of a regulation that was revised during his appeal allows application of the prior versions of the applicable diagnostic codes at 38 C.F.R. § 4.71a to the period on or after the effective dates of the new regulations. Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Thereafter, when VA revised the criteria for evaluating general diseases and injuries of the spine effective September 26, 2003, as discussed below, VA also reiterated the changes to Diagnostic Code 5293 (now reclassified as Diagnostic Code 5243) for intervertebral disc syndrome. These regulatory changes have been provided for the Veteran in this case. Turning to the provisions which could possibly provide higher ratings for the veteran's service-connected disability of the cervical spine, the Board will discuss the Veteran's spinal disability addressing the prior and current IVDS ratings. See 38 C.F.R. § 4.71a, DC 5293 (2002) and 38 C.F.R. § 4.71a, DC 5243 (2013). Higher ratings of 40 and 60 percent are available under each version. As applicable other rating criteria, former and current, will be discussed. The rating criteria that were in effect prior to September 23, 2002 , provided that pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief warrants a 60 percent rating. A 40 percent evaluation is to be assigned when the intervertebral disc syndrome is severe, when there are recurring attacks, with only intermittent relief. Diagnostic Code 5293, in effect prior to September 23, 2002. There is no question in this case that the Veteran's disability of the cervical spine has been severe since September 23, 2002. Since that time, Veteran has had constant, chronic pain, requiring Morphine and heavy pain medication for treatment. His attacks have been recurrent, causing him to lose time from work, with only intermittent relief. Radiculopathy has been shown, as have occasional symptoms of muscle spasms. The Board finds that, overall, there is support for the assignment of a 40 percent rating under former Diagnostic Code 5293; hence, to this extent, the claim for higher rating is being granted. However, no higher, schedular rating is assignable. Persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief warranting a 60 percent rating have not been shown. Specifically, muscle spasms have been occasionally reported during the appeal period, but not persistently (not noted in 2011 or 2012 VA examination reports). Absent ankle jerk has never been recorded. Accordingly, the overall disability is most consistent with the criteria used to support the assignment of a 40 percent rating. The applicable revisions to 38 C.F.R. § 4.71a, Diagnostic Code 5293, for rating intervertebral disc syndrome provide that preoperative or postoperative intervertebral disc syndrome is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Effective September 26, 2003, intervertebral disc syndrome was assigned a new diagnostic code number (5243), and the instruction with respect to the separate evaluation of neurologic and orthopedic manifestations was re-worded and moved to Note 1, following the General Rating Formula for Diseases and Injuries of the Spine, and the above-mentioned instruction was re-phrased to state that intervertebral disc syndrome (pre-operatively or post-operatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under section 4.25. With regard to the first method of evaluation (total duration of incapacitating episodes over the past 12 months), the new criteria provide that a 40 percent evaluation is warranted if intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12 month period; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). For purposes of evaluating IVDS, 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. The term "chronic orthopedic and neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so". 38 C.F.R. § 4.71a, Diagnostic Code 5243, , Note (1). Since September 23, 2002, incapacitating episodes during the past 12 months occurring for at least 2 weeks, but less than 4 weeks, at most, have been reported (2013 VA examination). Accordingly, this rating criteria provides no basis for the assignment of a rating in excess of the newly assigned 40 percent rating With regard to the second method of evaluation under the revised criteria, the General Rating Formula provides a unified schedule for orthopedic symptomatology, including limitation of motion, 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. To receive a rating of 40 percent, unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine must be shown. None of these manifestations have been shown at any time since September 23, 2002. The criteria for a 50 percent rating, requiring evidence of unfavorable ankylosis of the entire thoracolumbar spine have similarly not been shown; nor has unfavorable ankylosis of the entire spine, which is a required finding for the assignment of a 100 percent rating. Note 1 following the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Here, separate evaluations have already been assigned for erectile dysfunction, and peripheral neuropathy of the upper extremities. There do not appear to be any other associated objective neurologic abnormalities, not already separately rated, which have been associated with the service-connected disability of the cervical spine. Accordingly, further discussion of the criteria of the General Rating Formula is not necessary. Historically, the Veteran's disability was evaluated under Diagnostic Codes 5003-5290. Under DC 5003, degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. Under former DC 5290, a rating of 30 percent was assigned for a severe limitation of motion. As a point of reference, standard or normal ranges of cervical spine motion are as follows: forward flexion, from 0 to 45 degrees; extension, from 0 to 45 degrees; right and left lateral flexion, each, from 0 to 45 degrees; and right and left lateral rotation, each, from 0 to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. See 38 C.F.R. § 4.71a, Plate V (2013) The Board also notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Notably, pain, alone, does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In this case, prior to September 23, 2002, the Veteran was assigned a 30 percent rating under former DC 5290, which is the maximum rating assignable under that diagnostic code. While a higher, 40 percent rating may be assigned for unfavorable ankylosis of the cervical spine under former DC 5287, unfavorable ankylosis has not been shown for the appeal period at issue and a 40 percent evaluation has already been supported under different rating criteria. Moreover, in this case, the Board finds that, the 40 percent rating assigned properly compensates the Veteran for the extent of his pain on motion and functional loss as well as other factors set forth in §§ 4.40 and 4.45, and DeLuca. In reaching this determination, the Board notes that, while medical evidence indicates the Veteran has limitation of motion of the cervical spine primarily due to pain, the medical evidence does not support a finding the Veteran's pain is so disabling as to effectively result in ankylosis of the cervical spine, which, as indicated above, is required for the next higher rating. Moreover, the current rating criteria are largely based on findings of severe pain/IVDS, with recurring attacks, and only intermittent relief. For all the foregoing reasons, the Board finds that, considering the evidence in applicable criteria, the Board finds that the evidence as assessed from September 23, 2002 forward reflects that the Veteran's cervical spine disability meets the criteria for a higher, 40 percent rating under former DC 5293 for severe IVDS; hence, a 40 percent schedular rating is being granted from that date. The Board has applied the benefit-of-the-doubt doctrine in reaching the decision to grant the higher, 40 percent rating from September 23, 2002, but finds that the preponderance of the evidence is against assignment of any higher schedular rating since that date. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As final matters, the Board notes, as indicated above and below, that the matter of a higher, extra-schedular rating is being remanded for initial RO consideration,; as such, the Board defers consideration of that matter, at this juncture. Furthermore, the Board notes that currently, the Veteran is shown to be performing substantially gainful employment. Thus, a claim of entitlement to a total disability rating based upon individual unemployability (TDIU) due to the cervical spine disability has not been reasonably raised at this point. See generally Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER From September 23, 2002, forward, a 40 percent rating for degenerative joint disease of the cervical spine, is granted, subject to the legal authority governing the payment of VA compensation. REMAND As for the matter of a higher, extra-schedular rating, the Board notes that, in 2013, evidence was presented for the record from the Veteran's supervisor, suggesting that his disability of the cervical spine was causing interference with the Veteran's employment; in essence raising the issue of entitlement to an extra schedular rating. However, As noted in the Introduction, above, the RO has not recently considered whether the Veteran is entitled to a rating in excess of 40 percent for DJD of the cervical spine, on an extra-schedular basis. Indeed, more recent SSOCs issued in either July 2012 or May 2013 do not reflect such consideration of such matter. Accordingly, to avoid any prejudice to the Veteran, the RO should consider the matter in light of additional evidence received, in the first instance. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board further finds that additional development of the matter is appropriate. While this matter is on remand, the RO should undertake appropriate action to obtain and associate with the claims file any information regarding the Veteran's employment which may relate to the claim, such as the Veteran's own lay statements, as well as information from his employer, and records of leave use. Accordingly, the RO should afford the Veteran opportunity to provide information and/or evidence pertinent to the claim remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should explain what is needed to support a claim for higher rating for cervical spine disability on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, records of the type noted above. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The identified actions are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the matter remaining on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all pertinent, outstanding private records, such as information from his employer, and records of leave use. Explain to the Veteran what is needed to support a claim for a higher, extra-schedular rating for cervical spine disability. Also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the matter of the Veteran's entitlement to a higher, extra-schedular rating for his service-connected cervical spine disability, pursuant to 38 C.F.R. § 3.321. 4. If the benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs