Citation Nr: 1335880 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 08-11 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating for a cervical spine disability in excess of 10 percent from June 3, 1998, to August 15, 2007, and in excess of 20 percent as of August 16, 2007. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Lori Chism, Attorney ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) in the United States Army Reserves from January 1983 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO). These claims were remanded by the Board in June 2011 and September 2012 for additional development. In March 2013, the Veteran's previous representative filed a motion to withdraw as the Veteran's representative. In May 2013, the Board granted that motion and sent the Veteran a letter advising him that he had 30 days to appoint a new representative. The Veteran appointed the current representative. The Veteran submitted additional evidence directly to the Board and requested that it be considered in conjunction with his claim. FINDINGS OF FACT 1. From June 3, 1998, through August 15, 2007, the Veteran's cervical spine disability was manifested by complaints of pain; productive of no more than mild limitation of motion, with forward flexion of more than 40 degrees, and a combined range of motion of more than 170 degrees with no significant fatigue, weakness, lack of endurance, or incoordination on use and an absence of muscle spasm or guarding severe enough to result in an abnormal gait, abnormal spinal contour or abnormal kyphosis. 2. From August 16, 2007, the Veteran's cervical spine disability was manifested by complaints of pain; productive of no more than moderate limitation of motion, with forward flexion of more than 15 degrees, with no significant fatigue, weakness, lack of endurance, or incoordination on use and an absence of muscle spasm or guarding severe enough to result in an abnormal gait, abnormal spinal contour or abnormal kyphosis. 3. Service connection is currently in effect for degenerative changes of the cervical spine, rated 20 percent; a thoracolumbar spine disability, rated 10 percent; and a left shoulder disability, rated 10 percent. The combined disability rating was 30 percent from June 3, 1998, and 40 percent from August 16, 2007. 4. The most probative evidence shows that the Veteran's service-connected disabilities, standing alone, are not of such severity as to effectively preclude substantially gainful employment consistent with the Veteran's education and occupational experience; and an exceptional factor that takes the case outside the norm is not present. CONCLUSIONS OF LAW 1. From June 3, 1998 through August 15, 2007, the criteria for an initial rating in excess of 10 percent for a cervical spine disability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). 2. From August 16, 2007, the criteria for an initial rating in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). 3. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met during the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.340. 3.341, 4.16, 4.18, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claims, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in December 2006, March 2007, June 2008, and November 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claims. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the most recent supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims. The most recent VA examination of the neck was conducted in September 2011. The Veteran's former attorney submitted several statements requesting a new VA examination. However, she did not provide any medical statements demonstrating a worsening of the Veteran's symptoms. Rather, it was a request to ascertain "if" the disability has worsened. The Board finds that the most recent VA examination is adequate to rate the disability at issue and to adjudicate the current claims before it. Therefore, further remand is not necessary at this time. Notably, the Board observes that the June 2011 remand specifically stated that the Veteran should be provided with electromyograph (EMG) or nerve conduction velocity (NCV) studies. The Veteran was scheduled for EMG and magnetic resonance imaging (MRI) studies in conjunction with a November 2011 VA peripheral nerves examination. However the Veteran refused to complete those studies. The Board emphasizes that the duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board is satisfied that there was substantial compliance with its June 2011 remand directives and further remand is not warranted at this time. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Accordingly, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background Service personnel records, including the appellant's service separation form, show that during basic training, the Veteran was counseled about his attitude and lack of motivation and self-discipline. It was noted that he knew that he was a slow learner and he wanted out of service. The platoon sergeant recommended his separation from service for poor performance of duties and an inability to adapt to military standards. The platoon sergeant noted the appellant's refusal to learn and his desire to go home. On January 31, 1986, the appellant certified his acceptance of a separation from service under the United States Army's Trainee Discharge Program and that he did not desire a separation physical examination. His separation from service was accomplished on February 7, 1983. The service medical records show that on January 22, 1983, the Veteran complained of left shoulder pain and stiffness for four days secondary to trauma. The assessment was mild contusion of the left shoulder. On January 24, 1983, he complained of pain in his left shoulder for five days while doing physical training. The assessment was mild contusion of the left shoulder. Later that day, he was seen at a physical therapy service with complaints of pain in the left dorsal shoulder. The assessment was myofascitis of the left dorsal shoulder girdle. On January 26, 1983, he complained of pain in the left shoulder blade, upper back, lower neck and low back. He denied any recent trauma. The diagnostic impression was muscle strain. A March 1986 VA report of examination included x-rays of the cervical spine and left shoulder which were negative. The diagnosis was mild muscle strain of the cervical and lumbar spine and left shoulder. Private treatment records from the Jackson-Hinds Comprehensive Health Center, dated from 1983 to 1987 show that in July 1987, the Veteran complained of left-sided posterior shoulder pain and nuchal pain since 1986 when he began lifting heavy objects. Pertinent diagnoses included musculoskeletal pain. In September 1987, he complained of back pain secondary to lifting 50-pound sacks on his job. The impression was upper back pain. A November 1990 written statement from Paul D. VanLandingham, M.D., reported that the Veteran had complained of constant pain in his neck, upper back, and shoulders, which he believed to be a reaction to an immunization shot he received in service in 1983. The impression was chronic pain in the neck, upper back, and shoulders, apparently muscular, fibromyositis. A January 1991 statement from Dr. L.W. Dodson reported that he had seen the Veteran twice in May 1986 when he complained of neck and left shoulder pain. The diagnoses were pain in the thoracic spine and nerve root irritation. In numerous statements from the Veteran, including those presented at a personal hearing at the RO in January 1992, he maintained that his neck, back, and left shoulder conditions were a direct result of an immunization shot he had received in basic training and that he had upper body problems which had started in service. An August 1992 VA treatment record shows that the Veteran was seen for complaints of pain in the back and shoulders and stiffness of the neck. Pertinent diagnoses included muscle spasm. An office note from Roy M. Main, M.D., showed that he treated the Veteran from July to September 1987. He was to stay at bed rest for two weeks and take medication in September 1987. A January 1989 document from the Mississippi Employment Security Commission, shows that the Veteran had been seen for musculoskeletal strain and was advised to avoid heavy lifting. A written statement from a private physician from the Jackson-Hinds Comprehensive Health Center, indicated that he treated the Veteran in September 1992, and that he should be excused from work. A July 1987 written statement from Dr. Main indicated that he was seeing the Veteran for musculoskeletal pain related to heavy lifting. Magnetic resonance imaging (MRI) of the Veteran's cervical spine dated in September 1995, showed disc herniation at C4-C5 on the right side and at C5-C6 centrally and to the left. A September 1994 physician's work status report from William Grantham, M.D., indicated that the Veteran suffered from persistent cervical/thoracic strain. An April 1994 statement from W.T. Crowell, M.D., indicated that he treated the Veteran from 1987 to 1993 for lumbar and cervical strain. It was noted that the Veteran did not have that condition prior to 1986 by history. A June 1995 written statement from William C. Warner. M.D., indicated that he most recently treated the Veteran in March 1995 for cervical sprain and C4-C5 neuropathy. A June 1995 treatment record showed that the Veteran sought treatment at The University Hospital and Clinics Emergency Department for an unlisted problem. He was to follow up at the orthopedics clinic. A page from a Social Security Administration (SSA) decision indicated that the Veteran was disabled as of September 30, 1994, due to, among other causes, herniated nucleus pulposus at C4-C5 and C5-C6. A November 1996 statement from Dr. McGuire indicated that the Veteran had been unable to work since July 1993 due to shoulder and neck pain. An October 1997 statement from Dr. Williams indicated that the Veteran had C4-C6 disc degenerations as early as May 27, 1997. May 1997 prescription instructions indicated that the Veteran was prescribed a medication for muscle pain. A September 1997 treatment record from Mississippi Baptist Medical Center indicated that the Veteran was seen for neck and back pain. He denied radicular pain or any numbness or tingling or weakness in his arms or legs. The neck was supple with some posterior tenderness. He was able to place his chin on his chest. There was no indication of a pinched nerve. The assessment was acute exacerbation of neck pain. A November 1997 treatment record from Mississippi Baptist Medical Center indicated that the Veteran was seen for complaints that he strained his neck the prior week while changing a tire. The diagnosis was acute exacerbation of neck pain. A June 1998 examination report for disability determination services showed that the Veteran gave a 10-year history of neck and back pain. There were no deformities of the spine or extremities. Fine and gross manipulation was normal in both hands. Finger and thumb were normal in both hands. Range of motion of the cervical spine was forward flexion to 35 degrees; extension to 35 degrees; lateral flexion to the right and left to 35 degrees; and rotation to the right and left to 70 degrees. He ambulated without difficulty, was able to get on and off the table and chair without difficulty, and was able to dress and undress himself without assistance. He laid straight back on the table and rolled to his side and on his back without difficulty. The impression was cervical radiculopathy. A November 1998 written statement from Brian Williams, M.D., stated: I first saw [the Veteran] on 9/15/97 and have seen him a few times since then. . . The problem that I am addressing in this letter is a neck injury which causes him mild to moderate pain. . . he had an MRI of his cervical spine at St. Dominic's Memorial Hospital on 9/30/94, which showed disc herniation at C4-5 and C5-6 centrally and to the left. . . [The Veteran] states that his pain all began while he was in military service. He specifically brings up an incident of a time when he received an injection while in the military. On this same day, there was a time when he had to run and lift a large duffel bag and throw it over his head. He believes that this is when the pain started. I have attempted to obtain his military medical records, however, the personnel record center in St. Louis, Missouri informed me that his records were unavailable. In summary, [the Veteran] does have objective evidence of a lesion which can account for his disability and it is possible that this was obtained during military service. However, I cannot prove or disprove when the lesions occurred. A February 1999 Social Security Administration determination noted that the Veteran was disabled due to hypertension. Secondary diagnoses included disorders of the back (discogenic and degenerative). Treatment records from the University Family Medicine Associates, dated from March 1999 through January 2005 show treatment for complaints of neck pain. A March 1999 treatment record indicated that the Veteran was seen for complaints of neck pain. Clinical evaluation revealed that the neck was supple. The assessment was "C-spine disc degeneration." In March 2004, he reported that his neck pain was "not much better." In January 2005, he reported that physical therapy helped in part. An April 1999 written statement from Dr. Main, stated that the Veteran was treated at the Jackson Hinds Comprehensive Health Care Center for a shoulder injury in October 1987. Dr. Main further stated that the appellant originally injured his shoulder in the Army at Fort Dix, New Jersey. The doctor stated that was documented as occurring January 24, 1983. The doctor stated that injury caused him discomfort and pain during manual labor with result of loss of work. The doctor believed his health was directly related to that injury and the appellant stated he was still in some pain. An October 1999 treatment record from Andrea Prince, M.D., reported that the Veteran was seen for chronic neck pain that was treated with Naprelan and Norflex. Physical examination was unremarkable. The neck was supple and the upper extremity had normal strength and muscle tone. The assessment was herniated nucleus pulposus cervical. Similar findings were reported in a subsequent treatment notes dated in March 2000 and May 2001, with reports of left upper extremity radiculopathy. An MRI report of the cervical spine done on January 31, 2000, at St. Dominic-Jackson Memorial Hospital and showed cervical spondylosis from C3-4 through C6-7. A February 2000 treatment record from Andrea Prince, M.D., reported that the Veteran was seen with a history of degenerative joint disease of the cervical spine. The assessment was degenerative joint disease of the cervical spine with left extremity radiculopathy. A March 2005 MRI report of the cervical spine at St. Dominic-Jackson Memorial Hospital and showed stenotic changes at C5, C6 and C6, C7. Upon VA spine examination in August 2005, the Veteran reported neck pain that ranked 5/10 with flare-up pain at 10/10 once a week in frequency. He stated that increased physical activities provoked neck pain. Alignment of the cervical spine was normal. The paraspinous muscle along the cervical region was slightly increased in tone. Tenderness was noted at the low cervical regions and upper trapezius. Range of motion of the cervical spine was forward flexion from 0 degrees to 40 degrees; extension from 0 degrees to 40 degrees (active and passive); left lateral flexion from 0 degrees to 42 degrees; right lateral flexion from 0 degrees to 35 degrees; left lateral rotation from 0 degrees to 60 degrees; and right lateral rotation from 0degrees to 50 degrees. There was discomfort and pain noted at the tail end of movement. Upper extremity strength and range of motion were in the normal functional range and there was no sensory deficit in either upper extremity. The assessment was degenerative and hypertrophic changes of the cervical spine. In a December 2006 letter, Todd Perkins, M.D., of Lakeland Family Practice Center, reported that the Veteran had been seen on multiple occasions for neck and arm pain. Dr. Perkins stated that the Veteran should avoid heavy lifting. Upon VA examination in July 2007, the Veteran exhibited a normal gait and station. He made a "show of [an] attempt to heel/toe/tandem walk - can't take more than a step or two at a time, but does it repeatedly, normally, and without visible evidence of pain. He grimaced with virtually all testing." Motor strength was 5/5 on the right and left. Effort was "poor." There was normal tone, bulk, dexterity, and coordination. Sensory was intact to fine touch and position. Temperature and vibration were mildly diminished on the left. There was hypertrophic spurring and degenerative change of the cervical facets. The examiner stated that he did not believe that the Veteran's degenerative spine disease was related to his brief period of service. There were no neurologic deficits related to the thoracic, lumbar, or cervical spine. The Veteran had left hemisensory loss and increased reflexes most suggestive of lacunar cerebral infarction, which was unrelated to spine disease. It was noted that the Veteran refused needle examination and objective evidence of root involvement could not be assessed. He also refused MRI of the cervical spine and brain. The conclusion was subjective complaints without objective evidence of neurologic disease and that the Veteran's neurologic deficits would not preclude employment. Upon VA examination on August 16, 2007, clinical evaluation showed that the Veteran was well-nourished and well-developed. He exhibited normal movements when dressing and undressing. Range of motion of the cervical spine was forward flexion from 0 degrees to 20 degrees; extension from 0 degrees to 30 degrees; right and left lateral flexion from 0 degrees to 40 degrees; and right and left lateral rotation from 0 degrees to 6 degrees. He complained of pain at the end points of all motion and "sometimes he had a facial grimace." The examiner noted that "some people consider this objective evidence of pain. [He] did not." Repetitive motion did not change anything. Deep tendon reflexes were brisk and equally reactive in the upper extremities. There was no motor or sensory deficit in the upper extremities. X-rays showed degenerative arthrosis with anterior spurring and narrowing of the disc spaces throughout most of the cervical spine. The impression was degenerative arthrosis of the cervical spine. Upon VA examination in July 2008, the claims file was reviewed. It was noted that the Veteran had "subjective complaints of chronic pain in the neck and upper back that was constant and worsened with activity. There were no flare-ups because the pain was constant. He did not have an incapacitating episodes that required physician-prescribed bed rest in the past year. Clinical evaluation revealed a normal gait pattern. He did not use a cane or other assistive device. Range of motion of the cervical spine was 0 degrees to 45 degrees of right lateral rotation; 0 degrees to 40 degrees of left lateral rotation; flexion from 0 degrees to 25 degrees; extension from 0 degrees to 20 degrees; right lateral flexion from 0 degrees to 25 degrees; and left lateral flexion from 0 degrees to 20 degrees. There was subjective pain on all range of motion testing; no additional limitation of motion after repetitive motion; and subjective tenderness to palpation of the neck. There was no objective evidence of pain on motion, tenderness, or spasm. He was noted to be a "muscular individual" with motor findings of 4/5 strength in both upper extremities with "likely suboptimal effort." X-rays showed degenerative and hypertrophic changes. The assessment was degenerative changes of the cervical spine. The examiner stated that the Veteran was "independent in his activities of daily living." His service-connected disabilities did not "preclude some form of employment." Private medical records from University Physicians dated from February 2009 through May 2009 show that the Veteran was seen for complaints of neck and back pain, and hypertension. In an August 2009 private treatment record from Robert C. Forbes, it was noted that the Veteran was "unable to work" and that he was severely impaired in upper back, shoulders, and neck. On VA examination in December 2009, the Veteran reported a constant "throbbing" in his mid posterior neck that radiated down his left arm to his elbow with weakness, numbness and tingling involving the entire left arm. Flare-ups occurred "daily with unknown precipitating factors and decreased in two hours after resting and taking Naprosyn." Clinical evaluation revealed diffuse paracervical muscle tenderness. Forward flexion was 0 degrees to 45 degrees with "grimacing at the end of range which decreases to 0 to 20 degrees after repetition with continued grimacing at the end of range." Extension was 0 degrees to 45 degrees "with grimacing at the end of range which does not change after repetition." Lateral flexion to the left was 0 degrees to 40 degrees "with grimacing at the end of range which does not change after repetition." Lateral flexion to the right was 0 degrees to 30 degrees "with grimacing at the end of range which does not change after repetition." Right and left lateral rotation was from 0 degrees to 65 degrees, nonpainful, and did not change after repetition. Upper extremities had normal muscle bulk and were intact to sensation to pinprick. The diagnoses included degenerative arthritis and disc disease of the cervical spine. Additional functional loss during a flare-up could not be assessed without speculation. The physician concluded that the Veteran was "physically capable of light level work." His service-connected cervical, thoracic, and lumbar spine disabilities, and left shoulder disability, did " not render him unemployable." On VA cervical spine examination in September 2011, the claims file was reviewed. Range of motion studies showed forward flexion from 0 degrees to 40 degrees with "no objective evidence of painful motion," extension from 0 degrees to 20 degrees with pain at 20 degrees; right lateral flexion from 0 degrees to 25 degrees with pain at 25 degrees; left lateral flexion from 0 degrees to 25 degrees with pain at 25 degrees; right lateral rotation from 0 degrees to 60 degrees with pain at 60 degrees; and left lateral rotation from 0 degrees to 60 degrees with pain at 60 degrees. He was able to perform repetitive use testing and there was no additional limitation in range of motion following. There was functional impairment assessed as less movement than normal and pain on movement. There was no guarding or muscle spasm evidenced. His neck condition impacted his ability to lift greater than 20 pounds, but he had a valid driver's license and was independent in his activities of daily living. VA neurological assessment in November 2011 revealed that the Veteran did not have any motor or sensory deficits referable to the spine and no neurologic deficits that would prevent employment. It was noted that he had some mild incomplete left-sided sensory loss likely due to a lacunar infarct that was "unrelated to the spine (or shoulder)." Increased Initial Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The Board may only consider the specific factors enumerated in the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). The appeal of the Veteran's claims is based on the assignment of initial ratings following initial an award of service connection for a cervical spine disability. Therefore, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence used to decide whether an original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time, as has already been done in this case. Fenderson v. West, 12 Vet. App. 119 (1999). During the periods pertinent to this appeal, the rating criteria for disabilities of the spine were amended twice, effective September 23, 2002, and September 26, 2003 to institute a general rating formula for rating diseases and injuries of the spine, including vertebral fracture or dislocation under Diagnostic Code 5235, lumbosacral strain under Diagnostic Code 5237, spinal stenosis under Diagnostic Code 5238, degenerative arthritis of the spine under Diagnostic Code 5242, and intervertebral disc syndrome under Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect from September 23, 2002); 68 Fed. Reg. 51,454-51,458 (Aug. 27, 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect from September 26, 2003). Amended rating criteria can be applied only for periods on and after the effective date of the regulatory change. The Board can apply only the prior regulation to rate the Veteran's disability for periods preceding the effective date of the regulatory change. VAOPGCPREC 3-00 (2000), 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The RO addressed the Veteran's cervical spine claim under the old criteria in the Schedule in a February 2008 rating decision, a February 2008 statement of the case, and supplemental statements of the case date in May 2010, July 2010, December 2011 and November 2012. The RO addressed the Veteran's claim under the current regulations, in July 2006 and February 2008 rating decisions, a February 2008 statement of the case, and supplemental statements of the case dated in May 2010, July 2010, December 2011 and November 2012. Therefore, there is no prejudice to the Veteran for the Board to proceed with the adjudication of this appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection for residuals of a left shoulder injury with degenerative changes of the cervical spine was granted by a July 2006 rating decision and a 10 percent disability rating was assigned. In a February 2008 rating decision, a separate 10 percent rating was assigned for degenerative changes of the cervical spine, effective June 3, 1998, and a 20 percent rating was assigned effective August 16, 2007, under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242. In the selection of diagnostic code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that traumatic arthritis, under Diagnostic Code 5010, was the service-connected disability, and degenerative changes of the cervical spine, under Diagnostic Code 5242, was the residual condition. Under the criteria in effect prior to September 26, 2003, limitation of motion of the cervical spine was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5290. A 10 percent rating was warranted for slight limitation of motion of the cervical spine. A 20 percent rating was warranted for moderate limitation of motion of the cervical spine and a 30 percent rating was warranted for severe limitation of motion of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Under the General Rating Formula for Diseases or Injuries of the Spine (General Rating Formula), effective September 26, 2003, the diagnostic code criteria pertinent to spinal disabilities in general provide that forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height is rated 10 percent. A 20 percent rating is warranted when there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, 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. A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less, or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). The rater is instructed to rate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). 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. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (3) (2012). 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 (0 degrees) always represents favorable ankylosis. Each range of motion measurement is rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (2012). The rater is to separately rate 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. Each range of motion measurement is rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012). Throughout the rating period on appeal, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, including Note (1) (2012). For the purpose of rating disability from arthritis, multiple involvements of the cervical vertebrae are considered groups of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45(f) (2011). The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning a rating for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010. Rating personnel must consider functional loss and clearly explain the impact of pain on the disability. When the rating of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. § 4.40 and 38 C.F.R. §4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The normal range of motion of the cervical spine is extension and flexion to 45 degrees; lateral flexion to 45 degrees, bilaterally; and rotation to 80 degrees, bilaterally. 38 C.F.R. § 4.71, Plate V (2012). Total range of motion in all planes equals 340 degrees. Based on the evidence of record, the Board finds that the Veteran's cervical spine disability warrants no more than a 10 percent rating for the period from June 3, 1998, through August 15, 2007, or more than a 20 percent rating from August 16, 2007. The medical reports in the file for the period from June 3, 1998 through August 15, 2007, do not show more than slight limitation of motion of the cervical spine. For example, the June 1998 VA examination report show that the Veteran exhibited cervical spine forward flexion to 35 degrees and his overall motion in all planes was 280 degrees. Additionally, although the Veteran complained of pain, and his private treatment records prior to August 16, 2007, document significant complaints of pain, the Board observes that at the June 1998 examination, the Veteran was able to ambulate without difficulty, he was able to get on and off the table without difficulty, he dressed and undressed himself without difficulty, and he was able to roll on his side and back on the examining table without difficulty. There are numerous reports from VA providers that indicated that the Veteran made sub-optimal effort during the evaluations, and indicating that his facial grimaces were not truly indicative of the level of objective symptoms that were evidenced during the evaluations, such as in a July 2007 VA examination report and an August 2007 VA examination report. Similar findings were reported in subsequent VA examinations, including in August 2005, where forward flexion was demonstrated to 40 degrees and overall motion in all planes was 267 degrees. Although the clinical reports showed evidence of muscle spasm on occasion, there was no indication that the muscle spasm resulted in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Those findings were consistently negative in both VA and private treatment records. On VA examination on August 16, 2007, the Veteran's forward flexion was shown to be limited to 20 degrees and his overall motion in all planes was 142 degrees. Therefore, the criteria for a 20 percent rating were met from that date. However, the Board finds that the medical reports of record do not show more than moderate limitation of motion of the cervical spine at any time during the appeal period. For example, the clinical reports cited above do not show objective clinical evidence that the Veteran's forward flexion of the cervical spine is limited to 15 degrees or less or a diagnosis of ankylosis of the cervical spine. Lewis v. Derwinski, 3 Vet. App. 259 (1992). In fact, upon VA examinations in July 2008, December 2009, and September 2011, the Veteran's forward flexion of the cervical spine was to 25 degrees, to 45 degrees, and to 40 degrees. Moreover, there was no "objective evidence of pain on motion" during that movement and there was no reduction in motion after repetitive testing. There was no guarding or muscle spasm evidenced, and the Veteran ambulated with a normal gait. Therefore, a higher rating is not warranted for the Veteran's service-connected cervical spine disability due to more severe limitation of motion or ankylosis for any period from August 16, 2007. There is also no indication that the Veteran has been prescribed bed rest by a physician for his cervical spine disability as a result of incapacitating episodes at any time during the rating period on appeal. Thus, a rating in excess of 20 percent may be note assigned. A higher rating based on intervertebral disc syndrome with incapacitating episodes is also not warranted as they are not shown for a sufficient length of time to warrant a higher rating. The Board observes that the private medical records document that the Veteran was seen for complaints of neck pain. However, range of motion studies were typically not reported, and the clinical evaluation did not document the Veteran's efforts or credibility in reporting his symptoms. Therefore, the Board has found those reports to be less probative than the VA examination reports that were made expressly for the purpose of determining the severity of the Veteran's cervical spine disability. Notably, the Veteran has at times been diagnosed with cervical radiculopathy. However, he declined appropriate testing by VA to evaluate that symptom accurately. Moreover, there are repeated reports in the file that indicate that the Veteran did not have any neurologic deficits related to his thoracic, lumbar, or cervical spine, such as in a July 2007 VA examination report. Rather, his sensory losses were attributed to a lacunar cerebral infarction, which was not related to spine disease, and was not a service-connected disability. Consequently, based on the objective clinical evidence of record, the Board concludes that a rating in excess of 10 percent is not warranted for the Veteran's service-connected neck disability for the period from June 3, 1998, through August 15, 2007, because of limited forward flexion or findings compatible with moderate limitation of motion of the cervical spine; and a rating in excess of 20 percent is not warranted from August 16, 2007, due to limited forward flexion or findings compatible with severe limitation of motion of the cervical spine. In reaching its decision, the Board has considered the Veteran's statements regarding his pain level and functional impairment, treatise evidence, and the voluminous medical evidence in his file. The Board finds that the Veteran is competent to report that he has pain and to observe and report any functional limitations. Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465 (1994) (Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, the Board finds that the most probative clinical evidence is found in the numerous VA examination reports pertaining to the Veteran's cervical spine disability that provide objective assessments of the disability for the purposes of assigning a current rating in conjunction with the relevant rating criteria. The Board finds that the pain and functional impairment reported has been appropriately considered in assigning the current ratings consistent with the documented symptoms. To the extent that he may argue or suggest that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make such an assertion. The Board finds that the preponderance of the evidence is against the claim, and the claim for increased rating must be denied. Alemany v. Brown, 9 Vet. App. 518 (1996), Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claims for entitlement to initial ratings in excess of 10 percent from June 3, 1998 through August 15, 2007 and in excess of 20 percent from August 16, 2007 are denied. Finally, the Board has considered whether referral for extraschedular consideration is warranted. 38 C.F.R. § 3.321(b) (2012); Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected neck disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected cervical spine disability. The competent medical evidence of record shows that his cervical spine disability is primarily manifested by pain and limited motion, symptoms that are specifically contemplated by the rating criteria. Therefore, the Board finds that the effects of the Veteran's disability have been fully considered and referral for an extraschedular rating is unnecessary at this time. Furthermore, the most probative evidence in the VA examination reports does not show marked interference with employment or frequent hospitalization due to a neck disability. Therefore, the Board finds that referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b) (2012). Total Disability Rating Based on Individual Unemployability 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 totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). A total disability rating based on individual unemployability due to service-connected disability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b) (2012). The Veteran contends that he is unable to maintain substantially gainful employment due to his service-connected disabilities. Service connection is in effect for a cervical spine disability, rated 20 percent; a thoracolumbar spine disability, rated 10 percent; and a left shoulder disability, rated 10 percent. The combined disability rating was 30 percent from June 3, 1998, and 40 percent from August 16, 1997. Thus, he does not meet the schedular criteria listed in 38 C.F.R. § 4.16(a) at any time during the rating period on appeal. However, consideration of entitlement under 38 C.F.R. § 4.16(b) must be considered. Thus, the question then becomes whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment, or work which is more than marginal, and that permits the individual to earn a living wage consistent with his education and occupational experience. Moore v. Derwinski, 1 Vet. App. 356 (1991). For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant is unemployed, is employed only part-time, or has difficulty obtaining employment, is not enough. A rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record. Coburn v. Nicholson, 19 Vet. App. 427 (2006). Competent, credible lay evidence could be sufficient to establish an elemental fact necessary to support a finding of service connection. Jandreau v. Nicholson, 492 F. 3d 1372 (2007). As a fact finder, the Board is obligated to determine whether lay evidence is credible. The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465 (1994). In his claim, the Veteran noted that he has a high school education. Initially, the Board acknowledges that the Veteran has been determined to be disabled by the Social Security Administration (SSA). However, while a determination by the SSA regarding the Veteran's ability to work constitutes evidence that must be considered with respect to his total disability rating based on individual unemployability due to service-connected disability, the SSA's determination is neither dispositive nor binding on VA since the agencies have different disability criteria. Collier v. Derwinski, 1 Vet. App. 413 (1991). The Board finds that the most probative evidence of record is found in the July 2007, July 2008, December 2009 and September 2011 VA examination reports, and does not establish that the Veteran is precluded from substantially gainful employment, consistent with his education and occupational experience, as a result of his service-connected disabilities. Notably, the examiners at all four of VA examinations concluded that the Veteran's service-connected disabilities did not prevent him from performing "light level work," or some type of employment. He was noted to be fully functioning with his activities of daily living, his physique was noted to be muscular and well-built, and he had a valid driver's license. He was observed to have a normal gait, and was able to move appropriately, get dressed and undressed without difficulty, and did not use any assistive devices. Notably, the private medical statements supporting the Veteran's assertions of unemployability were not based on a full review of the file, did not address the Veteran's history of exaggerating symptoms, and did not delineate the neurological symptoms that have been linked to a lacunar cerebral infarction, a non-service connected disability. Therefore, the Board has accorded these statements limited probative value. In view of the foregoing, to the extent that his service-connected disabilities cause occupational impairment, the Board finds that the Veteran is appropriately compensated by the current combined rating of 40 percent; and his situation does not present such an exceptional or unusual disability picture as to warrant referral for assignment of a total disability rating based on individual unemployability due to service-connected disability pursuant to 38 C.F.R. § 4.16(b). The Board is aware of the Veteran's contentions that he cannot work due to his service-connected disabilities. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a claim for VA benefits. However, the Board finds that the most probative, competent clinical evidence of record that shows that the Veteran's service-connected disabilities do not prevent him from performing sedentary employment, outweigh his assertions, particularly in light of the fact that his credibility has been called into question during numerous VA medical evaluations. Cartright v. Derwinski, 2 Vet. App. 24 (1991). Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a total disability rating based on individual unemployability due to service-connected disabilities, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 10 percent for a cervical spine disability from June 3, 1998, through August 15, 2007, is denied. An initial rating in excess of 20 percent for a cervical spine disability from August 16, 2007, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs