Citation Nr: 1337992 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-40 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for neuropathy of the left and right upper extremities. 3. Entitlement to initial disability ratings higher than 20 percent from February 22, 2009 and 30 percent from December 28, 2010 to August 22, 2012 for degenerative joint and disc disease of the cervical spine. 4. Entitlement to disability rating higher than 30 percent from August 22, 2012 for degenerative joint and disc disease of the cervical spine. 5. Entitlement to a separate initial rating for neurological manifestations due to the degenerative joint and disc disease of the cervical spine. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to January 1974. He also had National Guard service in the 1980s and 1990s. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Cheyenne, Wyoming Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a November 2009 rating decision, the RO denied service connection for a back disability and for left and right ulnar neuropathy. In a September 2010 rating decision, the RO granted service connection, effective February 22, 2009, for a back disability, described as degenerative joint and disc disease of the cervical spine. The RO assigned a 20 percent disability rating. In a June 2011 rating decision, the RO increased the rating for the back disability to 30 percent, effective December 28, 2010. In that rating the RO also denied entitlement to a TDIU. In October 2011, the Veteran had a videoconference hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing is in the Veteran's claims file. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. The issues of service connection for neuropathy of the left and right upper extremities, entitlement to disability rating higher than 30 percent from August 22, 2012 for degenerative joint and disc disease of the cervical spine, and entitlement to a separate initial rating for neurological manifestations due to the service-connected degenerative joint and disc disease of the cervical spine are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The chronic headaches are caused by and are proximately due to the service-connected degenerative joint and disc disease of the cervical spine. 2. From February 22, 2009, to December 27, 2010, the service-connected degenerative joint and disc disease of the cervical spine has been manifested by pain and limitation of motion, without incapacitating episodes, limitation of forward flexion to 15 degrees or less, or ankylosis. 3. For the entire appeal period, the service-connected degenerative joint and disc disease of the cervical spine has been manifested by pain and limitation of motion, without incapacitating episodes, ankylosis, or disability consistent with unfavorable ankylosis. 4. The Veteran's service-connected disabilities consist of post traumatic stress disorder which is rated at 70 percent, degenerative joint and disc disease of the cervical spine which is rated at 30 percent, fungus of the right hand and right forearm which is rated at 10 percent, and burns of the left arm which is rated at zero percent and his combined rating is 80 percent. 5. The Veteran is able to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of doubt, the criteria for service connection for chronic headaches are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. From February 22, 2009, to December 27, 2010, the criteria for a disability rating higher than 20 percent for the service-connected degenerative joint and disc disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2013). 3. For the entire appeal period, the criteria for a disability rating higher than 30 percent for the service-connected degenerative joint and disc disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243. 4. The criteria for a total rating based on individual unemployability due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. The RO provided the Veteran with VCAA notice in letters issued in April 2009, September 2009, October 2010, January 2011, and July 2012. In those letters the RO addressed the information and evidence necessary to substantiate claims for service connection, increased disability ratings, and a TDIU. The RO informed the Veteran how VA assigns effective dates. The letters also addressed who was to provided the evidence. In the October 2011 Board videoconference hearing, the undersigned AVLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The Veteran's claim file (including information on paper and in electronic form) contains service treatment records, records of post-service treatment and examinations, statements from the Veteran and persons who know him, and a transcript of the October 2011 Board hearing. The Veteran has had VA medical examinations that adequately address the claims that the Board is deciding at this time. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is deciding at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Headaches Legal Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or for aggravation of a non-service-connected disease or injury by a service-connected disease or injury. 38 C.F.R. § 3.310. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Headaches are not among the "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) is not applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2013); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Pursuant to 38 C.F.R. § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Reserve service and National Guard service generally include periods of active duty or training (ACDUTRA) and/or inactive duty for training (INACDUTRA). This generally refers to the two weeks of annual training that each National Guardsman must perform each year, or, in some cases, an initial period of training. For purposes of eligibility for service connection and disability compensation, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a) (2013). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002). Service connection requires competent evidence showing, (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran reports that he has chronic headaches. He essentially contends that the current headaches were caused by injury during National Guard service, or are caused or aggravated by his service-connected cervical spine disability. During the Veteran's National Guard service his activities included parachute jumping. Service treatment records show that he sustained a right fibula fracture in a military parachute jump in 1988. Records in the claims file also show that the Veteran was in a motor vehicle accident (MVA) in 2007. In claiming service connection for back disability, the Veteran contended that the back disability was attributable to parachute jumping in National Guard service. Private and VA clinicians provided opinions that injuries of the Veteran's cervical spine during National Guard service likely contributed to causing the Veteran's cervical spine disorders. The RO granted service connection for cervical spine disability. When the Veteran was examined for entrance into his 1970 to 1974 period of active service, he reported a history of a concussion during grade school, but checked no for any history of frequent or severe headache. The examiner checked normal for the condition of the Veteran's head and neurologic systems. During service, in March 1973, the Veteran reported having headaches with a cold. On his service separation examination in January 1974, the examiner checked normal for the condition of his head and neurologic systems. Records from the Veteran's National Guard service in the 1980s and 1990s do not reflect any complaints of headaches. The claims file contains records of private treatment of the Veteran in 2008 and 2009. The Veteran consulted neurologist R. C. S., M.D., in February 2008. The Veteran reported having been in an MVA in June 2007. He stated that he was driving a loaded semi-trailer truck, and an oncoming sport utility vehicle crossed the midline and struck his truck. He related that he was not knocked unconscious. He indicated that he had a headache and neck pain after the accident. He reported that the day after the accident he consulted a chiropractor, who stated that his back and neck were 'out.' He related ongoing back and neck pain and headaches. He indicated that before the MVA he had history of surgery on his neck. In March 2008, the Veteran reported ongoing neck and head pain. He stated that before the 2007 MVA he had sinus problems. He indicated that, since a sinus surgery many years earlier, he had rarely had headaches, until the MVA. In May 2008, the Veteran stated that he had numbness and pain in both hands, up the arm to the back of his neck. He reported that he had daily headaches. He indicated that he had no loss of strength, but that he often dropped things. In July 2008, the Veteran reported ongoing headache and neck pain. Dr. S. stated that the symptoms the Veteran described as headache were actually upper cervical spine pain. In September 2008, the Veteran related daily headaches, as well as ongoing neck and shoulder pain and tightness. In VA outpatient treatment in November 2008, the Veteran reported a two day history of headache, with pain at the base of his neck radiating to the frontal region bilaterally. The treating clinician's impression was muscular sounding headache, without alarm symptoms. In February 2009, the Veteran reported having his typical baseline headache. He denied having neck pain or stiffness. Under differential diagnosis, the treating clinician indicated that the Veteran's headache was likely due to uncontrolled hypertension, but that there might also be a component of tension headache, and there was a prior history of neck trauma. In February 2009, private chiropractor R. C. B., D.C., wrote that the Veteran had chronic upper dorsal and cervical region muscle tightness and chronic headaches. Dr. B. stated that the Veteran had hand numbness that originated from his cervical and thoracic spine. Dr. B. indicated that the Veteran had cervical and thoracic spine degenerative joint disease and degenerative disc disease. Dr. B. expressed the opinion that some of the Veteran's spinal problems can be attributed to his active duty service and National Guard service. In a February 2009 claim, the Veteran asserted that parachute jumping and other strenuous physical duties in service caused cervical spine injury with current symptoms of cervical spine pain, chronic headaches, and numbness into the hands. In VA outpatient treatment in March 2009, the Veteran related reduced but ongoing headaches. He expressed the belief that his headaches were related to cervical spine injury from parachute jumping in National Guard service. He indicated that he also had an MVA in 2007, but did not feel that the MVA was the greater factor in causing the cervical spine disorder. He stated that recent cervical spine MRI showed a lot of old damage. On VA medical examination in August 2010, the examiner reported having reviewed the Veteran's claims file. The Veteran reported having had headaches for three or four years, and more severe and persistent headaches for about two years. He stated that the headaches started in the back of his head and radiated into his neck and shoulders. The examiner listed a diagnosis of chronic headaches. The examiner was asked to provide an opinion as to the likelihood that the Veteran's headaches are related to his cervical spine arthritis and disc disease. The examiner stated that she could not resolve that issue without resorting to mere speculation. The examiner explained: While degenerative disease of the cervical spine can contribute to tension type headaches in terms of muscle tension and pain, it seems that the headaches started after the motor vehicle accident in which he evidently sustained a whiplash injury. In statements in support of his claim, the Veteran has continued to assert that his cervical spine disorders cause his headaches. On VA examination in August 2012, the Veteran reported that he continued to have headaches secondary to constant neck pain. The Veteran has not stated, and medical records do not show, that he had frequent or severe headaches during his active service in the 1970s or his National Guard service in the 1980s and 1990s. The preponderance of the evidence thus is against his current headaches having become manifest during service. The Veteran contends that his current chronic headaches are related to his service-connected cervical spine disorder. There is medical evidence which weighs for and against the claim for service connection. The claim appears to be supported by a 2008 statement of the Veteran's treating neurologist, Dr. S., indicating that the Veteran's headaches were actually part of his cervical spine pain. The VA nurse practitioner who examined the Veteran in 2010 found that it impossible to opine as to the likely etiology of the Veteran's headaches. She noted that cervical spine disease could contribute to headaches, but that it seemed that the Veteran's headaches started after his 2007 MVA. At other times clinicians indicated that the Veteran's headaches might be tension headaches or might be related to hypertension. The Board finds that there is probative medical evidence which supports the Veteran's claim. Dr. S. found that the Veteran's perceived headaches are part of his neck disorder symptoms. Because Dr. S. has relevant expertise, as a neurologist, and because has treated the Veteran and thus is familiar with his case, his statements have significant persuasive weight. No physician has explicitly opined that the Veteran's headaches are not related to his cervical spine disorders. The VA examiner found there was insufficient information to reach an opinion. The evidence in favor of a relationship between service-connected cervical spine disability and current chronic headaches thus at least balances the evidence against such a relationship. Resolving reasonable doubt in the Veteran's favor, the Board grants service connection for chronic headaches. The appeal is granted. Entitlement to a Higher Initial Rating for a Cervical Spine Disability The RO has assigned disability ratings of 20 percent from February 22, 2009, and 30 percent from December 28, 2010 to the service-connected degenerative joint and disc disease of the cervical spine. The Veteran appealed the initial and subsequent ratings for his spine disability. The Board will review the evidence for the entire period since February 22, 2009, and consider whether higher ratings are warranted for any period. The issues of entitlement to disability rating higher than 30 percent from August 22, 2012 for degenerative joint and disc disease of the cervical spine, and entitlement to a separate initial rating for neurological manifestations due to the service-connected cervical spine disability are addressed in the REMAND portion of the decision below. Legal Criteria VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). The rating schedule provides for evaluating spine disorders, including degenerative arthritis, under a General Formula Rating Formula for Diseases and Injuries of the Spine, as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine ................... 100 percent Unfavorable ankylosis of the entire thoracolumbar spine ... 50 percent 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 .............................. 40 percent Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine .......................... 30 percent 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 ....... 20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height ..................................................................... 10 percent 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. 38 C.F.R. § 4.71a. Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months ............................ 60 percent With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months .. 40 percent With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months .. 20 percent With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months ...... 10 percent 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 bed rest 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. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.71a. Factual Background and Analysis Records of private treatment of the Veteran in 2008 and 2009 reflect reports of chronic neck pain. In treatment in February 2008 with neurologist Dr. S, the Veteran reported a history of neck surgery. In March 2008, Dr. S. found that MRI showed bulging discs and disc space narrowing at C4-C5, C5-C6, and C6-C7, narrowing of the right C5-C6 intervertebral foramen and the left C6-C7 intervertebral foramen. In February 2009, the Veteran's chiropractor, Dr. B., stated that the Veteran had degenerative joint disease at C4, C5, C6, and C7, with anterior osteophyte formation, and had moderate to severe degenerative disc disease at C4-C5, C5-C6, C6-C7, and C7-T1. On VA examination in August 2010, the Veteran reported stiffness in his neck. He did not report having had any incapacitating episodes in the preceding twelve months. He stated that he continued to work despite neck pain and stiffness. The examiner found no tenderness on palpation of the cervical spine and no evidence of muscle spasm. The ranges of motion of the cervical spine were to 32 degrees of forward flexion, 60 degrees of extension, 25 degrees of lateral flexion to the left and 35 degrees to the right, and 45 degrees of rotation to the left and 35 degrees to the right. After repetition of motions, the ranges were to 35 degrees of forward flexion, 52 degrees of extension, 30 degrees of lateral flexion to the left and 25 degrees to the right, and 40 degrees of rotation to the left and 35 degrees to the right. The examiner did not find evidence of pain with motion, spasms, weakness, or tenderness. Vibratory sensation in both hands was normal. In a statement the RO received on December 28, 2010, the Veteran wrote that he worked driving a truck, and that he was advised not to drive while using the pain medication prescribed for his spine pain. In January 2011, the Veteran stated that if he turned his neck too far he got numbness, followed by persistent pain, in his left arm. On VA examination in February 2011, the Veteran reported having fairly severe daily neck pain at a severity of 6 to 7 on a scale of 10. He related having flare-ups of very severe pain that occurred weekly and lasted hours. He stated that he had stiffness, limited motion, neck and back pain, radiation of pain and arm pain. The Veteran indicated that he had neck pain with radiation into the bilateral shoulders and arms. He stated that he was self-employed driving a truck that he owned. He indicated that he was not able to take medications as prescribed for his spine pain and continue to drive the truck. The examiner observed evidence of pain with motion of the cervical spine, starting immediately with any movement. Motion was limited to 20 degrees of forward flexion, 18 degrees of extension, 16 degrees of lateral flexion to the each side, and 32 degrees of rotation to the left and 30 degrees to the right. Pain started immediately with movement. In the October 2011 Board videoconference hearing, the Veteran stated that he worked as the owner and operator of a truck. He indicated that he drove a tanker truck and that his tasks included lifting and handling hoses. He stated that his neck disability made it difficult to lift hoses. He reported that he had difficulty turning his neck when driving. The evidence from February 22, 2009, through December 27, 2010, indicates that the Veteran's cervical spine was not limited to 15 degrees or less of forward flexion and was not in ankylosis, even with consideration of pain on motion and greater limitation after repetition. His cervical spine disc disease did not produce incapacitating episodes. His cervical spine disability thus did not meet the criteria for a rating higher than the 20 percent rating that was assigned. The Veteran's cervical spine disability, with consideration of pain with motion and decreased motion after repetition, has not been manifested by impairment consistent with unfavorable ankylosis. That disability therefore has not warranted a rating higher than the 30 percent rating assigned from December 28, 2010, forward. The Board has considered whether referral for an extraschedular evaluation is warranted for service-connected cervical spine disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's cervical spine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. As discussed, the Veteran's symptoms and functional limitations due to the cervical spine disability are contemplated by the rating schedule, and the assigned schedular evaluations, therefore, are adequate. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria for spine disabilities contemplate limitation of motion of the spine and symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The schedular rating criteria, the General Rating Formula for Diseases and Injuries of the Spine and the formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, specifically provide for disability ratings based on limitation of motion (flexion and combined ranges of motion, including ankylosis), including due to pain and other orthopedic factors which are incorporated into the schedular rating criteria (see 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59; DeLuca), other objective findings such as muscle spasm, tenderness, altered gait, abnormal spinal contour, and loss of height of vertebral body. The schedular rating criteria also provide for separate ratings for objective neurological manifestations. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. The Veteran has reported that his neck disability interferes with his employment driving a truck. He states that the neck disability limits his ability to turn his head, and that medication that would address neck pain is not safe to use when driving a truck. The ratings the RO has assigned in this case are higher than are warranted based on limitation of motion shown on examinations. It thus appears that the assigned ratings take into consideration the extent to which the Veteran's neck disability has interfered with his usual occupation as a truck driver. As the assigned ratings appear to be calculated to address the effects of the Veteran's neck disability on employment, it is not necessary to refer the ratings for that disability for further consideration of extraschedular ratings. The Court has indicated that in claims for increased ratings the Board must consider whether the record indirectly raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has directly raised the issue of unemployability in his claim for a TDIU, which the Board addresses in this decision. Entitlement to Total Disability Rating based on Individual Unemployability The Veteran contends that his service connected disabilities make him unemployable. VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities are post-traumatic stress disorder (PTSD), rated at 70 percent, cervical spine disability, rated at 30 percent, fungus on the right hand and forearm, rated at 10 percent, and left arm burns, rated at 0 percent. The combined rating is 80 percent. In addition, the RO will assign a rating for the chronic headaches, for which the Board has granted service connection in this decision. Even before that rating is assigned, the Veteran's ratings meet the criteria under 38 C.F.R. § 4.16(a). A TDIU therefore is warranted if the combined effects of his service-connected disabilities make him unable to secure or follow a substantially gainful occupation. The findings of VA examiners support a conclusion that the Veteran's service-connected disabilities make him unemployable. In a February 2011 VA mental health examination, the examiner provided an opinion regarding the effects of the Veteran's PTSD, as follows: [The] veteran is suffering significant impairments in the realms of social functioning and quality of life. He has maintained self-employment as a truck driver primarily because it requires little interactions with others, but I doubt he would be able to maintain employment in any setting that required anything more than minimal interactions with others due to conflict secondary to PTSD symptoms of hypervigilance and irritability. A VA clinician who examined the Veteran in February 2011 and provided findings regarding his cervical spine disability provided the opinion that the spine disability made him unable to do physically demanding work, but would not keep him from obtaining sedentary employment. The clinician then noted the examining psychologist's findings, that the Veteran's PTSD limited him to employment with limited social interaction. In that light, the clinician expressed the opinion that the combined effects of the Veteran's cervical spine disability and his PTSD made it at least as likely as not that he would not find substantial employment. However, despite the impairment caused by the service-connected disabilities, the record shows that the Veteran is employed in substantially gainful employment. At the time the Veteran submitted his TDIU claim, he reported being employed as truck driver. In the January 2011 application, the Veteran reported that he earned $2500 a month in this position. He has not submitted evidence that he is no longer able to be employed in this occupation. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a) (2013). The poverty thresholds for one person, as established by the U.S. Department of Commerce, Bureau of the Census, is $10,788 for 2011. The Veteran's income exceeds the poverty thresholds in 2011. Since the Veteran is employed in a substantially gainful occupation, the criteria for a total rating based on individual unemployability due to service-connected disabilities have not been met. As a preponderance of the evidence is against the award of a total disability rating based on individual unemployability due to service-connected disabilities, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Accordingly, the appeal is denied. ORDER Entitlement to service connection for chronic headaches is granted. Entitlement to an initial disability rating higher than 20 percent from February 22, 2009, to December 27, 2010, for degenerative joint and disc disease of the cervical spine, is denied. Entitlement to an initial disability rating higher than 30 percent for degenerative joint and disc disease of the cervical spine prior to August 22, 2012 is denied. Entitlement to a total disability rating based on individual unemployability is denied. REMAND The Board finds that additional development and procedural action are necessary before the claim of entitlement to an increased rating for the cervical spine disability from August 22, 2012 can be decided on the merits. The Veteran filed a claim for an increased rating for the cervical spine disability on August 22, 2012 and additional development was done by the RO. The claims file and the Veteran's virtual VA file now contain additional medical evidence regarding treatment and evaluation of the cervical spine disability. RO adjudicators have not yet reviewed the newly-added evidence. Additionally, as discussed below, the Board deems that another VA examination is necessary to evaluate the Veteran's claimed neurological disorder of the upper extremities. The Veteran contends that he has neuropathy of the left and right upper extremities secondary to his service-connected cervical spine degenerative arthritis and disc disease and service connection is warranted. The issue of entitlement to a separate rating for objective neurologic abnormalities due to the cervical spine disability is also before the Board and must be addressed. The Board finds that development of additional evidence is necessary. Medical treatment records reflect the Veteran's reports of symptoms involving both hands, including numbness, pain, and frequent dropping of objects. Testing has shown signs of neuropathy in the upper extremities. The Veteran asserts that the neuropathy is related to his service-connected cervical spine disorders. The file contains mixed evidence regarding the etiology of the neuropathy. In a VA examination in August 2010, the examiner opined that the Veteran's upper extremity neuropathy originated from the elbow, and not the spine, and thus was not related to the service-connected cervical spine disability. In an August 2012 VA examination, the examiner found that the Veteran's cervical spine disorders were manifested by upper extremity radiculopathy. These apparently contradictory conclusions leave questions regarding the likelihood that current upper extremity neuropathy is proximately due to or the result of cervical spine arthritis and disc disease. To obtain review and clarification, the Board will remand the issue for a new VA examination and file review by a physician, with opinion regarding the issue on appeal. The RO should contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent VA or non-VA treatment records showing treatment of the cervical spine disability and the claimed neurological disorder of the upper extremities. The RO should make an attempt to obtain any treatment records identified by the Veteran that are not currently associated with the claims file. The record shows that the Veteran receives treatment for the claimed neurological disorder of the upper extremities from the VA Healthcare System. The RO should obtain the VA treatment records for treatment of the claimed disorder dated from September 2013. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by VA or non-VA health care providers for the cervical spine disability since August 2012 and the claimed neurological disorder of the upper extremities for the entire appeal period. If the Veteran provides the necessary information and authorizations, obtain legible copies of any outstanding clinical records and incorporate them into the claims file. 2. Obtain any pertinent VA treatment records showing treatment for the cervical spine disability and the claimed neurological disorder of the upper extremities from the VA Healthcare System dated from September 2013 to the present. 3. Schedule the Veteran for a VA neurological examination of the cervical spine and upper extremities. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. All clinical findings should be reported in detail and the examiner should report all current neurologic diagnoses pertinent to the cervical spine and upper extremities. The examiner should report all neurological symptoms and manifestations due to the service-connected cervical spine disability. The examiner should indicate whether any diagnosed neurological disorder of the upper extremities is a neurological manifestation of the service-connected cervical spine disability or is otherwise caused by the service-connected cervical spine disability. For any neurologic manifestations or neurological disorder of the upper extremities found, the examiner should indicate if the disorder results in partial or complete paralysis, neuralgia or neuritis of any nerve; specify the nerve involved; and indicate if the disorder causes mild, moderate or severe impairment or disability. The VA examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any the current neurological disorder of the upper extremities had its onset during service or is otherwise due to injury or other event of active service. The examiner should opine whether it is at least as likely as not that any current neurological disorder of the upper extremities is aggravated by the service-connected cervical spine disability. If aggravation is found, the examiner should indicate the degree of disability of the disability before it was aggravated and its current degree of disability, to the extent possible. The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 4. After the development requested above has been completed, readjudicate the issues of entitlement to a disability rating greater than 30 percent for cervical spine disability from August 22, 2012, entitlement to a separate rating for objective neurologic manifestations due to the cervical spine disability (for the entire appeal period), and entitlement to service connection for a neurological disorder of the upper extremities in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and representative, and they should be afforded a reasonable opportunity for response. Thereafter, return the case to the Board for appellate review if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. L. Krasinski Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs