Citation Nr: 1336731 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 02-16 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an extension of a temporary total rating beyond November 30, 2009, based on surgical or other treatment necessitating convalescence. 2. Entitlement to an initial compensable evaluation prior to January 17, 2003, and in excess of 10 percent thereafter, for costochondritis, residual of rib trauma, left side. 3. Entitlement to an evaluation in excess of 20 percent prior to January 17, 2013, and 30 percent thereafter, for degenerative joint disease of the cervical spine, status post surgical fusion. 4. Entitlement to a separate compensable evaluation for radiculopathy of the right upper extremity as a manifestation of degenerative joint disease of the cervical spine. 5. Entitlement to an initial evaluation in excess of 10 percent prior to January 2, 2013, and 30 percent thereafter, for adjustment disorder with mixed anxiety. (The claims of entitlement to service connection for a left shoulder disability and sleep apnea are addressed in a separate Board decision.) REPRESENTATION Appellant represented by: Mary M. Long, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from March 1986 to October 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal of August and December 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the Board at a June 2011 hearing. A transcript of the hearing is of record. The issue of entitlement to a separate compensable evaluation for radiculopathy of the right upper extremity is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran did not suffer severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches with regular weight-bearing prohibited for any period after November 30, 2009, following an August 2009 cervical spine surgery. 2. Prior to June 16, 2010, the Veteran's left rib injury was manifested by no more than sporadic pain of minimal duration which would resolve itself without the use of medication, approximating no more than "slight" injury to the thoracic muscle group. 3. As of June 16, 2010, the Veteran's left rib injury has been manifested by no more than constant mild to moderate pain on movement and breathing, approximating no more than "moderate" injury to the thoracic muscle group. 4. Prior to January 17, 2013, the Veteran's cervical spine disability was manifested by no more than flexion and extension of the cervical spine limited by pain to 40 and 20 degrees, respectively; there is no objective evidence of ankylosis or incapacitating episodes. 5. As of January 17, 2013, the Veteran's cervical spine disability was manifested by severe limitation of motion on forward flexion and extension; there is no objective evidence of ankylosis or intevertebral disc syndrome. 6. Prior to an August 2009 surgery, the Veteran's cervical spine disability was manifested by radiculopathy of the right upper extremity, resulting in symptoms of shooting pain and numbness. 7. The Veteran's adjustment disorder is manifested throughout the appeal period by no more than occupational and social impairment with occasional decrease in work efficiency due to such symptoms as irritability, depression, mild memory loss and some social isolation. CONCLUSIONS OF LAW 1. Extension of the temporary total disability evaluation for convalescence following cervical spine surgery beyond November 30, 2009, is not warranted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.30 (2012). 2. The criteria for an initial compensable evaluation for costochondritis, residual of rib trauma, left side, prior to June 16, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.56, 4.73, Diagnostic Code 5321 (2012). 3. The criteria for an initial evaluation of 10 percent, but not greater, for costochondritis, residual of rib trauma, left side, for the period June 16, 2010, to January 17, 2013, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.56, 4.73, Diagnostic Code 5321 (2012). 4. The criteria for an initial evaluation in excess of 10 percent for costochondritis, residual of rib trauma, left side, as of January 17, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.56, 4.73, Diagnostic Code 5321 (2012). 5. The criteria for an evaluation in excess of 20 percent prior to January 17, 2013, and 30 percent thereafter, for degenerative joint disease of the cervical spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5241 and 5243 (2012). 6. The criteria for a separate evaluation for right upper extremity radiculopathy related to the Veteran's cervical spine disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.124, Diagnostic Code 8515 (2012). 7. The criteria for an initial evaluation of 30 percent, but not greater, for adjustment disorder with mixed anxiety throughout the period prior to January 2, 2013, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.59, 4.130, Diagnostic Code 9400 (2012). 8. The criteria for an initial evaluation in excess of 30 percent for adjustment disorder with mixed anxiety as of January 2, 2013, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.59, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the appeals regarding adjustment disorder and costochondritis, as service connection has been granted and an initial disability rating and effective date have been assigned, the originating service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. With respect to the remaining issues on appeal, VA's duty to notify was satisfied through September and October 2009 and August 2012 letters sent to the appellant that fully addressed all notice elements. The letters informed the appellant of what evidence was required to substantiate his increased rating claim, and of the appellant's and VA's respective duties for obtaining evidence. Although not all of the notice letters were sent before the initial AOJ decision on these matters, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case through the issuance of a February 2013 supplemental statement of the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded multiple VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board finds these VA examinations adequate for the purposes of the instant claims, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate description of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes this case was remanded by the Board in June 2012 for additional development. Specifically, the Board instruct the Veteran be requested to identify and supply the appropriate medical releases for all private treatment providers which have treated him for his disabilities. The Board also instructed he be provided new VA examinations to evaluate his disabilities. These actions were accomplished on remand. As such, the Board finds there has been substantial compliance the Board's June 2012 remand, and adjudication of the instant claims may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159 . Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C.A. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. I. Temporary Total Evaluation The Veteran asserts entitlement to an extension of a temporary total evaluations beyond November 30, 2009, due to a cervical spine surgery requiring convalescence. Specifically, he contends that three months following the August 2009 surgery, he continued to have no mobility in his neck. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b). In the case of disability which is temporary in nature, such as that period of convalescence following surgery, governing regulation provides for temporary total disability ratings during convalescence. 38 C.F.R. § 4.30. Temporary total ratings will be assigned from the date of hospital admission and continue for 1, 2 or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Temporary total disability ratings are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. See 38 C.F.R. § 4.30. Extensions of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30(a) (1), (2) or (3). Extensions of one or more months up to six months beyond the initial six months period may be made only under 38 C.F.R. § 4.30(a)(2) or (3) upon the approval of the Adjudication Officer. See 38 C.F.R. § 4.30(b). Notations in the medical record as to a veteran's incapacity to work after surgery must be taken into account in the evaluation of a claim brought under the provision of 38 C.F.R. § 4.30. Seals v. Brown, 8 Vet. App. 291, 296-97 (1995); Felden v. West, 11 Vet. App. 427, 430 (1998). Furthermore, the term "convalescence" does not necessarily entail in-home recovery. In August 2009, the Veteran underwent an anterior cervical diskectomy and fusion with an allograft placement and plate fixation. Due to this surgery, the RO granted a temporary total evaluation from August 27, 2009, to November 30, 2009. At the June 2011 Board hearing, the Veteran asserted that he convalesced for two and a half months and then participated in private physical therapy three times a week for the next three months. The Board has reviewed reports of the surgery and follow-up visits that have been associated in the claims file. These reports do not support the Veteran's assertion that his neck surgery required convalescence beyond November 30, 2009. In this regard, the Board notes a September 2009 OU Physicians progress note indicates the Veteran reported his neck muscles were tight and his neck was "pretty stiff" on examination. By October 2009, his neck pain was "finally improving," and he began to decrease his pain medicine usage. This record indicates the Veteran continued to experience decreased range of motion, but does not support his assertion that he had no motion of the neck whatsoever. Further, the October 2009 progress note indicates the Veteran was being sent to physical therapy to work on cervical range of motion and strengthening, there remains no medical evidence of record to demonstrate incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited), at any point after November 30, 2009. The Veteran was requested to submit evidence in support of his contention that he required convalescence after November 30, 2009. See June 2012 Board remand, August 2012 notice letter. However, the Veteran did not respond to this request. The Court has held that VA's duty to assist the Veteran in the proper development of his case is "not always a one-way street" and the Veteran must be prepared to cooperate with VA's efforts to obtain all relevant evidence. Olson v. Principi, 3 Vet. App. 480, 483 (1992); see also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that "[i]f 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 purtative evidence."). The Board acknowledges the Veteran's assertion that he was unable to work even after November 30, 2009, following his surgical spine surgery. See, e.g., June 2011 Board hearing transcript. However, the Board notes that the governing law and regulation are explicit in their language, and there is little flexibility involved in the award of a temporary total disability evaluation for convalescence. The record shows that the Veteran underwent cervical spine surgery in August 2009 which necessitated a period of convalescence. There is no competent evidence of record to suggest this surgery resulted in a convalescence period beyond that previously assigned. As such, in the absence of the conditions enumerated above, there is no legal basis for the assignment of additional convalescence benefits. The preponderance of the evidence is against the Veteran's claim and the appeal must be denied. II. Increased Evaluations Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. A. Costochondritis, Residual of Rib Trauma, Left Side The Veteran's costochondritis of the left side has been evaluated as noncompensable prior to January 17, 2013, and 10 percent thereafter. Initially, the disability was evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5297, pertaining to removal of the ribs. See August 2009 rating decision. Since a February 2013 rating decision, the Veteran's disability has been evaluated pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5321, pertaining to injuries to Muscle Group XXI. As a compensable evaluation under Diagnostic Code 5297 requires removal of at least one rib, or resection of two, which is not present in this case, the Board finds the Veteran's disability is more appropriately evaluated under Diagnostic Code 5321 throughout the appeal period. Diagnostic Code 5321 contemplates injury to the thoracic muscle group, whose function is respiration. Slight and moderate injury warrants a noncompensable and 10 percent evaluation, respectively. Moderately-severe or severe injury warrants a 20 percent evaluation. 38 C.F.R. § 4.73, Diagnostic Code 5321. A slight muscle injury results in no impairment of function with no evidence of fascial defect, atrophy or impaired tonus. A moderate muscle injury results in some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lower threshold of fatigue when compared to the sound side. See 38 C.F.R. § 4.56. A moderately-severe muscle injury contemplates palpation of loss of deep fascia, muscle substance or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance demonstrate positive evidence of impairment. Id. Finally, a severe muscle injury contemplates swollen and hardened muscles in contraction with severe impairment of muscle strength, endurance or coordinated movements. Id. Turning to the evidence, private treatment records indicate the Veteran presented in September 2003 with left rib pain, which was diagnosed as chronic costochondritis. At an October 2004 VA general medical examination, he reported a sharp pain off and on in his ribs and muscles on the left side. He indicated this pain occurred two to three times a month, lasts for a few seconds to one minute, then resolved on its own. He reported he did not take medications for the pain and was usually not bothered by it. On examination, there was no pain on palpation of the muscles and ribs of the left-sided chest wall. A June 2010 VA examination report reflects the Veteran reported difficulty taking a deep breath due to rib pain. He stated it limits his walking on the treadmill. He did not report specific flare-ups and takes no medication for the rib pain. On examination, the lungs were clear bilaterally with good inspiratory and expiratory movement. There was minimal tenderness over the left rib heads. Finally, a January 2013 VA examination notes an injury to muscle group XXI (the thoracic muscle group). The examiner noted the injury results in painful movement of breathing and twisting due to rib and muscles with consistent pain. There was no evidence of muscle atrophy. Considering the evidence of record, the Board finds that an initial evaluation of 10 percent is warranted as of June 16, 2010, the date of the VA examination which first indicates pain and difficulty breathing. Prior to this point, the evidence indicates the Veteran's left rib injury resulted in sporadic, short-lived pain which would resolve itself. There is no mention of difficulty breathing or painful motion during this period. Such symptomatology reflects no more than a "slight" injury to the thoracic muscles. However, as noted above, as of June 16, 2010, records indicate the Veteran's left rib injury has resulted in some pain on motion with some constant pain while breathing. However, this pain is not severe so as to require medication, and there is no evidence of muscle weakness and/or atrophy. Such symptomatology approximates no more than "moderate" injury to the thoracic muscle group. Therefore, the Board finds that an initial evaluation of 10 percent, but not greater, is warranted as of June 16, 2010, resulting in an increased evaluation for the period June 16, 2010, to January 17, 2013. However, the preponderance of the evidence is against the assignment of an initial compensable evaluation prior to June 16, 2010, or in excess of 10 percent thereafter, for costochondritis of the left side. The benefit of the doubt rule does not apply with respect to this aspect of the Veteran's appeal. See 38 U.S.C.A. § 5107 (West 2002). B. Degenerative Disk Disease of the Cervical Spine The Veteran's cervical spine disability has been assigned an evaluation based upon limitation of motion of the cervical spine of 20 percent prior to January 17, 2013, and 30 percent thereafter, pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5010-5241, pertaining to spinal fusion resulting in arthritis of the cervical spine. As he has complained of shooting radicular pain and numbness of the upper extremities, the criteria pertaining to intervertebral disc syndrome also potentially apply. Disabilities of the cervical and thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). The Formula provides the following ratings in relevant part as they apply to the cervical spine: A 20 percent evaluation is assigned 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 abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Id. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine, and a maximum 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Id. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which the entire cervical spine...or the entire spine is fixed in flexion or extension". See id., Note (5). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine". 68 Fed. Reg. at 51,455 (Supplementary Information). Notes appended to the General Rating Formula specify that associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). 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. Id., Note (2). Ranges of motion are to be rounded to the nearest five degrees. Id., Note (4). Separate disability ratings are to be given for the thoracolumbar and cervical spine segments. Id., Note (6). Intervertebral disc syndrome (either preoperatively or postoperatively), rated under Diagnostic Code 5243, is 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 orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The criteria contained in Diagnostic Code 5243 provides for a 20 percent evaluation where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). An incapacitating episode is defined as 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, Diagnostic Code 5243, Note (1). 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 chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). Prior to January 17, 2013 Prior to January 17, 2013, the Veteran's cervical spine disability has been assigned an evaluation of 20 percent under the General Rating Formula based upon limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a. Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his cervical spine disability at any point during this stage of the appeal. While the Veteran's neck pain is well documented, specific findings as to range of motion is limited during this period. For example, a March 2009 Excel physical therapy evaluation (provided prior to the Veteran's cervical spine surgery), notes flexion of the cervical spine of 37 degrees with extension to 17 degrees. These findings are to be rounded to 40 degrees and 20 degrees of motion, respectively. See 38 C.F.R. § 4.71a, Note (4). Likewise, a December 2009 VA examination report notes ranges of motion, rounded to the nearest five degrees, of 40 degrees of flexion and 20 degrees of extension. Motion was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination. See DeLuca, supra. There is no other range of motion findings pertaining to the cervical spine during this stage of the Veteran's appeal. As discussed above, while the Veteran has alleged he engaged in physical therapy for approximately three months after November 30, 2009 (the expiration date of a temporary total evaluation), he has not identified the provider or supplied the requisite medical releases. Therefore, this evidence could not be considered by the Board in evaluating his cervical spine disability prior to January 17, 2013. The range of motion reflected by the record does not demonstrate functional limitation so severe as to warrant an evaluation greater than 20 percent prior to January 17, 2012. The Board has also considered whether an increased evaluation is warranted during this period based on intervertebral disc syndrome. However, there is no evidence of incapacitating episodes, defined by regulation as doctor-prescribed bed rest, at any point during this stage of the Veteran's appeal. Therefore, an increased evaluation is not warranted under Diagnostic Code 5243. Under the above circumstances, the Board finds insufficient evidence to warrant an evaluation in excess of 20 percent for the Veteran's cervical spine disability at any point prior to January 17, 2013. There is no evidence of flexion of the cervical spine limited to 15 degrees or less, or of favorable or unfavorable ankylosis of the cervical or entire spine. The Board acknowledges the Veteran's complaints of pain throughout the range of motion of his cervical spine. However, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion sufficient to serve as a basis for an increased evaluation at any point during the appeal period. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.") Therefore, the Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent at any point prior to January 17, 2013, for the Veteran's cervical spine disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As of January 17, 2013 As of January 17, 2013, the Veteran's cervical spine disability has been assigned an evaluation of 30 percent under the General Rating Formula based upon limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a. Initially, the Board observes that, at 30 percent, the Veteran is in receipt of the maximum possible evaluation for his cervical spine disability based upon limitation of motion. Therefore, further consideration of limitation of motion is not necessary for this stage of the Veteran's appeal. Having considered the evidence of record, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent for his cervical spine disability at any point during this stage of the appeal. In this regard, the Veteran was provided a VA examination in January 2013 to evaluate the severity of his cervical spine disability. The VA examination report reflects no indication of ankylosis of the cervical spine or the entire spine, and specifically determines the Veteran does not suffer from intevertebral disc syndrome of the cervical spine. Therefore, the Board finds that a preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent at any point as of January 17, 2013, for the Veteran's cervical spine disability, and the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Additional Considerations The Board has considered whether a separate evaluation for neurological disability is warranted. December 2008 pain management records indicate the Veteran then complained of shooting pain and numbness of the right upper extremity. A diagnosis of cervical radiculopathy was rendered. While a February 2009 private treatment record notes the Veteran's radicular symptoms had resolved, an April 2009 record again notes right radicular pain with numbness along the C-7 root. Even though this symptomatology appears to have resolved following the August 2009 surgery, as the December 2009 and January 2013 VA examinations specifically find no radicular or neurological impairment, these pre-surgery records document radiculopathy of the right upper extremity within one year prior to the instant claim (filed in August 2009) and, therefore, lie within the appeal period. See 38 C.F.R. § 3.400(o) (2012). Therefore, the Board finds that a separate evaluation for radiculopathy of the right upper extremity is warranted. However, for the reasons discussed below, the Board will remand the matter to the AOJ for assignment of a specific evaluation and effective date(s). C. Adjustment Disorder with Mixed Anxiety The Veteran asserts that his service-connected adjustment disorder with anxiety is more severe than contemplated by the assigned evaluations. Service connection for this disability was granted by an August 2009 rating decision, and an initial 10 percent evaluation assigned under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). The current 30 percent evaluation effective January 2, 2013, was assigned by a February 2013 rating decision. Entitlement to whether an increased evaluation is warranted will be considered for both rating periods. Diagnostic Code 9400 is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 10 percent evaluation is warranted with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent valuation contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-car, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. The Board has considered the entire evidence of record and, for the reasons discussed below, has determined that an initial evaluation of 30 percent is warranted throughout the appeal period (both prior to and as of January 2, 2013). However, an evaluation in excess of 30 percent is not warranted at any point during the appeal period. An August 2006 private psychiatric evaluation report notes the Veteran's sleep is interrupted 15 to 20 times a night by bad dreams, and experiences depression and anxiety daily. The Veteran reported being socially isolated and withdrawn with no hope for the future. He reported being irritable "most of the time," and has anger outburst. On examination, he was neat and appropriately dressed, was cooperative and made eye contract. While he showed a blunted to depressed effect, he was not homicidal or suicidal, had no psychotic ideations, and his judgment was not impaired. The private physician noted a GAF score of 50. While the Veteran's symptoms were noted to result in impairment of social, occupational and other functioning, the level of impairment is not specified. At an August 2006 VA contract examination, the Veteran reported a 20-year history of sleep disturbance, noting he was then very tired and angry with short patience, irritability and confusion. He reported working building oxygen regulators since 1988 (a position in which he remains employed), and his relationship with his supervisor was good. Orientation was within normal limits, and appearance and hygiene were appropriate. While behavior was noted to be inappropriate, this was noted to be due to explosive and interruptive coughing bouts due to hay fever. Communication, speech, affect and mood were normal, with panic attacks of less than once per week. There was no delusional history, hallucinations, obsessional rituals or impairment in thought processes or judgment. His memory was mildly impaired. A GAF score of 70 was assigned, and the examiner noted the Veteran is able to establish and maintain effective work/school and social relationships with no difficulty understanding commands. A May 2010 VA examination report indicates the Veteran continued to complain of irritability due to constant pain with a remote history of panic attacks, most recently in November 2008. He reported having recently been married to his girlfriend of two years and a continuing good relationship with his grown children. While he reported getting along with his siblings, coworkers, supervisor and a few friends, he limits his social activities due to pain. He reported to the examination appropriately dressed with good hygiene and appeared with a flat affect and mildly depressed mood. There was an absence of inappropriate behavior. He showed no signs of thought disorder, and denied hallucinations and delusions. He denied suicidal or homicidal ideation or intent and had no impairment of thought process or communication. A GAF score of 75 was assigned. Finally, a VA examination performed in January 2013 notes the Veteran reported continued anxiety, depressed mood and irritability. He denied panic attacks and reported he stays home most of the time when not at work. He continues to have friendships and maintains relationships with his grown children and siblings and spends time with his wife watching TV and occasionally go to the movies. He presented with a depressed mood, suspiciousness, mild memory loss, and disturbances of motivation and mood. There was no impairment to judgment, thought processes, communication or thinking, panic attacks, suicidal or homicidal ideation, or impaired impulse control. A GAF score of 70 was assigned, and the examiner specifically found the Veteran's anxiety and depressed mood "have very mild impact on his ability to work." An evaluation of 30 percent contemplates symptomatology including depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). See General Rating Formula. Such symptomatology is reflected throughout the appeal period. However, an evaluation of 50 percent contemplates reduced reliability and productivity due to symptoms such as weekly panic attacks, difficulty in understanding complex commands, speech and memory impairment and difficulty in establishing effective work and social relationships. Id. Such symptomatology is not supported by the evidence of record at any time during the appeal period. As described above, the Veteran has maintained employment and a good relationship with his coworkers, supervisors and family. He has consistently been found to have intact speech, communication and judgment/thinking skills. In reaching its decision, the Board has considered the entire evidence of record, including GAF scores and statements and testimony of the Veteran. Also considered was the benefit-of-the-doubt rule. Ultimately, the Board has determined that the evidence supports the assignment of an initial evaluation of 30 percent for the Veteran's adjustment disorder for the period prior to January 2, 2013. However, the preponderance of the evidence is against the Veteran's claim for an initial evaluation greater than 30 percent at any point during the appeal period. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). D. Final Considerations The Board acknowledges the Veteran's contentions that his service-connected disabilities warrant evaluations greater than those assigned herein. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. The opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. Part 4 with respect to determining the severity of his service-connected disabilities. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The rating schedule fully contemplates the Veteran's reported symptomatology of limitation of motion, regardless of severity, pain, anxiety and irritability. He continues to be employed and has a good working relationship with his supervisors. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An extension of the temporary total evaluation for convalescence following cervical spine surgery beyond November 30, 2009, is denied. An initial compensable evaluation for costochondritis, residual of rib trauma, left side, prior to June 16, 2010, is denied. An initial evaluation of 10 percent for costochondritis, residual of rib trauma, left side, for the period June 16, 2010, to January 17, 2013, is granted. An initial evaluation in excess of 10 percent for costochondritis, residual of rib trauma, left side, as of January 17, 2013, is denied. An evaluation in excess of 20 percent prior to January 17, 2013, and 30 percent thereafter, for degenerative joint disease of the cervical spine is denied. A separate evaluation for radiculopathy of the right upper extremity is granted. An initial evaluation of 30 percent, but not greater, for adjustment disorder with mixed anxiety prior to January 2, 2013, is granted. An initial evaluation in excess of 30 percent for adjustment disorder with mixed anxiety as of January 2, 2013, is denied. REMAND As discussed above, the Board has determined that a separate evaluations is warranted for radiculopathy of the right upper extremity as associated with the Veteran's service-connected cervical spine disability. See generally 38 C.F.R. § 4.71a, Note (1). However, as it appears a staged evaluation may be appropriate, a remand is necessary to allow the agency of original jurisdiction to assign initial evaluation(s ) and effective date(s) with respect to this condition. See generally Hart, supra. Should the Veteran disagree with the initial evaluation(s) and/or effective date(s) assigned, the issue should be returned to the Board only if a timely notice of disagreement and, after the issuance of a statement of the case, a timely substantive appeal are submitted. Accordingly, the case is REMANDED for the following action: Assign a separate initial evaluation for radiculopathy of the right upper extremity, considering whether staged evaluations are warranted pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007). All appropriate procedures should be followed. The Veteran should be advised that, if he wishes to initiate an appeal of this issue, he must file a timely notice of disagreement following the issuance of a rating decision. 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). ______________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs