Citation Nr: 1335845 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-19 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a greater evaluation than 20 percent for cervical spondylosis. 2. Entitlement to a compensable evaluation for neuropathy of the left upper extremity. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right leg disability. 4. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from February 1969 to December 1971 and served with Reserve components at various times after that. A period of inactive duty training on September 21, 1996, has become active military service by virtue of a disability incurred in the line-of-duty on that date. 38 C.F.R. § 3.6 (a). This matter arises to the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO in Pittsburgh, Pennsylvania, that in pertinent part continued a 20 percent rating for cervical spondylosis, continued a noncompensable rating for left upper extremity neuropathy, and denied compensation under 38 U.S.C.A. § 1151 for a right leg disability. In October 2010, the Board granted service connection for a right upper extremity disability and then remanded the three issues listed herein for more development. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability rating based on individual unemployability (hereinafter referred to as TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). A Social Security Administration (SSA) decision dated in January 2002 reflects that the Veteran has been deemed to be disabled from employment due to a primary diagnosis of degenerative joint disease of the cervical spine. This raises the issue of unemployability due to the disability for which an increased rating is sought. The Board has therefore added a TDIU claim to page 1. Further development is needed to properly adjudicate the TDIU claim. In VAOPGCPREC 6-96, VA's General Counsel held that when the issue of entitlement to an extra-schedular rating or a TDIU rating arises in connection with an appeal in an increased rating case, the Board is not precluded from issuing a final decision on the issue of an increased schedular rating and remanding the extra-schedular-rating or TDIU rating issue to the RO. Entitlement to TDIU and/or an extra-schedular rating is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the entire appeal period, cervical spondylosis with fusion of C2 through C6 has been manifested by significant limitation of motion with additional pain on motion that more nearly approximates favorable ankylosis of the entire cervical spine. 2. The right hand is the dominant hand. 3. For the entire appeal period, right upper extremity radiculopathy and left upper extremity radiculopathy have been manifested by bilateral motor and sensory deficits that more nearly approximate incomplete moderate paralysis of each upper extremity. 4. A September 12, 2002-dated VA compensation examination report clearly mentions the right leg symptoms that the Veteran later claimed arose after VA cervical fusion surgery of September 19, 2002. 5. The complained-of symptoms of right leg numbness and burning clearly existed prior to the VA surgery of September 19, 2002, and no additional disability as a result of the surgery is shown. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 30 percent rating for cervical spondylosis with fusion surgery are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, Plate V, § 4.71a, Diagnostic Code 5237 (2013). 2. For the entire appeal period, the criteria for a 30 percent schedular rating for right upper extremity radiculopathy are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8515, 8516 (2013). 3. For the entire appeal period, the criteria for a 20 percent schedular rating for left upper extremity radiculopathy are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Codes 8515, 8516 (2013). 4. The requirements for compensation under 38 U.S.C.A. § 1151 for a right leg disability are not met. 38 U.S.C.A. §§ 1310, 5107 (West 2002); §§ 1151, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by letters sent to the claimant in November 2004 and in December 2010. The latter-dated letter addressed all of the notice elements, but was not sent prior to the June 2005 initial unfavorable decision. The latter-dated letter, followed by re-adjudication of the claims, cured the timing defect created. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and re-adjudicating claim and notifying claimant of such re-adjudication in the statement of the case). VA's duty to assist in the development of the claims has also been met. The service treatment records (STRs) and all pertinent VA and private treatment records have been obtained and associated with the file. Social Security Administration (SSA) records have been obtained. Appropriate VA examinations and medical opinions have been obtained. See 38 C.F.R. § 3.159(c) (4). When VA provides an examination or medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical opinions obtained in this case are adequate, as they are based on correct facts, as set forth in medical records in the claims files. The medical experts provided a rationale for their opinions. Accordingly, VA's duty to assist with respect to obtaining VA examinations and opinions has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Increased Rating for Cervical Spondylosis Cervical spondylosis has been rated 20 percent throughout the appeal period under Diagnostic Code 5237. The history of the disability dates back to neck pains that began in 1990, while performing Reserve component service. A later head injury and an even-later cervical strain were also reported during Reserve component service. VA clinical reports reflect that the neck underwent two cervical spine fusion surgeries in 2002. Cervical vertebrae C2 through C6 have been fused by laminectomy procedures. Thus, partial ankylosis of the cervical spine exists. In November 2002, the RO granted service connection for cervical spondylosis and assigned a 20 percent rating under then-existing Diagnostic Code 5290. The Veteran did not appeal that decision. In July 2004, he requested an increased rating. An April 2005 VA compensation examination report reflects that the Veteran reported no relief of neck pain since the two surgeries. He reported neck stiffness; the examiner found no neck instability. He had not worked in the recent two years. Range of motion of the cervical spine was to 40 degrees of flexion with no pain, to only 5 degrees of extension with considerable pain, to 15 degrees of right and 10 degrees of left lateral bending with considerable pain, and to 30 degrees of rotation in each direction with pain. Repetitive motion increased the pain, but did not increase any weakness, lack of endurance, or incoordination. X-rays showed C3 through C5 fusion with plate and screws, foraminal narrowing from C4 to C6, and loss of normal curvature of the neck. In October 2010, the Board remanded the case for an examination. A February 2011 VA compensation examination report reflects that the cervical spine is subject to flare-ups of painful motion. Range of motion of the cervical spine was to 30 degrees of flexion, to 30 degrees of extension, to 50 degrees of right and left lateral bending, and to 50 degrees of rotation to the right and 40 degrees to the left. Repetitive motion caused a painful flare-up. The examiner added that the cervical spine disability would have decreased stamina and endurance. The diagnosis was cervical spine spondylosis, chronic. Recently received SSA records reflect that in January 2002, the Veteran was deemed disabled from employment due to a primary diagnosis of cervical spine degenerative joint disease and a secondary diagnosis of dysthymic disorder. In November 2002, the SSA revised their determination to include a primary diagnosis of discogenic and degenerative disorders of the entire spine. Under Diagnostic Code 5237, cervical strain may be rated based on limitation of motion or the rating may be based on duration of any incapacitating episodes of intervertebral disc syndrome. Intervertebral disc syndrome has not been specifically mentioned in this case. Also available is the procedure for combining, under 38 C.F.R. § 4.25, separate evaluations of the chronic orthopedic and neurologic manifestations. (For diagnostic codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine.......................................100 Unfavorable ankylosis of the entire thoracolumbar spine...........................................................................................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.....................................................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. .........................................30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.. ............................20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height ..................................................................10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): 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 Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. From these facts, it appears that during the appeal period cervical spondylosis has been manifested by limitation of motion that fulfills the criteria of a 20 percent rating, but no higher; however, with consideration of the DeLuca tenets and painful motion under 38 C.F.R. § 4.59, the Board must consider a higher schedular rating due to additional functional impairment caused by painful motion, including during flare-ups. The next higher rating available for the cervical spine is a 30 percent schedular rating, which may be assigned for forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. Because cervical spine fusion with reduced endurance and painful motion, including during flare-ups, is shown, the Board will grant an increased, 30 percent, schedular rating for cervical spondylosis, as this disability more nearly approximates the criteria of a 30 percent rating. The next higher, 40 percent, schedular criteria are not more nearly approximated because unfavorable ankylosis of the entire cervical spine, or other neck disability equivalent to such, is not more nearly approximated. After consideration of all the evidence of record, for the entire appeal period, a 30 percent schedular rating should be granted for cervical spondylosis. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings therefore is not necessary. Hart, 21 Vet. App. at 510. Left and Right Upper Extremity Radiculopathy Turning to separate ratings for radiculopathy, the upper extremity neurologic findings that are related to the service-connected cervical spondylosis appear to be bilateral. This suggests that each upper extremity should be rated in similar fashion; however, the RO has rated any left upper extremity radiculopathy noncompensable under Diagnostic Code 5299-5223 and has rated right upper extremity radiculopathy 10 percent under Diagnostic Code 8599-8515. For the right upper extremity, the RO has chosen a code that is appropriate for the median nerve even though an EMG study revealed that the upper extremity radiculopathy follows the ulnar nerve, bilaterally. The Board will consider ulnar nerve radiculopathy under Diagnostic Code 8516, as well as Diagnostic Code 8515 and Diagnostic Code 5223. For rating purposes, the right hand is the major hand or dominant hand. Below are portions of the rating guidelines found at 38 C.F.R. Part 4: Under Diagnostic Code 5223, favorable ankylosis of the ring and little fingers of either hand warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5223 (2013). [With the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and etc., referring to the appropriate bodily system of the schedule. With partial loss of one or more extremities from neurological lesions, rate by comparison with mild moderate, severe, or complete paralysis of peripheral nerves] 38 C.F.R. § 4.124a (2013). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2013). Neuralgia, cranial or peripheral, is usually characterzied by a dull and intermittent pain, of typical distribution, so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2013). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, when bilateral combine with application of the bilateral factor. 38 C.F.R. § 4.124a (2013). Under Diagnostic Code 8515, complete paralysis of the median nerve warrants a 70 percent rating for the major hand and 60 percent for the minor hand. Incomplete severe paralysis of the major hand warrants a 50 percent rating and a 40 percent rating for the minor hand. Incomplete moderate paralysis of the major hand warrants a 30 percent rating and a 20 percent rating for the minor hand. Incomplete mild paralysis of either hand warrants a 10 percent rating. 38 C.F.R. § 4.124(a), Diagnostic Code 8515 (2013). Complete paralysis of the median nerve results in the hand inclined to the ulnar side (away from the thumb), the index and middle fingers more extended than normally, considerable atrophy of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm, flexion of wrist weakened, pain with trophic disturbances. Complete paralysis of the ulnar nerve results in "Griffin Claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. Complete paralysis warrants a 60 percent rating for the major hand and 50 percent for the minor hand. 38 C.F.R. § 4.124(a), Diagnostic Code 8516. Incomplete severe paralysis of the ulnar nerve of the major hand warrants a 40 percent rating and 30 percent for the minor hand. Incomplete moderate paralysis of the major hand warrants a 30 percent rating and 20 percent for the minor hand. Incomplete mild paralysis of either hand warrants a 10 percent rating. 38 C.F.R. § 4.124(a), Diagnostic Code 8516 (2013). A September 2001 VA electromyography study had confirmed cervical spine radiculopathy with bilateral ulnar neuropathy at the wrists, mild, but involving both motor and sensory functions. An April 2005 VA compensation examination report mentions that the Veteran reported pain, tingling, and numbness of both hands with bilateral hand weakness. He reported that pain killers offered only partial relief and that he could not prevent the hands from dropping things as light as a spoon. He could not use hand tools or even turn a key in a lock or hold a cup. He emphasized that the numbness and tingling never abate. The April 2005 VA examiner reported that sensation, strength, and deep tendon reflexes were normal and equal in both upper extremities, but then contradicted this assessment several times. The examiner appeared to accept that the hands were painful on use. The examiner felt that bilateral hand pains could be a recurrence of cervical spine-related radiculopathy. In a January 2006 notice of disagreement (NOD), the Veteran mentioned loss of motion of his fingers. In October 2010, the Board granted secondary service connection for right upper extremity radiculopathy and remanded the case for an examination. In December 2010, VA's AMC assigned an initial 10 percent rating for right upper extremity radiculopathy effective from July 2004 under Diagnostic Code 8599-8515. Although the Veteran has not submitted an NOD with respect to the 10 percent rating for right upper extremity radiculopathy, because the rating criteria for the cervical spine requires the rater to consider all related neurological complications (unless the spine disability is rated on the basis of incapacitating episodes), the Board's jurisdiction over the right upper extremity rating is mandatory. According to a February 2011 VA neurology examination report, the Veteran reported continued achiness and decreased sensation in the right hand. The examiner reported, "It does seem that he is experiencing some paresthesia type of problem." The examiner mentioned that the Veteran did not work because of "several joint pains." The examiner attributed current right hand numbness to the ulnar nerve. Any left hand symptoms appeared to be mild. The examiner found normal range of motion of the right hand, fingers, shoulder, elbow, and wrist, but then specifically reported that right wrist range of motion was less than full. Strength was normal. The nails, skin, and pulses were normal. Sensation to light touch was diminished in the right hand and fingers. The diagnosis was "evidence of right wrist neuropathy." From the facts above, and resolving ambiguities found among the reports in favor of the Veteran, it is clear that there are neck-related motor deficits and neck-related sensory deficits in both wrists, hands, and fingers that have been attributed to service-connected cervical spine radiculopathy. Because both motor and sensory nerves are implicated, these deficits more nearly approximate "moderate" incomplete paralysis. From these facts and under Diagnostic Code 8516, the correct rating for mild incomplete paralysis of the right (dominant) upper extremity is 30 percent and the correct rating for the left upper extremity is 20 percent. Considering the rating criteria of Diagnostic Code 8515, the manifestations of the right and left upper extremity radiculopathy again warrant a 30 and a 20 percent rating for the right and left upper extremity, respectively. Considering Diagnostic Code 5223 as the RO has done, ankylosis of several fingers of each hand could warrant ratings greater than those discussed above. Although loss of motion of the fingers was reported by the Veteran, because ankylosis of fingers is not shown, Diagnostic Code 5223 does not benefit the Veteran. The criteria for schedular radiculopathy ratings greater than 30 percent and 20 percent are not more nearly approximated because incomplete severe paralysis of either upper extremity is not shown. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings therefore is not necessary. Hart, 21 Vet. App. at 510. After consideration of all the evidence of record, for the entire appeal period, a 30 percent schedular rating should be granted for right upper extremity radiculopathy and a 20 percent rating should be granted for left upper extremity radiculopathy. Extra-schedular Consideration The Board has considered whether the Veteran's disabilities on appeal present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule. The assigned schedular evaluations are therefore adequate, and referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 38 U.S.C.A. § 1151 Compensation In July 2004, the Veteran claimed that a right leg condition "(from the waist down)" was caused by "three surgeries performed at the VA Pittsburgh Healthcare System." In November 2004, according to a VA Form 119, Report of Contact, the Veteran clarified that he sought § 1151 compensation for loss of sensation in the right leg as a result of a September 2002 surgery. The RO then obtained two VA surgery reports dated in 2002. A May 2002 VA surgery report notes that a cervical discectomy and fusion with allograft [bone graft] and anterior cervical plate procedure was performed because of a long history of neck and arm pains. A September 12, 2002, VA orthopedic compensation examination report is relevant to the § 1151 claim for two reasons: (1) it was performed 7 days prior to the September 19th VA cervical laminectomy; and, (2) it clearly documents that the Veteran had already reported right lower extremity symptoms. The examiner reported, "...he gets radicular pain on the right side along the right lateral aspect of his leg." A September 2002 VA surgery report notes that the Veteran "had increasing symptomatology several weeks after his [prior] operation including increased muscle weakness and pain in his upper and lower extremities." A C2 to C6 laminectomy was performed. An April 2005 VA compensation examination report reflects that the Veteran reported right leg symptoms for which he sought secondary service connection. The report notes that in July 2001, the Veteran had denied any radiating pains to the lower extremities. Moreover, during a January 2005 neurosurgery visit, the Veteran reported right leg numbness, but no lower extremity pain and specifically reported that his right leg numbness had been present prior to the November 2004 lumbar spine laminectomy. During the April 2005 VA examination, the Veteran further elaborated on his right leg symptoms. He reported that the right leg felt hot, burning, and tingling, but not painful. He stated that these sensation had been present since the second neck surgery [September 2002] and he felt that the more recent low back laminectomy had not been successful in changing any of these right leg symptoms. He reported that numbness extended from the right hip to the toes and included the entire surface of the right leg. The April 2005 examination report sets forth that a March 2005 EMG study of the right lower extremity revealed no evidence of any neuropathy or radiculopathy. The examiner was unable to determine the cause of the Veteran's reported right leg symptoms without resorting to mere speculation. In October 2010, the Board remanded the claim for an examination and opinion addressing the elements of a § 1151 claim. The Veteran underwent VA examination in February 2011. The examiner noted the history of complaints of right leg numbness and burning, although the Veteran denied that this represented pain. The examiner found no right leg disorder, but further noted that the Veteran was scheduled for a neurology evaluation. A February 2011 VA neurology compensation examination report concludes that right hip and leg symptoms were not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or by an event not reasonably foreseeable. The rationale was that the reported right leg symptoms were shown prior to a May 2002 surgery and remained unchanged afterward. Under § 1151, a claimant must show an additional disability proximately due to VA hospital care, medical or surgical treatment, or VA examination. Then the claimant must show that the proximate cause of additional disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination. Alternatively, a claimant may show additional disability or death which was caused by VA hospital care, medical or surgical treatment or examination; and that the proximate cause of the additional disability was an event which was not reasonably foreseeable. 38 U.S.C.A. § 1151 (a) (1) (A) and (B) (West 2002 & Supp 2012); 38 C.F.R. § 3.361 (2013); VAOPGCPREC 40-97. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would reasonably be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's, or in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. 38 C.F.R. § 3.361 (d) (1) (i), (ii) (2013). According to 38 C.F.R. § 3.361 (d) (2) an event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. If it is shown that the additional disability was proximately due to VA hospitalization or medical treatment, the appellant must next show carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the hospital care, medical or surgical treatment, or examination; or, that the proximate cause of the additional disability was an event which was not reasonably foreseeable. In this case, only one medical opinion has been offered. VA's opining physician stated in February 2011, that it was not caused "...by an event not reasonably foreseeable." The Board finds the above-mentioned medical opinion persuasive, as it is based on accurate facts and is supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The opinion compellingly argues that right leg sensations and numbness were present prior to the September 2002 surgery. Because no additional disability after the September 2002 surgery is shown, lack of evidence of informed consent need not be addressed. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). § 1151 compensation for right lower extremity symptoms must therefore be denied. ORDER For the entire appeal period, a 30 percent schedular rating for cervical spondylosis is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, a 30 percent schedular rating for right upper extremity radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, a 20 percent schedular rating for left upper extremity radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits. Entitlement to compensation under 38 U.S.C.A. § 1151 for a right leg disability is denied. REMAND The record raises the issue of entitlement to TDIU. The TDIU claim has not been developed for Board review. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2013). With consideration of the grants herein, the schedular criteria for TDIU are not met. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Services, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should forward the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and obtain up-to-date relevant treatment reports. 2. After the above is completed, the AMC should arrange for a VA medical examination by an examiner qualified to address the Veteran's occupational impairment due to service-connected disabilities. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner should elicit a history of relevant symptoms from the Veteran. The examiner is asked to describe the effects of the service-connected disabilities upon the Veteran's employment. For example, the description may include an opinion on whether service-connected disabilities preclude standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, or performing other specific tasks. The examiner should address whether it is at least as likely as not that all service-connected disabilities (currently cervical spondylosis, right upper extremity radiculopathy, and left upper extremity radiculopathy, either singly or taken together, preclude securing or following a substantially gainful occupation. The report must include a rationale for all opinions and conclusions expressed. A rationale for any opinion should be given. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 3. The AMC or RO should then adjudicate the TDIU claim. If the benefit is not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may have adverse consequences on the claim. 38 C.F.R. § 3.655(b) (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs