Citation Nr: 1336105 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-24 231A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for postoperative residuals of cervical foraminotomy of the left C4-5 through C6-7 discs, with left C5-6 discectomy and a history of cervical disc disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1965 to February 1973 and from November 1990 to June 1991. He also served in the United States National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In May 2008, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of that transcript has been associated with the file. This case was previously before the Board and was remanded in February 2009 and September 2011. The issues of entitlement to service connection for diabetes mellitus; bilateral carpal tunnel syndrome; a lumbar spine disability; an acquired psychiatric disability, to include posttraumatic stress disorder and depression; and, bilateral knee disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Veteran has alleged that he cannot work, in part, because of his service-connected cervical spine disability. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim of entitlement to a total disability rating based on individual unemployability has been raised. The matter 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. FINDING OF FACT The Veteran's postoperative residuals of cervical foraminotomy of the left C4-5 through C6-7 discs, with left C5-6 discectomy and a history of cervical disc disease is manifested by flexion greater than 15 degrees but not greater than 30 degrees with pain, but without muscle spasms, guarding, incapacitating episodes, ankylosis, or related neurologic manifestations. CONCLUSION OF LAW The criteria for the assignment of an initial rating in excess of 20 percent for postoperative residuals of cervical foraminotomy of the left C4-5 through C6-7 discs, with left C5-6 discectomy and a history of cervical disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5290, 5293 (2002 & 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant appeal. Here, the RO sent the Veteran letters in March 2001 and March 2005 that complied with § 5103 notice requirements. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, post service treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). VA has obtained the Veteran's service treatment records, VA treatment records, private treatment records, and lay statements. The Veteran was also provided VA examinations in connection with his claim. The examination reports are adequate for the purpose of deciding the claim on appeal. The examiners reviewed the Veteran's subjective and medical history, examined him, and described the disability in sufficient detail so that the Board's evaluation is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). All necessary development has been accomplished and the Board will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). In May 2008, prior to the issuance of Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Veteran was afforded a hearing before the undersigned VLJ during which he presented oral argument in support of his claim. It is acknowledged that in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Those requirements were substantially complied with. During the hearing, the VLJ asked specific questions directed at identifying whether the Veteran met the criteria to establish an increased rating for his service-connected cervical spine disability. While the VLJ did not specifically identify any pertinent evidence not currently associated with the claims file, the Veteran and his representative presented testimony with regard to his symptoms and filed a motion to leave the record open so that he could submit additional evidence to help substantiate his claim. That motion was granted. Accordingly, the Veteran is not shown to be prejudiced in this regard. In fact, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim and was presented with additional time to submit any evidence that may have been overlooked. As such, the Board finds that, consistent with Bryant, the VLJ substantially complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Finally, this case was remanded by the Board in February 2009 and September 2011. The remands directed the RO to afford the Veteran VA examinations and obtain non-VA and VA treatment records. As set forth above, those reports have been obtained and incorporated into the claims file. There has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order.). The duties to notify and assist have been fulfilled. II. Relevant Laws and Regulations Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of impairment, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran is appealing the initial disability rating assigned for his cervical spine disability. As such, the claim requires consideration of the entire time period involved and contemplation of staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. Id.; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion. Pain may result in functional loss, however, if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Mitchell, supra. Of note, the regulations for rating disabilities of the spine were twice revised during the pendency of this appeal. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. Amendments with a specified effective date without provision for retroactive application may not be applied prior to the effective date. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000; see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. In this case, either the old or revised rating criteria may apply, although the new rating criteria are only applicable since September 26, 2003. VAOPGCPREC 3-2000. Prior to September 26, 2003, Diagnostic Code 5290 provided a 30 percent rating if limitation of motion of the cervical spine was severe, a 20 percent rating if moderate, and a 10 percent rating if slight. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002). With regard to Diagnostic Code 5293, prior to September 23, 2002, the rating provision in pertinent part provided that moderate intervertebral disc disease (IVDS) with recurring attacks warranted a 20 percent evaluation. Severe IVDS with recurring attacks and intermittent relief warranted a 40 percent rating. Pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief warranted a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). From September 23, 2002 to September 25, 2003, Diagnostic Code 5293 was revised to provide that intervertebral disc syndrome (preoperatively or postoperatively) would be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopaedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Effective September 26, 2003, the rating criteria applicable to diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended. Under the revised criteria, the General Rating Formula for Disease and Injuries of the Spine were set forth under Diagnostic Codes 5235 to 5243. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. As previously noted intervertebral disc syndrome syndrome (preoperatively or postoperatively) would be evaluated based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2013). The Veteran's cervical spine disability is rated under Diagnostic Code 5237. In relevant part, this provision provides a 20 percent rating for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 30 percent rating is warranted for forward flexion of the cervical spine of 15 degrees or less or for favorable ankylosis of the entire cervical spine. A 40 percent evaluation is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237. Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. 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. (See also 38 C.F.R. § 4.71a, Plate V). 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, in the case of cervical spine disability, an unfavorable ankylosis is a condition in which the entire cervical 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. 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. For Diagnostic Code 5243, the rating requirements, substantively, remained the same from 2002 to the present. Incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent rating. Incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months warrants a 40 percent rating. Incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months warrants a 20 percent rating. For purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). III. Analysis For historical purposes, the RO received the Veteran's informal claim seeking service connection for a cervical spine disability on April 11, 2000. In July 2006, service connection for postoperative residuals of cervical foraminotomy of the left C4-5 through C6-7 discs, with left C5-6 discectomy and a history of cervical disc disease was granted and rated as 20 percent disabling, effective April 11, 2000. The 20 percent rating remains in effect. The Veteran asserts that his disability has increased in severity so as to warrant an increased rating. At VA examination in August 2000, the Veteran reportedly experienced pain described as a sharp, aching discomfort. Tenderness was not detected. Physical examination of the cervical spine revealed forward flexion to 21 degrees and 22 degrees after exercise. Extension was 38 degrees and 45 degrees after exercise. Lateral flexion was 42 degrees before and after exercise, without pain. Rotation was 45 degrees before exercise and 39 degrees after exercise with some mild tightening discomfort. X-ray results showed spondylosis. The diagnosis was cervical laminectomy of the right C5-C6 and a history of cervical disc disease. On VA examination in January 2008, the Veteran continued to complain of neck pain. He reportedly had constant neck pain, especially in the morning, which increased if he looked upward or rotated his head, but decreased after repositioning his head. On physical examination, forward flexion was 57 degrees and extension was 36 degrees. Right lateral motion was 14 degrees, left lateral motion was 16 degrees, right rotation was 37 degrees, and left rotation was 39 degrees. Pain, additional limitation after repetitive motion, muscle spasms, tenderness on palpation, or atrophy of the muscles or fasciculation was not found. Strength testing was symmetrical and normal. During the May 2008 hearing before the undersigned, the Veteran testified that he continued to experience pain and rated it as a three or four on a scale of one to 10. He added that sleeping at night bothered him and that he could not lie on his back. He also stated that he had decreased range of motion. Another VA examination was conducted in March 2009. On examination, the Veteran reiterated that he had constant pain localized to the lower posterior neck area, although the pain did not radiate. Movement of his head and neck or lifting more than 20 pounds increased the pain. Examination of the cervical spine showed forward flexion to 41 degrees, extension to 34 degrees, right lateral motion to 10 degrees, left lateral motion to 13 degrees, right rotation to 30 degrees, and left rotation to 35 degrees. After repetitive use, extension decreased to 25 degrees. Otherwise, objective findings remained the same without manifestations of increased pain, or incoordination, fatigue or weakness after repetitive motion. Although the examiner indicated that he could not report additional limitations to range of motion occurring during flare ups without resorting to speculation. A VA outpatient treatment reports dated from 2007 to 2011 show continued treatment for pain. The reports also note no obvious deformity or increased impairment of the neck. Of note, a March 2007 physical therapy report notes mobility on extension to be minimally to moderately limited without radicular symptoms. At VA examination in September 2011, the Veteran denied radicular symptoms such as pain radiating in his arms and hands. He stated that his neck pain was a constant two (on a scale of one to 10) and that he used medication to relieve his pain. During flare-ups, his pain increased to an eight or a nine (on a scale of one to 10). He indicated that if he drove a car for more than two hours, the pain would increase. Physical examination showed forward flexion to 20 degrees, extension to 35 degrees, right lateral flexion to 20 degrees, left lateral flexion to 10 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 30 degrees. Pain was found at each end point. After repetitive motion, flexion remained at 20 degrees with extension to 30 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25. Additionally, the examiner found additional functional loss, weakness with less movement than normal, and pain on movement after repetitive use. Localized tenderness without guarding or muscle spasms was noted as well. Intervertebral disc syndrome or periods of incapacitating episodes were not demonstrated. In March 2012, the examiner submitted an addendum to the September 2011 VA examination report. The examiner indicated that the Veteran had no ankylosis of the cervical spine. After reviewing the pertinent evidence of record, the Board finds that since service connection has been in effect, the currently assigned 20 percent rating for postoperative residuals of cervical foraminotomy of the left C4-5 through C6-7 discs, with left C5-6 diskectomy and a history of cervical disc disease is appropriate. The criteria for the assignment of a rating in excess of 20 percent are not met. The criteria for the assignment of a rating in excess of 20 percent are not met under Diagnostic Code 5290, in effect prior to September 23, 2003. The evidence demonstrates that the Veteran's limitation of motion of the cervical spine has been and remains no more than moderate. Objective findings on VA examinations reflect forward flexion to 21 degrees in August 2000; 57 degrees in January 2008; 41 degrees in March 2009; and 20 degrees in September 2011. Evidence of severe limitation of motion is not present. Accordingly, even when taking into account the objective evidence of pain and range of motion findings after repetitive use, a disability rating in excess of 20 percent is not warranted. The assignment of a rating in excess of 20 percent under the provisions of Diagnostic Code 5293, in effect prior to September 23, 2002, is not warranted either. As noted, a 40 percent rating is warranted for severe recurring attacks, with intermittent relief. While the Veteran has complained of pain at varying levels, evidence of severe recurring attacks with intermittent relief is not present. VA examination and outpatient treatment reports dated from 2008 through 2012 do not show that the Veteran experienced severe recurring attacks of pain or any other severe neurological impairment as a result of his cervical spine disability. Rather, the medical reports show that the Veteran obtained relief from pain with medication and at times with the repositioning of his neck. As such, the Veteran's disability picture does not more nearly approximate the criteria required for an increased rating in this regard. The rating criteria in effect since September 26, 2003 have also been considered. Even when considering the provisions set forth under Diagnostic Code 5237, the evidence fails to show that the Veteran's cervical spine disability picture more closely approximates the criteria for a rating in excess of 20 percent. Instead, the medical reports confirm that the Veteran's forward flexion of the cervical spine remains greater than 15 degrees but not greater than 30 degrees. X-ray findings also show scoliosis. See DC 5237. The evidence does not show forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine. Even when considering the Veteran's complaints of pain and decreased rating of motion after repetitive use, additional impairment so as to warrant the assignment of a higher rating is not present. Indeed, on March 2012 VA examination, the examiner found additional functional loss; however, such impairment is contemplated in the currently assigned 20 percent rating. That is, flexion remained to 20 degrees; not less than 15 degrees and without muscle spasms or guarding. Additionally, no evidence of ankylosis is present. The assignment of a rating in excess of 20 percent is not warranted even after consideration of pain, weakness and other symptoms described in DeLuca. Additionally, even when considering the specified mandates of Mitchell, no assignment of a higher rating at any time during the pendency of this appeal is warranted. In August 2000, the Veteran also experienced minor decreases in motion after exercise. Physical examination of the cervical spine revealed forward flexion to 21 degrees and 22 degrees after exercise; extension was 38 degrees and 45 degrees after exercise; lateral flexion was 42 degrees before and after exercise, without pain; and, rotation was 45 degrees before exercise and 39 degrees after exercise with some mild tightening discomfort. In January 2008, pain, additional limitation after repetitive motion, muscle spasms, tenderness on palpation, or atrophy of the muscles or fasciculation was not found. Strength testing was symmetrical and normal. In March 2009, forward flexion was to 41 degrees with extension to 34 degrees. After repetitive use, flexion remained at 20 degrees although extension decreased to 25 degrees. Otherwise, objective findings remained the same without manifestations of increased pain, or incoordination, fatigue or weakness after repetitive motion. Finally, in September 2011, although the Veteran experienced limited motion after repetition, the decrease was minimal. Even with pain, tenderness, spasms and guarding, after repetitive motion, extension was to 30 degrees, with right lateral flexion to 10 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25. The Board acknowledges that in 2009 the examiner indicated that he could not report additional impairment during a period of flare ups. However, the Board finds that the clinical data nonetheless shows that the Veteran's cervical spine disability has consistently shown no more than moderate impairment based on examination and treatment reports dated from 2000 through 2012. Thus, the assignment of an increased rating based on additional functional loss is not warranted. Additionally, the assignment of a higher rating under Diagnostic Code 5243 is not warranted. VA examination and outpatient treatment reports show no evidence of incapacitating episodes with required bed rest prescribed by a physician. In fact, in September 2011, the examiner found no indication of intervertebral disc syndrome or incapacitating episodes. It is acknowledged that the Veteran has a scar measuring three and a half by one-eighth of an inch wide on the mid and lower posterior midline aspect of the neck in a vertical orientation. However, the scar was described as without redness, tenderness, elevation, depression, soft tissue loss, adhesions, or joint instability. See VA examination reports dated from 2000 to 2011. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2008 & 2013). The assignment of a separate rating for residuals of a scar is also not warranted. The Board has also considered whether the assignment of separate ratings based on neurological symptoms attributable to the Veteran's service-connected cervical spine disability are warranted. A review of the pertinent clinical data as well as the Veteran's subjective complaints reveals that separate ratings in this regard are not appropriate. At the outset, it is acknowledged that the Veteran has complained of radiating pain from his neck into his upper extremities and that he is competent to provide evidence regarding radicular-like symptoms in the bilateral upper extremities. While the Veteran's complaints are credible in the sense that he experiences numbness and tingling of the thumb and fingers, they are of little or no probative value when weighed with other objective evidence of record. The probative and persuasive evidence of record does not show that the Veteran's cervical spine disorder is productive of neurological manifestations. Rather, the objective evidence shows that his neurological complaints are more properly attributable to his carpal tunnel syndrome and peripheral neuropathy. As such, the assignment of a separate rating is not warranted for any claimed neurological impairment. See 38 C.F.R. §§ 4.120, 4.123, 4.124, and 4.124a. VA examination reports show that in August 2000 the Veteran complained of decreased sensation of the right index and thumb and third fingers, and the examiner noted that the Veteran did not experience weakness to handgrip of the right arm or tricep. In January 2008 the Veteran indicated that he had a constant tingling sensation in his fingers on both hands from his elbows to his fingertips. He also reported that he had to move his arm often, if it was at rest, to resolve a sleep sensation. The examiner detected a decreased pinprick for dull discrimination in his fingertips. At the March 2009 VA examination, although the Veteran stated that the pain from his neck did not radiate to his fingers, he reported episodic tingling and numbness in both upper extremities from his mid-forearm to his fingers if his arm was at rest. Additionally, a March 2009 medical report noted that the Veteran had median neuropathy, bilaterally, left worse than right. The report also revealed that the Veteran suffered from ulnar neuropathy at the elbow, bilaterally. At the September 2011 VA examination the Veteran reported mild numbness at the top of his fingers. In spite of the Veteran's aforementioned complaints and the confirmed clinical findings, March 2009 needle electromyography results showed that there was no evidence of cervical radiculopathy or primary disease of the muscle in the upper extremities. Additionally, in 2011, the Veteran denied radicular symptoms such as pain radiating in his arms and hands. Physical and neurological examination confirmed the absence of radiculopathy as well. Objective examination revealed normal muscle strength testing for elbow flexion, elbow extension, wrist flexion, wrist extension, finger flexion and finger abduction, bilaterally. No muscle atrophy was found. Deep tendon reflexes were 2+ and sensory examination was normal for the shoulders, inner/outer forearms, hands, and fingers. The diagnoses were bilateral carpal tunnel syndrome, bilateral ulnar neuropathy at the elbows and diffuse spondylosis of the cervical spine. The examiner opined that the current neurological impairment of the Veteran's upper extremities was not originating from or caused by his service-connected cervical spine disability. Additionally, in a November 2011 VA addendum, the examiner added that the Veteran had suffered from cervical radiculopathy, but was treated surgically for the condition which had since resolved. It was noted that the Veteran's peripheral neuropathy was not related to his cervical disability. Based on the aforementioned, the evidence shows that the Veteran's neurological symptoms of the upper extremities, if any, are more properly attributable to his bilateral carpal tunnel syndrome and/or peripheral neuropathy. The persuasive medical evidence does not show radiculopathy of the cervical spine or any other neurological impairment of the cervical spine. As such, the assignment of a separate rating in this regard is not warranted. The Board has considered the Veteran's statements and testimony regarding the difficulties presented by his cervical spine disability. The objective medical findings however are of more probative value than the Veteran's subjective assertions. The medical reports show that the Veteran's subjective complaints were considered and physical examinations were conducted. Nonetheless, the criteria for the assignment of an initial rating in excess of 20 percent or the assignment of a separate rating for neurological impairment are not met. It is also noted that staged ratings are not appropriate in this case. Since service connection has been in effect, the Veteran's symptoms have remained no more than 20 percent disabling. The Veteran has not suffered from ankylosis of the spine, severe limitation of motion, incapacitating episodes or associated neurological impairment at any time since filing his claim. Finally, the Board has considered whether consideration of an extraschedular rating is warranted. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the applicable rating criteria adequately contemplate the manifestations of the Veteran's cervical spine disability, which include pain and limitation of motion. The evidence establishes that a rating of 20 percent and no higher is appropriate. Thus, the rating criteria are adequate and referral for consideration of extraschedular rating is not warranted. ORDER Entitlement to an initial evaluation in excess of 20 percent for postoperative residuals of cervical foraminotomy of the left C4-5 through C6-7 discs, with left C5-6 discectomy and a history of cervical disc disease is denied. REMAND On VA examination in August 2008, the Veteran noted that he was working on a part-time basis packaging coins, but during his September 2011 VA examination, he reported that his disability impacted his ability to work. The examiner noted that the Veteran worked as a helicopter mechanic. Because his job required him to look upwards, it would exacerbate his cervical spine disability. Additionally, in a written statement dated in July 2013, the Veteran's representative stated that the Veteran was not able to complete his employment as a technician with the National Guard due to his service-connected disability. The evidence reasonably raises the question of entitlement to a TDIU. Currently, the Veteran is service-connected for a cervical spine disability, rated as 20 percent disabling. Thus, the percentage requirements set forth in 38 C.F.R. § 4.16(a) are not met. But, even if a Veteran does not meet the required percentage standards, he still may receive a TDIU on an extra-schedular basis if he is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Thus, additional development and consideration in this regard is warranted. Accordingly, the case is REMANDED for the following action: 1. Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013) that includes an explanation as to the information or evidence needed to establish a claim of entitlement to a TDIU. 2. Advise the Veteran that he can submit additional evidence in support of his TDIU claim, such as lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his service-connected disability and the impact of this condition on his ability to work. 3. After completing any additional development deemed necessary, to include further development regarding the Veteran's employment history and obtaining any additional medical evidence or medical opinion, refer the matter to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of TDIU on an extra-schedular basis. 4. If the benefit is denied, issue an SSOC to the Veteran and his representative, and allow the required time period within which to respond. If in order, return the case to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs