Citation Nr: 1335646 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-32 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the cervical spine, prior to March 4, 2010. 2. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the cervical spine, from March 4, 2010. 3. Entitlement to an initial evaluation in excess of 10 percent for thoracolumbar spinal strain, prior to July 29, 2013. 4. Entitlement to an initial evaluation in excess of 20 percent for thoracolumbar spinal strain, from July 29, 2013. 5. Entitlement to an initial evaluation in excess of 20 percent for neurological impairment of the left upper extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1989 to October 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2007 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. This case was previously before the Board in June 2013 and remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the remand order. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2013 rating decision, the Appeals Management Center (AMC) granted higher evaluations for radiculopathy of the left upper extremity, thoracolumbar spinal strain and degenerative disc disease of the cervical spine. The Court has held that a "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). As the appellant has not been granted the maximum rating, the issues remain before the Board. FINDINGS OF FACT 1. Prior to March 4, 2010, the appellant's degenerative disc disease of the cervical spine was manifested by forward flexion of the cervical spine of greater than 30 degrees, a combined range of motion of the cervical spine of greater than 120 degrees, no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour and no incapacitating episodes. 2. From March 4, 2010, to July 29, 2013, the appellant's degenerative disc disease of the cervical spine was manifested by forward flexion of more than 15 degrees, no favorable ankylosis of the cervical spine, and no incapacitating episodes. 3. From July 29, 2013, the appellant's degenerative disc disease of the cervical spine was manifested by forward flexion of 30 degrees with pain beginning at 0 degrees and no ankylosis. 4. Prior to July 29, 2013, the appellant's thoracolumbar spinal strain was manifested by forward flexion of more than 60 degrees, a combined range of motion of greater than 120 degrees, and no muscle spasm, guarding, or localized tenderness severe enough to result in an abnormal gait or abnormal spinal contour. 5. From July 29, 2013, the appellant's thoracolumbar spinal strain was manifested by forward flexion of more than 30 degrees and no ankylosis of the thoracolumbar spine. 6. The appellant's left upper extremity radiculopathy is manifested by moderate incomplete paralysis of the radial nerve. CONCLUSIONS OF LAW 1. Prior to March 4, 2010, the criteria for an evaluation in excess of 10 percent for degenerative disc disease of the cervical spine, have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2013). 2. From March 4, 2010, to July 29, 2013, the criteria for an evaluation in excess of 20 percent for degenerative disc disease of the cervical spine, have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2013). 3. From July 29, 2013, the criteria for an evaluation of 30 percent, but no higher, for degenerative disc disease of the cervical spine, have been approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2013). 4. Prior to July 29, 2013, the criteria for an initial evaluation in excess of 10 percent for thoracolumbar spinal strain, have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). 5. From July 29, 2013, the criteria for an initial evaluation in excess of 20 percent for thoracolumbar spinal strain, have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2013). 6. During the period on appeal, criteria for an initial evaluation in excess of 20 percent for neurological impairment of the left upper extremity have not been met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.124a, Diagnostic Code 8514 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. In regard to the appellant's claim for a higher rating for degenerative disc disease of the cervical spine, appropriate notice was provided in a December 2006 letter, prior to initial adjudication of the claim. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Here the appellant is appealing the initial rating assignments as to her service-connected thoracolumbar spinal strain and neurological impairment of the left upper extremity. In this regard, because the December 2011 rating decision granted the veteran's claim of entitlement to service connection, such claim is now substantiated. Her filing of a notice of disagreement as to the initial rating assigned in the December 2011 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the appeal as to the initial rating assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2013). As a consequence, VA is only required to advise the appellant of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code (DC) for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disabilities at issue. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in October 2006, March 2010, October 2011 and July 2013. The examinations are adequate because they are based on thorough examinations, a description of the appellant's pertinent medical history, and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorders since she was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA treatment records and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. The July 2013 VA examination was completed in compliance with the June 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. Id. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). In regard to the appellant's claim for a higher rating for her cervical spine disability, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. III. Analysis Degenerative Disc Disease of the Cervical Spine Prior to March 4, 2010 The appellant's service-connected degenerative disc disease of the cervical spine is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013) for intervertebral disc syndrome (IVDS). The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). A 10 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months and a 40 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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. Id. at Note (1). In addition to rating intervertebral disc syndrome on the basis of incapacitating episodes, the Rating Schedule directs the Board to consider whether a higher evaluation is available under the General Rating Formula for Diseases and Injuries of the Spine (Spine Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2013). Under that formula, a 10 percent rating is assignable for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or the combined range of motion of cervical spine greater than 170 degrees but no 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 in height. A 20 percent rating is assignable 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 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. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less, or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assignable where there is unfavorable ankylosis of the entire cervical spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a (2013). During the pendency of this appeal, the RO increased the disability rating assigned to the appellant's degenerative disc disease of the cervical spine from 10 percent to 20 percent under Diagnostic Code 5243, effective March 4, 2010. The Board has considered whether the appellant is entitled to a higher disability rating under the assigned stages of this appeal. The Board has also considered whether additional staging is appropriate. The appellant's claim for an increased evaluation was received on August 15, 2006. As such, the rating period on appeal is August 15, 2005. 38 C.F.R. § 3.400(o)(2) (2013). The Board finds that the medical evidence of record reveals that the appellant has not had any physician prescribed bed rest having a total duration of at least two weeks over a 12 month period at any time during the appeal period. The March 2010 VA examination report reflects that the appellant reported that her condition had not resulted in any incapacitation in the past 12 months. Thus, a higher rating is not warranted under Diagnostic Code 5243. With respect to evaluating the appellant's claim under the General Spine Rating Formula, the Board finds that a higher rating is not warranted under the criteria prior to March 4, 2010. The October 2006 VA examination report indicates the appellant's cervical spine had flexion of 40 degrees with pain occurring at 40 degrees; extension of 35 degrees with pain occurring at 35 degrees; right and left lateral flexion of 35 degrees with pain occurring at 35 degrees; and right and left rotation of 60 degrees with pain occurring at 60 degrees. The combined range of motion of the cervical spine was 265 degrees. The joint function of the spine was not additional limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The October 2006 VA examination report indicated the appellant did not have evidence of muscle spasm or ankylosis of the spine. There was symmetry of spinal motion with normal curvatures of the spine. As the appellant did not have forward flexion of less than 30 degrees, the combined range of motion of the cervical spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, a higher rating is not warranted under the Spine Rating Formula. The Board has also considered whether the appellant is entitled to a higher rating due to functional impairment under the criteria of DeLuca, prior to March 4, 2010. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2013). At the October 2006 VA examination, the appellant stated that as a result of her degenerative disc disease, she had to turn her whole body while driving. She reported constant pain, but at the time of pain she could function without medication. She had stiffness when driving. On examination, the joint function of the spine was not additional limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The Board finds the appellant's functional impairment is not equivalent to 20 percent rating under the Spine Rating Formula. The appellant's limitation of motion of the cervical spine due to pain is already considered in the assigned 10 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim for a higher rating for degenerative disc disease of the cervical spine prior to March 4, 2010. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). From March 4, 2010 to July 29, 2013 From March 4, 2010 to July 29, 2013, the Board finds that a rating in excess of 20 percent is not warranted. The March 2010 VA examination report reflects that the appellant's cervical spine had flexion of 29 degrees with pain at 29 degrees; extension of 34 degrees with pain at 34 degrees, right lateral flexion of 34 degrees with pain at 34 degrees; left lateral flexion of 30 degrees with pain at 30 degrees; right rotation of 80 degrees with pain at 80 degrees and left rotation of 60 degrees with pain at 60 degrees. Following repetitive testing, the appellant's range of motion was the same. The March 2010 VA examination report indicated that there was no evidence of muscle spasm, guarding, weakness, loss of tone or atrophy of the limbs. There was no ankylosis of the cervical spine. There was symmetry of spinal motion with normal curves of the spine. At the October 2011 VA examination, the cervical spine had flexion of 40 degrees with pain at 40 degrees. The spine had extension of 45 degrees, right and left lateral flexion of 35 degrees, right rotation of 80 degrees and left rotation of 70 degrees. The appellant had pain at 40 degrees of flexion and 70 degrees of left rotation. Repetitive range of motion was possible with no loss of degrees of motion. There was no evidence of radiating pain on movement, muscle spasm, guarding, weakness, loss of tone or atrophy of the limbs. There was no ankylosis of the cervical spine. There was tenderness in the left neck. As the medical evidence from March 4, 2010 to July 29, 2013 reveals that the appellant has not had any physician prescribed bed rest at any time during the appeal period, the Board finds that a higher rating is not warranted under Diagnostic Code 5243. With respect to evaluating the Veteran's claim under the General Rating Formula for the Spine, the preponderance of the evidence shows that from March 4, 2010, to July 29, 2013, forward flexion of the cervical spine was not limited to 15 degrees or less, and there was not favorable ankylosis of the entire cervical spine. The March 2010 VA examination indicated the cervical spine flexion of 29 degrees with pain at 29 degrees and the October 2011 VA examination indicated the cervical spine had flexion of 40 degrees with pain at 40 degrees. There was no ankylosis of the cervical spine noted at either examination. There was no objective evidence of muscle spasm, guarding or localized tenderness. The evidence shows that the appellant does not have any postural abnormality or fixed deformity (ankylosis) or neurologic abnormalities related to the cervical spine, other than the service-connected neurological impairment of the left upper extremity. The appellant did not report having any other neurologic abnormalities related to her cervical spine. Consequently, the Board finds a rating in excess of 20 percent is not warranted under the General Rating Formula. Furthermore, the Board has considered whether the appellant had any additional loss of range of motion due to pain, weakness, fatigue, incoordination or instability to include on repetitive motion. The March 2010 VA examination report noted that the appellant did not have decreased range of motion of the cervical spine following repetitive use testing. The appellant reported that during flare-ups she experienced limitation of motion of the joint which was described as limited head turning. At the October 2011 VA examination, the appellant also reported that she had limitation of motion of the cervical spine during flare-ups. She stated that she could not stand for long periods and the symptoms affected her ability to do chores. On examination, joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Even with consideration of functional impairment, the appellant's symptoms are more consistent with a 20 percent rating for limited motion due to pain than a 30 percent rating. The evidence does not reflect the appellant's limitation of motion is equivalent to 15 degrees of the cervical spine or favorable ankylosis. Consequently, the Board finds that a higher rating is not warranted from March 4, 2010, to July 29, 2013, based on functional impairment. See Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2013). In sum, the Board finds that the appellant is not entitled to a disability rating in excess of 20 percent from March 4, 2010, to July 29, 2013, for degenerative disc disease of the cervical spine. From July 29, 2013 The Board finds that a higher evaluation of 30 percent is warranted for C4-7 degenerative disc disease, from July 29, 2013. The July 2013 VA examination report reflects that the appellant's cervical spine had forward flexion of 30 degrees with objective evidence of painful motion at 0 degrees. The spine had extension ending at 40 degrees with objective evidence of painful motion beginning at 35 degrees. The spine had right lateral flexion ending at 30 degrees with objective evidence of painful motion beginning at 30 degrees. The appellant had left lateral flexion of 20 degrees with objective evidence of painful motion beginning at 10 degrees. There was right lateral rotation of 60 degrees with objective evidence of painful motion beginning at 60 degrees and left lateral rotation of 40 degrees with objective evidence of painful motion beginning at 40 degrees. The combined range of motion of the cervical spine was 220 degrees. Following repetitive use testing, the appellant had forward flexion ending at 30 degrees, extension ending at 40 degrees, right lateral flexion ending at 30 degrees, left lateral flexion ending at 20 degrees, right lateral rotation ending at 60 degrees, and left lateral rotation ending at 40 degrees. The appellant did not have additional limitation of range of motion following repetitive-use testing. The appellant had guarding or muscle spasm of the cervical spine severe enough to result in abnormal spinal contour. As the appellant has not reported any periods of physician prescribed bed rest, the Board finds that a higher rating is not warranted under Diagnostic Code 5243. In regard to the General Rating Formula for Diseases and Injuries of the Spine, the July 2013 VA examination does not reflect that the appellant had forward flexion limited to 15 degrees or less or ankylosis. However, with consideration of DeLuca, the Board finds that a higher rating is warranted. At the July 2013 VA examination, the appellant had painful motion of the cervical spine beginning at 0 degrees. Thus, the appellant's entire forward flexion of the cervical spine was painful. The appellant consistently complained of pain during the period on appeal. Due to the pain at 0 degrees, the Board finds the appellant's symptoms are equivalent to forward flexion of the cervical spine of 15 degrees or less, which warrants a 30 percent rating under the General Rating Formula for the Spine. As the evidence does not demonstrate that the appellant had unfavorable ankylosis of the cervical spine or symptoms equivalent to unfavorable ankylosis, the Board finds that an evaluation in excess of 30 percent is not warranted. In sum, from July 29, 2013, the date of the VA examination showing pain on forward flexion beginning at 0 degrees, the Board finds that an evaluation of 30 percent, but no higher, is warranted for degenerative disc disease of the cervical spine. Thoracolumbar Spinal Strain The appellant's claim for service connection for thoracolumbar spine strain was granted effective August 16, 2006. As such, the rating period on appeal is from August 16, 2006. 38 C.F.R. § 3.400(o)(2) (2013). Prior to July 29, 2013 An April 2009 private treatment record reflects that the appellant reported back pain. The record notes that the appellant had good range of motion of her back and no point tenderness. The appellant's thoracolumbar spinal strain is evaluated under Diagnostic Code 5237, which is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. A 20 percent rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2); Plate V. The Board finds that the evidence is against a finding that the appellant is entitled to a rating in excess of 10 percent for thoracolumbar spinal strain, prior to July 29, 2013. The October 2011 VA examination report reflects that the thoracolumbar spine had flexion of 90 degrees, extension of 30 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, right rotation of 30 degrees and left rotation of 20 degrees. The VA examiner only noted that the appellant had pain at 20 degrees left rotation. Spinal contour was preserved, though there was tenderness. There was no guarding of movement. Muscle tone and musculature were normal. There was no atrophy present in the limbs. There was no ankylosis of the thoracolumbar spine. The evidence does not reflect that appellant had IVDS of the thoracolumbar spine or periods of any physician prescribed bed rest during the period on appeal. At the October 2011 VA examination, muscle spasm was absent. At the March 2013 hearing, the appellant reported having muscle spasms in her back. See March 2013 Board Hearing Transcript at p. 5. However, the evidence from prior to July 2013 does not reflect that the appellant had muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour. Under the General Rating Criteria, Note 1, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. At the October 2011 VA examination, the appellant did not report having any bowel or bladder problems in relation to her spine condition. The March 2010 VA examination report noted that examination of the thoracic spine revealed no sensory deficits of T1. Thus, the Board finds that separate rating is not warranted for associated objective neurologic abnormalities. The Board has also considered whether the appellant is entitled to a higher rating due to functional impairment. At the October 2011 VA examination, the appellant reported that she had stiffness, fatigue, spasms, decreased motion, paresthesia and numbness. The appellant reported that she did not experience weakness. On examination, repetitive range of motion was possible with no decrease in range of motion. She reported that she had pain three times per day for one hour. She stated that she can function with medication. During the flare-ups she experienced limitation of motion of the joint which was described as turning to the left. She had not received any treatment for her condition. The examiner noted that "The claimant reports that she did not experience any overall functional impairment from this condition." The appellant's reported symptoms are consistent with a 10 percent evaluation under the General Rating Criteria for the Spine. The evidence does not demonstrate that a higher rating is warranted for functional impairment. In conclusion, the Board finds that an evaluation in excess of 10 percent for thoracolumbar spinal strain, prior to July 29, 2013. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). From July 29, 2013 From July 29, 2013, the Board finds that the evidence is against a finding that the appellant is entitled to an evaluation in excess of 20 percent for thoracolumbar spinal strain. The evidence does not demonstrate that the appellant had forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The July 2013 VA examination report reflects that the thoracolumbar spine had forward flexion of 90 degrees or greater with objective evidence of painful motion beginning at 45 degrees. The appellant had extension of 30 degrees or greater with objective evidence of painful motion beginning at 30 degrees. The appellant had right and left lateral flexion of 30 degrees with no objective evidence of painful motion. The thoracolumbar spine had right and left lateral rotation of 30 degrees or greater with objective evidence of painful motion beginning at 30 degrees or greater. The Board finds that a higher rating is not warranted even with consideration of functional limitation. On examination in July 2013, the appellant was able to perform repetitive use testing with 3 repetitions. Post-test forward flexion ended at 90 degrees or greater, extension ended at 30 degrees or greater, right and left lateral flexion ended at 30 degrees or greater, and right and left lateral rotation ended at 30 degrees or greater. The appellant did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. The July 2013 VA examination report notes that the appellant had functional impairment due to the thoracombar spine of excess fatigability, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight bearing. The board finds that these symptoms are equivalent to the 20 percent evaluation assigned. The evidence does not demonstrate that the appellant had symptoms equivalent to forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Thus, a higher evaluation is not warranted with consideration of DeLuca. The appellant had moderate-severe tenderness and spasm localized around the left 1st through 4th costo-vertebral joints and there was palpable posterior subluxations of these ribs. The appellant had guarding or muscle spasm of the thoracolumbar spine that was severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyhphosis. A 20 percent rating already includes symptoms of muscle spasm severe enough to result in an abnormal spinal contour. The evidence does not demonstrate that the appellant had functional impairment equivalent to forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the thoracolumbar spine. The Board has considered whether the appellant is entitled to a separate rating for neurologic abnormalities. The July 2013 VA examiner noted that the appellant did not have radicular pain or any other signs or symptoms due to radiculopathy. The appellant did not have any neurologic abnormalities related to a thoracolumbar spine condition, such as bowel or bladder problems/pathologic reflexes. The appellant did not have IVDS of the thoracolumbar spine. The appellant did not use an assistive device. The appellant has not reported that she was prescribed bed rest by a physician. Consequently, the Board finds that the appellant is not entitled to a separate rating for neurologic abnormalities, radiculopathy, or under the criteria for IVDS. In sum, the Board finds that a preponderance of the evidence is against the appellant's claim for an evaluation in excess of 20 percent for thoracolumbar spinal strain, from July 29, 2013. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Left Upper Extremity Radiculopathy The appellant's left upper extremity radiculopathy is currently evaluated as 20 percent disabling under Diagnostic Code 8514. Diagnostic Code 8514 provides that mild incomplete paralysis of the musculospiral nerve (radial nerve) warrants a 20 percent rating. Moderate incomplete paralysis warrants a 30 percent rating in the major side and 20 percent in the minor side. Severe incomplete paralysis warrants a 50 percent rating in the major side and a 40 percent rating in the minor side. Complete paralysis; drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity, warrants a 70 percent rating in the major side and a 60 percent rating in the minor side. Service connection for left upper extremity radiculopathy was granted effective March 4, 2010. As such, the rating period on appeal is from March 4, 2010. 38 C.F.R. § 3.400(o)(2) (2013). The July 2013 VA examination report notes that the appellant's dominant hand is her right hand. Thus, her service-connected left upper extremity radiculopathy affects the minor side. The March 2010 VA examination report indicated that the appellant had a sensory deficit of the left lateral forearm, left thumb, left index finger and left lateral long finger. The appellant also had a sensory deficit of the left long finger, left distal forearm, left ulnar side of the ring finger and left little finger. The left upper extremity had biceps jerk of 3+ and triceps jerk of 2+. The upper extremities showed no signs of pathological reflexes. The examination revealed normal cutaneous reflexes. The VA examiner found the appellant had decreased sensation in the left upper extremity. The July 2013 VA examination report indicates that the appellant reported symptoms of numbness on the back of her left hand. She reported that she had almost no feeling on the back of her left hand. The examination report notes that the appellant had moderate symptoms of intermittent pain, paresthesias and/or dysesthesias and numbness in the left upper extremity. Her grip and pinch were 4/5 in the left hand. The appellant had decreased sensation in the left inner/outer forearm and left hand/fingers. The examiner noted she had decreased sensation over all left fingers and thumb except for normal sensation on the dorsum of the left middle finger. There was complete absence of sensation to monofilament test on the dorsum of her left hand. The VA examiner found the appellant had moderate incomplete paralysis of the radial nerve, mild incomplete paralysis of the median nerve, and mild incomplete paralysis of the ulnar nerve of the left side. The VA examiner noted that pressing in the left thoracic outlet caused local pain and transient pain and tingling in her left hand. The appellant could work, but repetitive physical labor or typing using her left upper extremity exacerbated her pain and radiculopathy. Based on the evidence of record, the Board finds that a preponderance of the evidence is against a finding that the appellant is entitled to an evaluation in excess of 20 percent for neurological impairment of the left upper extremity. The evidence demonstrates that the appellant had no more than moderate incomplete paralysis of the radial nerve due to her service-connected disability. Under Diagnostic Code 8514, an evaluation of 20 percent is warranted for moderate incomplete paralysis on the minor side. The July 2013 VA examiner specifically found the appellant had moderate intermittent pain, paresthesias and/or dysthesias and numbness of the left upper extremity. He also found that the appellant had moderate incomplete paralysis of the radial nerve. The evidence of record does not demonstrate severe incomplete paralysis. Consequently, the Board finds that a higher evaluation is not warranted under Diagnostic Code 8514. The Board has considered whether the appellant is entitled to a higher rating under another Diagnostic Code. The July 2013 VA examiner found the appellant had mild incomplete paralysis of the median and ulnar nerve. Under Diagnostic Codes 8515 and 8516, mild incomplete paralysis warrants a 10 percent rating. The evidence also does not indicate the appellant's neurological impairment of the left upper extremity causes limitation of motion of the left upper extremity warranting a separate or higher evaluation. The evidence also does not indicate the disability causes functional impairment warranting a higher evaluation. The appellant reported that she could work. Although she reported that repetitive physical labor or typing using her left upper extremity exacerbated her pain and radiculopathy, these symptoms are moderate and consistent with a 20 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2013). In sum, the Board finds that a preponderance of the evidence is against the appellant's claim for a higher evaluation for neurological impairment of the left upper extremity. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Other Considerations The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the appellant's disabilities with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology. Further, the appellant has not alleged that the schedular evaluation is inadequate. Therefore, the available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, 22 Vet.App. at 115. TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, TDIU consideration is not warranted. The appellant has not contended and the evidence does not indicate that the she is unemployable as a result of her service-connected disabilities. The evidence reflects that the appellant is working. ORDER Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the cervical spine, prior to March 4, 2010, is denied. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the cervical spine, from March 4, 2010 to July 29, 2013, is denied. Entitlement to an evaluation of 30 percent, but no higher, for degenerative disc disease of the cervical spine, from July 29, 2013, is granted. Entitlement to an initial evaluation in excess of 10 percent for thoracolumbar spinal strain, prior to July 29, 2013, is denied. Entitlement to an initial evaluation in excess of 20 percent for thoracolumbar spinal strain, from July 29, 2013, is denied. Entitlement to an initial evaluation in excess of 10 percent for neurological impairment of the left upper extremity is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs