Citation Nr: 1335747 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-04 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability; and if so, whether service connection for such disability is warranted. 2. Entitlement to service connection for myelopathy, to include as secondary to a neck disability. 3. Entitlement to service connection for radiculopathy of the bilateral upper extremities, to include as secondary to a neck disability. 4. Entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to service-connected residuals of a low back injury 5. Entitlement to an initial compensable disability rating prior to November 7, 2007; a disability rating in excess of 10 percent from November 7, 2007 to November 22, 2009; a disability rating in excess of 20 percent from November 23, 2009 to August 16, 2010; and a disability rating in excess of 40 percent from August 17, 2010; for a service-connected residuals of a low back injury 6. Entitlement to an effective date earlier than August 31, 2004, for the grant of service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to April 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2008, February 2009, and September 2010 rating decisions by the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). Although the RO may have implicitly reopened the Veteran's claim of service connection for a neck disability in the August 2008 rating decision, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. The issues of entitlement to service connection for a neck disability, myelopathy, and radiculopathy of the bilateral upper and lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an October 2006 rating decision, the Veteran was denied entitlement to service connection for a neck disability essentially on the basis that he was not shown to have a chronic disability at the time of separation and there was no evidence of continuity of treatment or symptomatology from separation to the present. 2. Evidence received since the October 2006 rating decision is new and material and the Veteran's claim of entitlement to service connection for a neck disability must be reopened. 3. From August 31, 2004 to November 22, 2009, the residuals of the Veteran's low back injury manifested in flexion limited to, at worst, 85 degrees and pain on motion; but without muscle spasm, guarding severe enough to cause abnormal gait or spinal contour, or incapacitating episodes lasting at least 2 weeks in duration requiring medically prescribed bedrest.. 4 From November 23, 2009 to August 16, 2010, the residuals of the Veteran's low back injury manifested in of flexion limited to, at worst, 40 degrees and pain on motion; but without favorable ankylosis of the entire thoracolumbar spine or incapacitating episodes lasting at least 4 weeks in duration requiring medically prescribed bedrest. 5. From August 17, 2010, the residuals of the Veteran's low back injury manifested in flexion limited to, at worst, 20 degrees and pain on motion; but without unfavorable ankylosis of thoracolumbar spine or incapacitating episodes lasting at least 6 weeks in duration requiring medically prescribed bedrest. 6. The Veteran's original claim for service connection for residuals of a low back injury was received on August 31, 2004. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied the Veteran's claim of entitlement to service connection for a neck disability is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2013). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for an initial 10 percent disability rating, for the period prior to November 23, 2009, for the residuals of the Veteran's low back injury have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5003, 5021, 5235-5243 (2013). 4. The criteria for a disability rating in excess of 20 percent, from November 23, 2009 to August 16, 2010, for the residuals of the Veteran's low back injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5003, 5021, 5235-5243 (2013). 5. The criteria for a disability rating in excess of 40 percent, from August 17, 2010, for the residuals of the Veteran's low back injury have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5003, 5021, 5235-5243 (2013). 6. The criteria for an effective date earlier than August 31, 2004, for service connection for residuals of a low back injury have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Legal Criteria The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Claim to Reopen Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Disability Ratings of the Spine Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Disabilities of the spine are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5242. Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, a 10 percent disability rating is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 20 percent disability rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 40 percent disability rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Earlier Effective Dates The effective date of an award of service connection based on a claim received more than one year after a claimant's discharge from service will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board notes that the Veteran did not separate from service for a physical disability. The Board concludes that 10 U.S.C.A. § 1218 is not applicable. See McGee v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008). A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). II. Analysis Claim to Reopen a Claim of Entitlement to Service connection for a Neck Disability The Veteran's original claim of entitlement to service connection for a neck disability was denied in an October 2006 rating decision, on the basis that there was no evidence of a chronic disability at the time of separation from active service or evidence of continuity of symptoms or treatment from separation to the present. The Veteran did not appeal, or submit new and material evidence within one year of that decision, and it therefore became final 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. In December 2007, the Veteran filed a claim to reopen his claim of entitlement to service connection for a neck disability; after adjudicating the issue on the merits, the RO continued the October 2006 denial. The Veteran appealed. The evidence of record at the time of the October 2006 rating decision included the Veteran's service treatment records (STRs) and VA treatment records. The Veteran's STRs showed that in June 1977 he was treated for complaints of pain in his right shoulder and on examination it was noted that he had decreased lateral rotation of his neck to the left. He was assessed with muscle spasm of the right trapezius and prescribed valium and heat. The STRs also showed that in September 1977 the Veteran was seen for complaints of stiffness and pain in his right posterior neck. It was noted that it was painful to look to his right and to look down, and he reported experiencing a similar episode in the past. He was assessed with muscle spasm and prescribed Darvon and a soft cervical collar. He was advised to return to the clinic for follow-up treatment if his symptoms did not improve; there is no evidence he sought further treatment. A May 1983 re-enlistment examination shows that the Veteran denied any history of swollen or painful joints and recurrent back pain; on clinical evaluation his head, face, neck, and scalp were noted to be abnormal in that he had mild pseudofolliculitis, but no neck disability was noted and his spine and other musculoskeletal system was normal. The VA treatment notes of record at the time of the October 2006 were silent for any complaints, treatment, or diagnosis related to a neck disability. Pertinent evidence received subsequent to the October 2006 rating decision includes private and VA treatment records that show the Veteran received some treatment for a neck disability in May 2006, but began receiving regular treatment in January 2009. Notably, the Veteran was seen by a private physician, Dr. H.C., in February 2009 for an examination of his cervical spine, at which time the Veteran reported that he had been experiencing neck pain since active service. After examination, Dr. H.C. gave the Veteran diagnoses of cervicalgia, brachial neuritis or radiculitis, and cervical spondylosis without myelopathy. Dr. H.C. provided an April 2009 letter in support of the Veteran's claim, in which he opined that the Veteran's current cervical spine disability was, in reasonable medical probability, related to the Veteran's active service. Dr. H.C. based his opinion on a review of the Veteran's service medical records, examination of the Veteran, and the history as reported by the Veteran. As the Veteran's claim of service connection for a neck disability was previously denied on the basis that there was no evidence of a chronic disability reported at the time of separation from active service, or continuity of symptoms or treatment for a neck disability from separation to the present, for evidence to be new and material, it must relate to that unestablished fact (i.e. must show that the Veteran had a chronic disability at the time of separation or establish a continuity of symptomatology or treatment since separation). As the evidence received since the October 2006 rating decision includes a February 2009 private medical examination which documents the Veterans reports that he had been experiencing neck pain since active service, as well as an April 2009 opinion from his private doctor, who opined that there was a reasonable medical probability that his current neck disability was related to his active service, there is new evidence that relates to an unestablished fact necessary to substantiate the claim of service connection for a neck disability. Additionally, the evidence raises a reasonable possibility of substantiating the claim. Consequently, particularly in light of the "low threshold" standard outlined by the Court in Shade, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received and that the claim of service connection for a neck disability must be reopened. After further development, outlined in the remand portion of this decision below, the underlying merits of the claim will be considered. Disability Rating of the Residuals of a Low Back Injury The Veteran contends that his service-connected residuals of a low back injury warrants an initial compensable disability rating, as well as higher disability ratings than the staged ratings currently assigned. The Board notes that the Veteran's back disability currently has been assigned an initial noncompensable disability rating, a 10 percent disability rating from November 7, 2007, a 20 percent disability rating from November 23, 2009, and a 40 percent disability rating from August 17, 2010. The Veteran was afforded a VA examination in November 2007. At that time he reported that he injured his back on active service while doing some heavy lifting and that he had been diagnosed with a recurrent back strain. He reported that in December 2004 he aggravated his prior back injury after lifting some copper pipes, and that he began to seek treatment. He reported that his symptoms are increased with bending and lifting, both of which are required in his job as a letter carrier with the post office. He reported that his back pain is aggravated by standing for 30 minutes, walking for a half mile, lifting more than 25 pounds, or driving for more than one hour. He denied having any radiating pain or associated incontinence. He reported that he uses Naproxen twice a day and Vicodin twice a month. On physical examination, the Veteran's gait was noted to be normal. Straight leg test was positive on the right side at 70 degrees, ending at 75 degrees, which was a loss of 15 degrees due to pain. Straight leg test was positive on the left side at 85 degrees, ending at 90 degrees, which was minimal loss of motion because of pain. The Veteran had extension to 25 degrees and flexion to 85 degrees. On repetitive testing, there was pain, but there was no additional range of motion loss, there was no spasm, no weakness, and no tenderness. There was no tenderness on palpation of the lumbar spine and no limp was noted. Sensation, vibratory stimulation, and fine touch of the feet were normal. The Veteran denied any incapacitating episodes within the last 12 months. The examiner diagnosed chronic lumbosacral sprain with history of degenerative disc disease (DDD) shown by MRI. The Veteran was afforded another VA examination in November 2009. At that time, the Veteran reported that his low back pain radiated across his buttocks and down both of his thighs. He reported that the only medication that adequately controlled his pain was hydrocodone with acetaminophen, which he took twice a day. he reported that he usually wore a back brace, but it was noted that he was not wearing it at the time of the examination. He reported that his pain was increased when bending forward and lifting, and that his maximum lifting from the floor was 25 to 30 pounds. He reported that he worked as a letter carrier with the post office and that he had missed an estimated seven weeks of work in the past 12 months due to his back disability. He denied any incapacitating flare-ups of back pain and he denied having been on physician-prescribed bedrest. He reported some weakness in both of his legs, particularly in his right leg. On physical examination, the Veteran's gait was noted to be normal. There was some tenderness at the midline of L5, as well as over both sciatic notches. Active range of motion was limited by pain. Range of motion measurements were as follows: flexion to 40 degrees;, extension to 20 degrees, lateral bending to 20 degrees, bilaterally, rotation to 30 degrees on the left, and 15 degrees on the right, on repetitive range of motion testing, extension was decreased to 0, but he was able to maintain his initial range of motion in other planes. There was no weakness, fatigability, or incoordination. Reflexes were normal and straight leg raises were negative to 90 degrees, bilaterally. Sensory exam was normal in both legs and feet. The examiner diagnosed degenerative joint disease (DJD) and DDD of the lumbar spine. The Veteran was afforded a VA peripheral nerve examination of the bilateral lower extremities in August 2010. At that time, the Veteran reported that he had shooting pain on a daily basis from his low back into his bilateral lower extremities. He reported that he wore a back brace on a daily basis, but that he used no other assistive devices. He reported that he was able to stand for more than 30 minutes and walk for a quarter mile, but that lifting or repetitive lifting, would precipitate, or aggravate, his back pain. He reported that over the past 12 months, he had missed approximately 10 weeks of work due to pain, and that when he had those painful episodes, he spent most of his time in bed. On physical examination, the Veteran was noted to walk slowly, but with a normal heel strike and toe push. His spine was normal in appearance, he had a normal thoracic kyphosis, there was symmetry to the musculature of the back and spine, and no scoliosis was present. The spine showed no evidence of injury, disuse, neuromusculature inhibition, or abnormal positioning. Range of motion measurements were as follows: flexion to 20 degrees; extension to 5 degrees; lateral flexion to 20 degrees, bilaterally; and lateral rotation to 20 degrees, bilaterally. On repetitive range of motion testing, there was no additional loss of range of motion, pain, fatigability, weakness, lack of endurance, or loss of coordination. The examiner reviewed a 2009 MRI of the lumbar spine, which showed mild DDD at several levels, and an electromyelogram (EMG) of the bilateral lower extremities from 2009, which showed an increase in exertional activity and moderately increased spontaneous activity, as well as additional findings regarding the lower extremity muscles. The Veteran was given a diagnosis of DDD and osteoarthritis of the lumbar spine. The examiner noted that there was no lumbar MRI evidence of nerve root irritation and that the it was more likely that the Veteran's complaints of radiating pain were related to his non-service connected cervical spine disability, as cervical MRI's of record showed spinal cord impingement at various levels. Of record are VA treatment records that show the Veteran receives intermittent treatment at the VAMC for his service-connected back disability. This treatment has included pain management, chiropractic treatment, and various radiographic imaging. There is no evidence in the VA treatment records that the Veteran's range of motion is further limited by his service-connected back disability than is reflected in the VA examination reports of record. Also of record are private treatment records that show the Veteran began receiving private care for his low back pain in 2006, after aggravating his disability at his work. These records do not include any official range of motion measurements, but numerous records from August 2006 show that the Veteran was being treated to specifically increase his range of motion. These records also show that for various periods of time, between 2006 and 2008, the Veteran's private physician wrote him doctor's notes to excuse him from work as a result of his back disability. These notes indicate that the Veteran was "incapacitated;" however, there is no indication, nor has the Veteran alleged, that the Veteran's private physician ever prescribed bedrest for his back disability during any of the periods that the Veteran was unable to work. Based on the evidence of record the Board finds that from August 31, 2004 to November 22, 2009, the Veteran is entitled to an initial disability rating of 10 percent for the residuals of his low back injury. In this regard, the Board notes that until his VA examination in November 2007, there are no range of motion measurements of record; however, his private treatment records indicate that he was suffering from decreased range of motion prior to that examination, as he was routinely prescribed exercises to increase his range of motion in 2006. On November 2007 VA examination, his flexion was noted to be limited to, at worst, 85 degrees. However, there is no indication that prior to November 23, 2009, the Veteran's back disability was manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Therefore, the Board finds that an initial 10 percent disability rating, but no higher, for the residuals of his low back injury is warranted from August 21, 2004 to November 22, 2009. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. The Board finds that from November 23, 2009, the date of the VA examination first showing objective evidence the Veteran's back disability had worsened, to August 16, 2010, a disability rating of 20 percent for the residuals of the Veteran's low back injury is warranted. In this regard, the Board notes that objective findings during this period show that the Veteran's flexion is limited to, at worst, 40 degrees. Additionally, there is no indication from the record that the Veteran's service-connected back disability was manifested by favorable ankylosis of the entire thoracolumbar spine at any time during this period. Therefore, the Board finds that a disability rating of 20 percent, but no higher, is warranted from November 23, 2009 to August 16, 2010. Id. From August 17, 2010, the date of the Veteran's most recent VA examination showing a worsening of his back disability, the Board finds that a disability rating of 40 percent is warranted for the residuals of the Veteran's low back injury. In this regard, the Board notes that on his August 17, 2010 VA examination, the Veteran's flexion was limited to, at worst, 20 degrees. However, there was no indication that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. Therefore, the Board finds that a disability rating of 40 percent, but no higher, is warranted for the residuals of the Veteran's low back disability from August 17, 2010. Id. The Board has considered the Veteran's complaints of pain on motion; as well as the findings of some additional limitation of extension with repetitive testing shown only on the November 2009 VA examination; however, there is no showing that the Veteran had additional limitation of flexion, fatigability, weakness, lack of endurance, or loss of coordination on repetitive testing at any of his VA examinations. Thus, considering all pertinent disability factors, to include the DeLuca factors discussed above, there is no appropriate basis for assigning schedular ratings in excess of those assigned herein for any of the time periods on appeal. Without consideration of the Veteran's complaints, there would be no basis for the current findings. Additionally, the Board has considered assigning the Veteran a disability rating under Diagnostic Code 5243, for degenerative disc disease (DDD) or intervertebral disc syndrome based on incapacitating episodes rather than limitation of motion. The Board notes Veteran has been diagnosed with intervertebral disc syndrome and there is evidence that he has missed significant amounts of work due to back pain, both in the form of doctors' notes and reports made at his VA examinations. However, there is no evidence that the Veteran's missed time from work was due to incapacitating episodes that required medical prescribed bedrest. In this regard, the Board notes that at his November 2007 and November 2009 VA examinations, the Veteran specifically denied suffering from any incapacitating episodes or having been placed on medically prescribed bed rest; at his August 2010 VA examination the Veteran reported that he had missed 10 weeks of work in the previous 12 months and that he had spent most of that time in bed, but he did not report that he was medically prescribed bed rest (by a doctor), nor is there evidence of such. Therefore, the Board finds that the residuals of the Veteran's low back injury are properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the residuals of the Veteran's low back injury are contemplated by the schedular criteria. There is no indication that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for his back disability. His description of his back disability, indicates that he has reported symptoms of pain, limitation of motion, and some stiffness; all of which are contemplated by the rating criteria currently assigned. The Board notes that the Veteran has asserted that he suffers from radiculopathy of the bilateral lower extremities as a result of his back disability; however, the medical evidence of record indicates that these symptoms are more likely associated with his current neck disability, and as such that issue is addressed in the remand portion below. The Board acknowledges that the Veteran has reported that his back disability has interfered with his employment, in that his symptoms have caused him to miss work frequently; however, there is no indication, nor has the Veteran asserted, that his back disability has caused him to be unemployable. In fact, the record shows that he is employed as a letter carrier with the post office. In sum, there is no indication that the average industrial impairment from the residuals of the Veteran's low back injury would be in excess of that contemplated by the ratings assigned herein. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Effective Date Claim The Veteran has contended that he is entitled to an effective date prior to August 31, 2004 for the grant of service connection for the residuals of his in-service low back injury. For the reasons that follow, the Board concludes that an earlier effective date is not warranted. The Veteran filed a claim for a low back injury in August 2004, which was date stamped as received by the Waco, Texas RO on August 31, 2004. This statement indicates that the Veteran's STR's would show he had received treatment for a low back injury while on active service. There is no indication from this statement that the Veteran had filed any previous claims for a low back injury. A review of the claims file shows that, prior to his August 31, 2004 claim for a low back injury, the Veteran had filed one previous claim for service connection in January 2004 for a bilateral hearing loss disability. There is no evidence in the claims file, prior to his August 31, 2004 claim, which show the Veteran intended to file a claim for service connection for his low back injury. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Further, while the Veteran has stated that his disability was present while in active service (which the Board has not reason to dispute), the Board notes that there is no provision in the law for awarding an earlier effective date based on the assertion that the disability existed before the Veteran filed the claim. The fact that VA has granted service connection for the residuals of the Veteran's low back injury many years after the Veteran's service or injury is irrelevant. An exception in increased-rating claims allows for an effective date earlier than the date of claim by up to one year, but this does not apply to claims for service connection. Ross v. Peake, 21 Vet. App. 528, 533 (2008). The record does not include any communication from the Veteran or a representative received prior to August 31, 2004, that may reasonably be construed as an indication he was seeking service connection for his in-service low back injury. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's earlier effective date claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Court has held that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. Kent at 9-10. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in July 2006, February 2008, and July 2010. These letters informed the Veteran of what evidence is required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. With regard to Kent notice, the Board notes that the above referenced letters did not provide the Veteran with notice in compliance with Kent in relation to his claim to reopen a claim of entitlement to service connection for a neck disability. However, the Veteran was provided with this required notice in a January 2010 statement of the case and the RO reajudicated this issue in a subsequent February 2012 statement of the case, further the Veteran's claim has been reopened herein. As such, the Board finds that any error in notice was not prejudicial to the Veteran. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, pertinent post treatment records, and he was afforded appropriate VA medical examinations. Significantly, neither the Veteran nor his representative has identified, and 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. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claims discussed above. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability. To this extent the appeal is granted. Entitlement to an initial 10 percent disability rating from August 14, 2004 to November 22, 2009 for the residuals of the Veteran's low back injury is warranted. To this extent the appeal is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a disability rating in excess of 20 percent from November 23, 2009 to August 16, 2010 and a disability rating in excess of 40 percent from August 17, 2010 is not warranted; to this extent the appeal is denied. Entitlement to an effective date earlier than August 31, 2004, for the grant of service connection for residuals of a low back injury is denied. REMAND The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided. The evidence of record indicates that the Veteran's current neck disability may be related to his active service. In this regard, the Board notes that the Veteran has reported to his treatment providers that he has had neck pain since active service. Further, the Veteran's private physician provided an April 2009 opinion, which stated that there was a reasonable medical probability that his neck disability was related to his active service. Based on this evidence, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his current neck disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the Veteran's remaining claims on appeal, the Board notes that he has claimed service connection for myelopathy and radiculopathy of the bilateral upper extremities as secondary to his neck disability, and as such, these issues are inextricably intertwined with the issue of entitlement to service connection for a neck disability. Additionally, the August 2010 VA examination report indicates that the Veteran's claimed radiculopathy of the bilateral lower extremities is more likely related to his neck disability, and not his low back disability as he had claimed, and therefore, the Board finds that this issue is also inextricably intertwined with the issue of entitlement to service connection for a neck disability. Therefore, these issues cannot be adjudicated at this time. Finally, the Board notes that the most recent treatment records associated with the claims file, in the Veteran's "Virtual VA" file, are dated June 2012 from the Dallas VAMC. The Board finds that current treatment records should be obtained before a decision is rendered with regard to these issues. Accordingly, the case is REMANDED for the following action: 1. The Board would like all workers compensation claims the Veteran has ever filed with the United States Postal Service, and the medical evidence associated with these claims. If he has never filed such a claim, a written statement from the Veteran to that effect would be helpful in expediting his case. 2. Obtain current VA treatment records from the Dallas VAMC, dated June 2012 to the present. 3. Then, the Veteran should be afforded a VA examination by an examiner with sufficient expertise to determine the nature and etiology of his current neck disability. The claims files must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran's current neck disability is etiologically related to his active service, to include any injury therein, or his service connected back disability. A complete rationale for any opinions expressed should be provided. The examiner is asked to specifically address the April 2009 nexus opinion provided by Dr. H.C., the Veteran's private physician. 4. The RO or the AMC should confirm that any medical opinions provided comport with this remand and undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should re-adjudicate the remaining claims on appeal. If the benefits sought remain denied, the RO/AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs