Citation Nr: 1336129 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-06 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to a rating in excess of 20 percent for posttraumatic degenerative disc disease and degenerative arthritis of the lumbar spine. 2. Entitlement to a rating in excess of 10 percent for posttraumatic degenerative disc disease and degenerative arthritis of the cervical spine, prior to October 22, 2008. 3. Entitlement to a rating in excess of 20 percent for posttraumatic degenerative disc disease and degenerative arthritis of the cervical spine, since October 22, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1985. These matters come before the Board of Veterans' Appeals (BVA or Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Anchorage, Alaska. The Veteran testified before the undersigned Veteran's Law Judge in June 2009. A copy of the transcript is of record. A January 2003 rating decision initially granted service connection for the Veteran's lumbar and cervical spine disabilities. VA medical records dated within one year of the rating decision were subsequently associated with the claims file. A June 2003 treatment record reflects reports by the Veteran of an intermittent exacerbation in back pain. Nevertheless, the Veteran continued to deny neurological symptomatology. A September 2003 VA treatment record reflected continuing neck and back problems. Although new evidence was submitted within one year of the January 2003 rating decision, it did not provide material evidence demonstrating an increased rating was warranted for the Veteran's service-connected lumbar or cervical spine disabilities. As the Veteran did not appeal the January 2003 rating decision, it became final. Buie v. Shinseki, 24 Vet. App. 242 (2010). The Board finds that the May 2007 rating decision is on appeal. In January 2010 and June 2012, the Board, remanded the issues presently on appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development. Following this development, the claims were most recently readjudicated by the RO/AMC in a December 2012 supplemental statement of the case. The case has been returned to the Board and the Appellant now continues his appeal. The Board is satisfied there was substantial compliance with the Remand. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's posttraumatic degenerative disc disease and degenerative arthritis of the lumbar spine, has been manifested by subjective complaints of pain, the objective findings include forward flexion greater than 30 degrees, even including pain; no incapacitating episodes requiring hospitalization or bedrest as prescribed by a physician for at least 4 weeks but less than 6 weeks, or ankylosis was shown; nor are neurological symptoms sufficient to warrant a separate rating demonstrated. 2. Prior to October 22, 2008, the Veteran cervical spine disability reflected muscle spasm resulting in abnormal gait. 3. Throughout the rating period on appeal, the Veteran's cervical spine disability has been manifested by subjective complaints of pain; objective findings include range of motion greater than 15 degrees, even including pain, no incapacitating episodes requiring hospitalization or bedrest as prescribed by a physician for at least 4 weeks but less than 6 weeks, or ankylosis was shown; nor are neurological symptoms sufficient to warrant a separate rating demonstrated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for posttraumatic degenerative disc disease and degenerative arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5010-5243 (2013). 2. Prior to October 22, 2008, the criteria for a 20 percent rating, but no higher, for posttraumatic degenerative disc disease and degenerative arthritis of the cervical spine had been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5010-5243 (2013). 3. Since October 22, 2008, the criteria for a rating in excess of 20 percent for posttraumatic degenerative disc disease and degenerative arthritis of the cervical spine have not been met.38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5010-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify Before addressing the merits of the issues on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. With respect to the Dingess requirements, in the same February 2007 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist a Veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's VA treatment records. The Veteran also submitted private treatment records. The Board has additionally reviewed the Veteran's Virtual VA claims file. No outstanding evidence has been identified that has not been obtained. The Board notes that following the Veteran's most recent December 2012 Supplemental Statement of the Case (SSOC) additional records were associated with the Veteran's claims file. The Veteran, through his representative, has explicitly indicated he is waiving RO consideration of additional documents. There is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. Next, the Veteran was afforded VA examinations in February 2007, October 2008, and July 2012. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's lumbar or cervical spine since the July 2012 VA examination. The Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disabilities under the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to the issues on appeal, has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also provided an opportunity to set forth his contentions during the June 2009 hearing before the undersigned Veteran's Law Judge (VLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the June 2009 BVA hearing, the VLJ enumerated the issues on appeal. Information was also solicited regarding the severity of his lumbar and cervical spine, and information as to why the Veteran believes he is entitled to increased ratings. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" was also fully explained. See Bryant, 23 Vet. App. at 497. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). 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 separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). A VA General Counsel opinion has also held that DC 5293, intervertebral disc syndrome, involved loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 was applicable. See VAOPGCPREC 37-97. As is the case here, where entitlement to compensation has already been established and an increase in the disability ratings are at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected posttraumatic degenerative disc disease and degenerative arthritis of the lumbar spine and posttraumatic degenerative disc disease and degenerative arthritis of the cervical spine have each been evaluated under Diagnostic Codes (DCs) 5010-5243. His lumbar spine is rated at 20 percent throughout the appeals period and his cervical spine is rated at 10 percent prior to October 22, 2008, and at 20 percent since October 22, 2008, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5010-5243 (2013). The General Rating Formula for Diseases and Injuries of the Spine provides for the assignment of a 20 percent rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, when the combined range of motion of the cervical spine is not greater than 170 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A rating of 40 percent is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A rating of 100 percent is awarded for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Moreover, "chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months warrants the assignment of a 20 percent rating. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present 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, Diagnostic Code 5243 (2013). Lumbar Spine The Veteran's posttraumatic degenerative disc disease and degenerative arthritis of the lumbar spine is rated at 20 percent disabling throughout the entire period on appeal, pursuant to DCs 5010-5243. The Board has reviewed the evidence of record and finds that the weight of evidence does not support the next-higher 40 percent rating. The Board has initially considered whether an increased rating is warranted based on loss of forward flexion of the lumbar spine. At the Veteran's February 2007 VA examination he exhibited 90 degrees of flexion with pain beginning at 80 degrees. The examiner noted that there was no additional loss of motion on repetitive use of the joint. The Veteran was once again evaluated at an October 2008 VA examination. The Veteran exhibited flexion to 60 degrees with no additional loss of motion on repetitive use of the joint. The Board notes a March 4, 2010 private treatment record which reflected that the Veteran had "about 10 to 20 degrees of forward flexion." Nevertheless, a treatment record a couple of days later on March 16, 2010 reflected that the Veteran was able to forward flex and touch his toes without pain. An August 2011 private treatment record reflects flexion of 85 degrees, while a May 2012 private treatment record reflects flexion of 60 degrees. At the Veteran's July 2012 VA Examination he demonstrated 60 degrees of forward flexion with pain beginning at 50 degrees. An August 2012 private treatment record reflects 35 degrees of forward flexion. The Board has considered the voluminous records reflecting that the Veteran has used a cane, wheelchair, and walker at various times during the period on appeal and also sought treatment to relieve his back pain including epidural shots, nerve blocks, and therapeutic massage. Additionally, the Board is cognizant of the Veteran's use of prescription medication to help alleviate his back pain. Nevertheless, the Veteran's forward flexion is substantially greater than what is necessary to warrant a rating in excess of what he is currently assigned, even considering pain. Additionally, a review of the Veteran's private and VA treatment records, and his various VA examinations does not reflect ankylosis of the spine. Moreover, while range of motion is limited, the present level of range of motion does not indicate a fixation of the spine. Therefore, a higher rating based on ankylosis is not warranted. Turning to a possible increased evaluation under 38 C.F.R. § 4.71a Diagnostic Code 5243 concerning intervertebral disc syndrome based on incapacitating episodes, the Board has reviewed the Veteran's claims file and cannot find evidence of prescribed bedrest for his lumbar spine disability, having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. As such, the Board finds that the Veteran has not had incapacitating episodes, meeting the criteria for a 40 percent evaluation. After additionally considering Note (1), the Board finds that a separate rating for neurological abnormality is not warranted. A neurological examination at his February 2007 VA examination reflected normal findings with slightly reduced readings in his right knee extension, right ankle dorsiflexion, and great toe extension. Muscle tone was normal and there was no muscle atrophy. Sensory examination at that time was normal. Light touch was slightly reduced in his right lower extremity, as was right vibration. A neurological abnormality was not diagnosed. At the Veteran's October 2008 VA examination he exhibited normal motor strength in the lower extremities. A sensory examination was also normal as was reflex testing. A neurological abnormality was not diagnosed. The Board has considered a private treatment record the following week which reflected a diagnosis of bilateral L5 radiculopathy. See October 2009 private treatment record. However, the treating chiropractor noted that due to the severity of pain, a lot of orthopedic testing and neurological testing could not be performed. Another October 2009 private treatment record noted radicular symptoms of the right lateral thigh and right anterior knee. A neurological disorder was not diagnosed. Nevertheless, comprehensive neurological testing was subsequently performed at the Veteran's July 2012 VA examination. Strength testing at that time reflected normal strength in his lower extremities. No muscle atrophy was observed. Moreover, reflex testing and a sensory examination reflected normal results. The VA examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Additionally, bowel or bladder problems were not observed. Although radiculopathy was noted on some private treatment records, additional testing following these diagnoses did not reveal neurological findings. Therefore, based on this evidence, a separate neurological evaluation is not warranted. In sum, a rating in excess of 20 percent is not warranted for any portion of the rating period for a lumbar spine disability. In reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. Cervical Spine As noted above, the Veteran's service-connected cervical spine is rated at 10 percent prior to October 22, 2008, and at 20 percent since October 22, 2008. After reviewing the applicable rating criteria, and the reported objective findings and the subjective complaints, the Board is of the opinion that a rating of 20 percent, but no more, is warranted for the Veteran's cervical spine disability, prior to October 22, 2008. The Board has initially considered whether an increased rating is warranted based on loss of forward flexion of the cervical spine. A February 2007 examination report reflected flexion of 0 to 40 degrees, with pain beginning at 38 degrees. The VA examiner noted that there was no additional loss of motion on repetitive use of the joint. During this time period, the weight of the evidence demonstrates that the Veteran had forward flexion of the cervical spine greater than 30 degrees, even when considering pain. Therefore, a rating in excess of 10 percent is therefore not warranted on this basis. A rating in excess of 10 percent is also not warranted based on the combined range of motion of the cervical spine. At his February 2007 VA spine examination, the Veteran demonstrated the following range of motion testing results, including pain: 38 (forward flexion) + 34 (extension) + 16 (left lateral flexion) + 14 (right lateral flexion) + 70 (right rotation) + 55 (left rotation) = a total of 227 degrees. No additional loss of motion on repetitive use of the joint was noted. As the Veteran's combined range of motion of the cervical spine has been demonstrated to be greater than 170 degrees, even when considering pain, a rating in excess of 10 percent is not warranted on this basis. Nevertheless, the evidence reflects that the Veteran demonstrated muscle spasm of the cervical sacrospinalis which was severe enough to result in an abnormal gait. The February 2007 VA examination report reflects that the Veteran experienced muscle spasms of his cervical sacrospinalis and it was severe enough to be responsible for abnormal gait. The Veteran's gait was described as antalgic. Accordingly, a 20 percent evaluation is warranted for the period prior to October 22, 2008. Having determined that the Veteran is entitled to a 20 percent rating prior to October 22, 2008, the Board will consider whether he is entitled to a rating in excess of 20 percent for his cervical spine for the entire time on appeal under the criteria for evaluating spine disorders. In order to warrant a higher rating, the evidence must show forward flexion of the cervical spine 15 degrees or less (30 percent), favorable ankylosis of the entire cervical spine (30 percent), or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (DC 5243, 40 percent). The Board has reviewed the evidence of record and finds that the weight of evidence does not support an increased rating. Indeed, an October 2008 VA examination revealed forward flexion of the cervical spine to 25 degrees. It was noted that range of motion was not additionally limited following repetitive use. August 2011 and August 2012 private treatment records noted 50 degrees of flexion. At a July 2012 VA examination, the Veteran demonstrated 45 degrees of forward flexion. There was no objective evidence of painful motion. Therefore, because even considering pain, flexion is not shown at 15 degrees or less, the findings above, do not support a 30 percent evaluation. See DeLuca. Additionally, the evidence does not reflect ankylosis of the cervical spine. For definitional purposes, ankylosis is 'immobility and consolidation of a joint due to disease, injury, or surgical procedure.' Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). While range of motion is limited, the present level of range of motion does not indicate a fixation of the cervical spine. Moreover, X-ray testing throughout the record does not reflect ankylosis. Therefore, a higher rating based on ankylosis is not warranted. Next, while the Veteran has reported on-going cervical spine pain, a review of the Veteran's private and VA treatment records does not reflect that he has been ordered bedrest by a physician for his service-connected cervical spine. As he has not demonstrated that he experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a rating of 40 percent is not for application. After additionally considering Note (1), the Board finds that a separate rating for neurological abnormality is not warranted. A neurological examination at his October 2008 VA examination shows normal motor strength in the upper extremities and normal sensory function in the upper extremities. A reflex examination of the upper extremities was additionally normal. A neurological diagnosis was not rendered. A neurological examination at his July 2012 VA examination reflected normal muscle strength testing, hypoactive reflexes and a normal sensory examination. Crucially, the VA examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. It was additionally noted that the Veteran does not have any other neurological abnormalities related to the cervical spine such as bowel or bladder problems due to cervical myelopathy. Significantly, a review of the private and VA treatment records does not reflect a diagnosis of a neurological disorder associated with his service-connected cervical spine disability. Based on this evidence, a separate neurological evaluation is not warranted. In sum, a rating in excess of 20 percent is not warranted for any portion of the rating period for a cervical spine disability. In reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. Other Considerations The Board has considered the Veteran's statements regarding increased symptomatology. The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant higher ratings for both his lumbar and cervical spine disabilities; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, more probative than the Veteran's assessment of the severity of his disabilities. Thus, evidence of increased lumbar spine and cervical spine disabilities have not been established, either through medical or lay evidence. Further, the disabilities do not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are present, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. There has been no showing that the Veteran's disability picture for his cervical spine or lumbar spine is not contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained, the currently assigned ratings adequately describe the severity of the Veteran's symptoms for these disabilities during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of disability ratings on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. Finally, although the Veteran has submitted evidence of a medical disability, and made claims for the highest ratings possible for his service-connected cervical spine and lumbar spine, he has not submitted evidence of unemployability, or claimed to be unemployable. The Veteran reported at his most recent July 2012 VA examination that he was currently employed as a counselor at a high school. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating in excess of 20 percent for posttraumatic degenerative disc disease and degenerative arthritis of the lumbar spine is denied. A 20 percent rating, but no more, for posttraumatic degenerative disc disease and degenerative arthritis of the cervical spine, prior to October 22, 2008, is granted, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 20 percent for posttraumatic degenerative disc disease and degenerative arthritis of the cervical spine, since October 22, 2008, is denied. ____________________________________________ D.C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs