Citation Nr: 1336919 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-08 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent from February 18, 2003 to April 13, 2011 for a lumbar strain with degenerative disc disease. 2. Entitlement to a disability rating in excess of 40 percent as of April 14, 2011 for a lumbar strain with degenerative disc disease. 3. Entitlement to a disability rating in excess of 30 percent for degenerative disc disease of the cervical spine. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to August 1959 and from April 1961 to April 1979, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which increased the Veteran's disability rating for his degenerative disc disease of the cervical spine from 10 to 30 percent, effective as of the February 18, 2003 date of the Veteran's claim, and increased his disability rating for his lumbar strain with degenerative disc disease from 10 to 20 percent, also as of February 18, 2003. The Board remanded the claims in November 2010 because the most recent VA examination of record was dated February 2007, and VA obtained a new examination on April 14, 2011. In a June 2012 rating decision, the RO increased the rating for his lumbar strain with degenerative disc disease from 20 to 40 percent as of April 14, 2011; continued the Veteran's 30 percent disability rating for his degenerative disc disease of the cervical spine; assigned a 10 percent rating for right lower extremity neuropathy as of October 12, 2007, and a 40 percent rating as of April 14, 2011; assigned a 10 percent rating for left lower extremity neuropathy as of October 12, 2007, and a 40 percent rating as of April 14, 2011; assigned a 10 percent rating for left upper extremity neuropathy as of October 12, 2007; assigned a 10 percent rating for right upper extremity neuropathy as of October 12, 2007; and granted entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective October 12, 2007. The Board again remanded the claims in June 2013 because the most recent VA examination of record was dated April 2011, and because the evidence indicated that additional pertinent VA treatment records had not been associated with the claims file. VA obtained a new examination in July 2013. The RO subsequently granted the Veteran special monthly compensation pursuant to 38 U.S.C.A. § 1114(s), but continued his disability ratings for his lumbar and cervical spine disabilities. In February 2008, the Veteran cancelled his request for a hearing before the Board. In May 2013, in response to VA's April 2013 letter requesting clarification, the Veteran informed VA that he now wishes to represent himself. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. From February 18, 2003 to April 13, 2011, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the Veteran's lumbar strain with degenerative disc disease was characterized by forward flexion of the thoracolumbar spine to as little as 45 degrees, without ankylosis; it did not manifest with severe limitation of motion of the lumbar spine, or with a severe lumbosacral strain. 2. As of April 14, 2011, the Veteran's lumbar strain with degenerative disc disease is characterized by favorable ankylosis of the entire thoracolumbar spine. 3. Throughout the appeal, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the Veteran's degenerative disc disease of the cervical spine is characterized by forward flexion to 15 degrees, without ankylosis. 4. As of July 15, 2013, the Veteran's right upper extremity neuropathy associated with degenerative disc disease of the cervical spine is manifested by severe incomplete paralysis of the upper radicular group of nerve roots. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent from February 18, 2003 to April 13, 2011 for a lumbar strain with degenerative disc disease have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5292, 5295 (2003); DC 5237-5242 (2013). 2. The criteria for a disability rating in excess of 40 percent as of April 14, 2011 for a lumbar strain with degenerative disc disease have not been met. 38 C.F.R. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5292, 5295 (2003); DC 5237-5242 (2013). 3. The criteria for a disability rating in excess of 30 percent for degenerative disc disease of the cervical spine have not been met. 38 C.F.R. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5290 (2003); DC 5242 (2013). 4. Effective July 15, 2013, the criteria for a rating of 50 percent, but no higher, for right upper extremity neuropathy associated with degenerative disc disease of the cervical spine are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.123, 4.124, 4.124a, DC 8510 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in the March 2003 letter that was provided before the June 2003 initial adjudication of the claim. The letter notified the Veteran of the information and evidence needed to substantiate his increased rating claims. He was told that the evidence must show that his service-connected disabilities had gotten worse. A subsequent letter, dated March 2006, prior to the February 2007 readjudication in the statement of the case, also provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service, private, and VA treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. VA provided the Veteran with examinations of his lumbar and cervical spine in September 2004, February 2007, April 2011, and July 2013. The Board finds that these examinations are adequate because the examiners discussed the Veteran's medical history, described his lumbar and cervical spine and associated disability symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). This claim was remanded by the Board for additional development in November 2010 and June 2013. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has requested additional treatment records and lay statements. Additionally, VA provided the Veteran with new examinations in April 2011 and July 2013. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Analysis The Veteran contends that he is entitled to higher initial disability evaluations for his lumbar strain with degenerative disc disease and degenerative disc disease of the cervical spine. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7 (2013). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Effective September 23, 2002, VA revised the criteria for evaluating spinal disorders under Diagnostic Code 5293, intervertebral disc syndrome. 67 Fed. Reg. 54,345-54,349 (2002). VA again revised the criteria for evaluating spine disorders, effective September 26, 2003. See 68 Fed. Reg. 51,454-51,458 (2003). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Because the Veteran's claims for higher ratings for lumbar and cervical spine disabilities were filed on February 18, 2003, prior to the September 26, 2003 date of implementation of the revised regulations for those disabilities, the Board will consider those claims under both the former (i.e., pre-September 26, 2003) and current (i.e., post-September 26, 2003) regulations. The Veteran's lumbar strain with degenerative disc disease is rated at 20 percent from February 18, 2003 to April 13, 2011, and at 40 percent as of April 14, 2011. His degenerative disc disease of the cervical spine is rated at 30 percent throughout the pendency of the appeal. Additionally, the Veteran is in receipt of separate ratings for right and left lower extremity neuropathy associated with his lumbar strain with degenerative disc disease, rated at 10 percent each as of October 12, 2007, and at 40 percent each as of April 14, 2011. The Veteran is also in receipt of separate ratings for right and left upper extremity neuropathy associated with degenerative disc disease of the cervical spine, rated at 10 percent each as of October 12, 2007. Under 38 C.F.R. § 4.71a, both prior to and as of the September 26, 2003 revisions, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected cervical and lumbar spine disorders. Former (i.e., pre-September 26, 2003) Diagnostic Code 5290 provided that a 30 percent rating was warranted for severe limitation of motion of the cervical spine. Former Diagnostic Code 5292 provided that a 20 percent rating was warranted for moderate limitation of motion of the lumbar spine. A rating of 40 percent required severe limitation of motion. Former Diagnostic Code 5295 provided that 20 percent evaluation required muscle spasm on extreme forward bending and loss of lateral spine motion. A rating of 40 percent was warranted when the disability was productive of severe disability manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. Current (i.e., post-September 26, 2003) Diagnostic Codes 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, are applicable to the lumbar and cervical spine. 38 C.F.R. § 4.71a, DCs 5003, 5010. Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2013). Currently, a lumbar spine disability may be rated pursuant to the general rating formula for diseases and injuries of the spine set forth in DCs 5235-5242. Under the general rating formula, a 20 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating requires that the condition be manifested by forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2. 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 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes; this regulation uses the identical criteria for duration of incapacitating episodes, and associated ratings, as the former (i.e., pre-September 26, 2003) Diagnostic Code 5293 which was in effect as of the February 18, 2003 date of the Veteran's claim. 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. Intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with rating of all other disabilities, whichever method results in the higher rating. Here, the Veteran was first diagnosed with IVDS of the thoracolumbar spine in his July 2013 VA examination report, in which he was found to have at least 6 weeks of incapacitating episodes over the past 12 months-resulting in a possible 60 percent rating for his lumbar spine disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. At the time of the July 2013 initial diagnosis and finding, the Veteran was in receipt of a 40 percent rating for his lumbar strain with degenerative disc disease, as well as two separate 40 percent ratings for right and left lower extremity neuropathy associated with his lumbar strain with degenerative disc disease. Under the combined ratings table, using the bilateral factor for his bilateral lower extremity neuropathy, the Veteran's overall disability rating for his lumbar strain with degenerative disc disease and associated neurological manifestations under the General Rating Formula for Diseases and Injuries of the Spine is 82 percent. 38 C.F.R. §§ 4.25, 4.26, 4.71(a). Because the 82 percent combined rating under the General Rating Formula for Diseases and Injuries of the Spine is greater than the 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the higher 82 percent combined rating will continue to be applied, rather than the lower 60 percent rating for incapacitating episodes. 38 C.F.R. § 4.71(a). With respect to the cervical spine, the July 2013 VA examiner found that the Veteran does not have IVDS, and no other diagnosis of IVDS of the cervical spine is of record. As such, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes does not apply to the Veteran's cervical spine. Id. At his September 23, 2004 VA examination, the Veteran reported that he has constant pain of 10/10 (i.e., maximum possible) intensity in both his neck and low back. He denied having flare-ups of pain because the pain is constant. He reported that he had lost his job 5 months ago due to his back and neck pain, and unrelated dizziness. He also reported that his almost incapacitating neck and low back pain severely interferes with his daily activities. On examination, the Veteran had the following lumbosacral spine ranges of motion: forward flexion to 45 degrees, extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and rotation to 25 degrees bilaterally. There was pain only at the maximum ranges of motion, mild scoliosis, and no change on repetitive motion or with active/passive motion. The Veteran had the following cervical spine ranges of motion: forward flexion to 15 degrees, extension to 10 degrees, lateral flexion to 15 degrees bilaterally, and rotation to 20 degrees bilaterally. There was pain throughout and muscle spasm, but no changes due to repetitive motion. The examiner found no additional functional impairment due to pain, fatigue, weakness, or lack of endurance following repetitive use or due to flare-ups. The examiner diagnosed degenerative disc disease/degenerative joint disease of the lumbosacral and cervical spine. At his February 12, 2007 VA examination, the Veteran again reported experiencing constant pain in his neck and back. He reported that he had lost approximately 3 days of work from his part-time (30 hours/week) job in the past year due to his back and neck disabilities. He stated that he has not been hospitalized or put on bed rest by a physician for his back or neck disabilities. The Veteran reported no problems with his activities of daily living. On examination, the Veteran had the following lumbosacral spine ranges of motion: forward flexion to 90 degrees, extension to 10 degrees, lateral flexion to 15 degrees, and rotation to 40 degrees bilaterally. However, the examiner observed that "these ranges of motion are not completely accurate because of the veteran's concern about the possibility of having pain rather than having real pain....I noticed no evidence of any pain on [range of motion] examinations." As an example, the examiner noted that the Veteran initially refused to bend down for range of motion testing because of concerns about pain, but then bent down to pick something up off of the floor. The Veteran had the following cervical spine ranges of motion: forward flexion to more than 45 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to a total of 50 degrees. The Veteran reported pain, but the examiner found no significant change on repetitive testing. The examiner diagnosed degenerative disc disease/degenerative joint disease of the lumbosacral and cervical spine. At his April 14, 2011 VA examination, the Veteran reported that he was retired. The VA examiner found ankylosis of the lumbosacral spine at 20 degrees of forward flexion. The Veteran had the following lumbosacral spine ranges of motion: forward flexion to 35 degrees, extension to -20 degrees forward (i.e., he had little if any ability to straighten his spine), lateral flexion to 15 degrees bilaterally, and rotation to 15 degrees bilaterally. The Veteran had the following cervical spine ranges of motion: forward flexion to 30 degrees, extension to 0 degrees, lateral flexion to 45 degrees bilaterally, and rotation to 40 degrees bilaterally. All range of motion tests were repeated without change or demonstrable pain. The examiner diagnosed degenerative joint disease of the lumbar and cervical spine, with chronic pain syndrome of the lumbar spine. At his July 15, 2013 VA examination, the Veteran reported having constant low back pain; intermittent neck pain; persistent bed rest on a daily basis; an inability to stand erect, with a noted stance of 30 degrees of flexion; and an unsteady gait requiring assistance at all times. The Veteran had the following lumbosacral spine range of motion: forward flexion to 30 degrees, considering pain. The Veteran was unable to extend, flex to the right or left, or rotate to the right or left. No repetitive use testing was possible. The Veteran had significant pain and functional impairment of the lumbosacral spine, as well as localized tenderness or pain to palpation, guarding or muscle spasm, and abnormal spinal contour. Neurologically, the examiner found that the Veteran did not have muscular atrophy. The examiner found that the Veteran had confirmed thoracolumbar spine ankylosis to 30 degrees of forward flexion. The Veteran had the following cervical spine ranges of motion: forward flexion to 40 degrees; extension to 10 degrees, considering pain; right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. The Veteran had significant pain and functional impairment of the cervical spine, as well as localized tenderness or pain to palpation, guarding or muscle spasm, and abnormal spinal contour. Neurologically, examiner found that the Veteran had no left (minor) upper extremity radiculopathy, and severe right (major) upper extremity radiculopathy of the upper radicular group. The examiner diagnosed degenerative joint disease of the lumbar spine and neck. After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that the preponderance of the evidence shows that initial disability evaluations in excess of 20 percent from February 18, 2003 to April 13, 2011 for a lumbar strain with degenerative disc disease; in excess of 40 percent as of April 14, 2011 for a lumbar strain with degenerative disc disease; and in excess of 30 percent for degenerative disc disease of the cervical spine are not warranted. In this regard, the Board finds that, from February 18, 2003 to April 13, 2011, the Veteran's lumbar spine disability was manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, based on his forward flexion to 45 degrees at his September 2004 VA examination. From February 18, 2003 to April 13, 2011, the Veteran did not have flexion of the thoracolumbar spine of 30 degrees or less, or ankylosis; therefore, a higher rating is not warranted. Furthermore, a rating in excess of 20 percent is not for application under the former (i.e., pre-September 26, 2003) rating criteria. In addition, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the evidence does not show severe limitation of motion of the lumbar spine from February 18, 2003 to April 13, 2011, as is required for a 40 percent rating under Diagnostic Code 5292. Similarly, the evidence does not show a severe lumbosacral strain from February 18, 2003 to April 13, 2011, as is required for a schedular rating in excess of 20 percent under former Diagnostic Code 5295. As of April 14, 2011, the Veteran's lumbar spine disability was manifested by favorable ankylosis of the entire thoracolumbar spine, based on the findings of the April 2011 and July 2013 VA examiners. The ankylosis was not unfavorable because it was not shown to result 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. In the absence of a finding of unfavorable ankylosis, a rating higher than the assigned 40 percent is not warranted. Furthermore, a higher rating is not for application under the former (i.e., pre-September 26, 2003) rating criteria because the Veteran's 40 percent rating for a lumbar spine disability represents the highest schedular rating available under Diagnostic Codes 5292, for limitation of motion of the lumbar spine, and 5295, for lumbosacral strain. Moreover, separate ratings for Diagnostic Codes 5292 and 5295 are not for application because the evaluation of the same manifestation under different diagnoses is to be avoided. 38 C.F.R. § 4.14. Throughout the pendency of the appeal, the Veteran's cervical spine was manifested by forward flexion to 15 degrees or less, based on the September 2004 VA examiner's finding of forward flexion to 15 degrees. A higher rating is not warranted because ankylosis of the cervical spine has not been shown. Furthermore, a higher rating under the former (i.e., pre-September 26, 2003) rating criteria is not for application because the Veteran's 30 percent rating represents the highest schedular rating under Diagnostic Code 5290, for severe limitation of motion of the cervical spine. The Board has also considered the Veteran's reports of pain throughout his ranges of motion, but finds that his overall level of functional impairment described above results in no higher ratings being warranted. In reaching this determination, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet. App. at 205-06. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. Here, given the Veteran's overall ranges of motion described above, the Boards finds that the preponderance of the evidence is against entitlement to still higher evaluations based on limitation of motion. As discussed above, the Veteran denied the existence of flare-ups in his September 2004 examination; furthermore, the February 2007 examiner found no evidence of pain on range of motion examinations. Consequently, the Board finds that a higher rating is not warranted by the Veteran's level of functional impairment. Id. As discussed above, the General Rating Formula for Diseases and Injuries of the Spine, at Note (1), contemplates additional ratings, as applicable, for any associated objective neurologic abnormalities. The Veteran is currently in receipt of separate ratings for right and left lower extremity neuropathy associated with his lumbar strain with degenerative disc disease, rated at 10 percent each as of October 12, 2007, and at 40 percent each as of April 14, 2011. The Veteran is also in receipt of separate ratings for right and left upper extremity neuropathy associated with degenerative disc disease of the cervical spine, rated at 10 percent each as of October 12, 2007. The Board finds that the evidence does not support a higher rating for the Veteran's bilateral lower extremity neuropathy associated with his lumbar strain with degenerative disc disease. Although the July 2013 VA examiner found severe radiculopathic symptoms in the Veteran's left lower extremity-e.g., numbness and paresthesias and/or dysthesias-such findings cannot provide the basis for a rating higher than 40 percent because the examiner also found that the Veteran does not have muscular atrophy, which is a criteria for the next higher rating of 60 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520. An 80 percent rating is also not warranted because the Veteran has not shown complete paralysis of the sciatic nerve. Id. The Board further finds that the evidence does not support a higher rating for the Veteran's left (minor) upper extremity radiculopathy associated with his degenerative disc disease of the cervical spine. Specifically, the July 2013 VA examiner found no left upper extremity radiculopathy. However, the Board finds that the evidence does support an increase in the Veteran's disability rating for his right (major) upper extremity radiculopathy from 10 percent to 50 percent as of July 15, 2013, the date of the examination in which the VA examiner ascertained that the Veteran's right upper extremity upper radicular group pain, numbness, and paresthesias and/or dysthesias were all severe. 38 C.F.R. § 4.124a, Diagnostic Code 8510. The Board finds that a still higher 70 percent rating is not warranted because the Veteran has not shown complete paralysis of the upper radicular group. Id. 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 is permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board finds that no additional staged ratings beyond those assigned above are warranted. In exceptional cases an extraschedular rating may be provided. 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 extra-schedular 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 extra-schedular 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). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's lumbar spine, cervical spine, and associated bilateral upper and lower extremity radiculopathy disabilities, which include pain and limited motion. The rating criteria are therefore adequate to evaluate those disabilities, and referral for consideration of an extraschedular rating is not warranted. In summary, the Board finds that the symptoms attributable to the Veteran's lumbar spine, cervical spine, and associated bilateral upper and lower extremity radiculopathy disabilities are neither exceptional nor unusual, and thus do not warrant referral for an extraschedular rating. Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Since the Veteran is already in receipt of a TDIU due to service-connected disabilities as of October 12, 2007, the question for consideration is whether a TDIU due to service-connected disabilities is warranted during the appellate period prior to that date. The Board finds that a TDIU is not warranted prior to October 12, 2007. Although the Veteran asserted at his September 2004 VA examination that he was unemployable in part because of his back and neck pain, the Board finds that his assertion lacks credibility, particularly in light of the February 2007 VA examiner's finding that the Veteran was able to exhibit range of motion to a significantly greater extent than reported, such as when bending down to pick something up off of the floor. Consequently, a TDIU prior to October 12, 2007 is not warranted. ORDER An evaluation in excess of 20 percent from February 18, 2003 to April 13, 2011 for a lumbar strain with degenerative disc disease is denied. An evaluation in excess of 40 percent as of April 14, 2011 for a lumbar strain with degenerative disc disease is denied. An evaluation in excess of 30 percent for degenerative disc disease of the cervical spine is denied. Effective July 15, 2013, a 50 percent rating, and no higher, for right upper extremity neuropathy associated with degenerative disc disease of the cervical spine is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs