Citation Nr: 1338680 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-20 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected low back disability. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to a disability rating in excess of 10 percent for mild disc narrowing with arthritis and cervical spine intervertebral disc syndrome, status-post cervical discectomy (neck disability or cervical spine disability). 4. Entitlement to a disability rating in excess of 10 percent for incomplete paralysis of the right upper extremity. 5. Entitlement to a separate disability rating for incomplete paralysis of the left upper extremity. 6. Entitlement to a separate disability rating for a neck scar, status-post cervical spine discectomy. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to October 1984, and from December 2003 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. As noted on the cover page of the decision, the Board has included the issues of whether the Veteran is entitled to separate disability ratings for incomplete paralysis of the left upper extremity and a neck scar. In light of the rating criteria regarding disabilities of the spine that specifically direct consideration of neurological manifestations of a spine disability when assigning a rating, as well as the evidence showing a neck scar related to his in-service surgery, the Board finds these claims are part and parcel to the claim of entitlement to an increased rating for a cervical spine disability with incomplete paralysis of the right upper extremity. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issues of entitlement to service connection for a bilateral foot disability and sleep apnea 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. Prior to October 15, 2012, the Veteran's cervical spine disability was manifested by forward flexion no worse than 34 degrees; combined range of motion of the cervical spine of less than 170 degrees; but no evidence of ankylosis; or incapacitating episodes of at least four weeks, but less than six weeks in the past 12 months. 2. Beginning October 15, 2012, the Veteran's cervical spine disability was manifested by forward flexion no worse than 45 degrees; combined range of motion between 170 degrees and 335 degrees; but no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of at least two weeks, but less than four weeks in the past 12 months. 3. For the entire timeframe on appeal, the Veteran's incomplete paralysis of the right upper extremity is no more than mild in nature. 4. The Veteran's incomplete paralysis of the left upper extremity was not manifested prior to October 15, 2012, and from that time was no more than mild in nature. CONCLUSIONS OF LAW 1. Prior to October 15, 2012, the criteria for a 20 percent rating for a neck disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2013). 2. Beginning October 15, 2012, the criteria for a rating in excess of 10 percent for a neck disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2013). 3. The criteria for a rating in excess of 10 percent for incomplete paralysis of the right upper extremity are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8516 (2013). 4. Resolving all doubt in the Veteran's favor, the criteria for separate 10 percent disability rating for incomplete paralysis of the left upper extremity, beginning October 15, 2012, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8516 (2013). 5. The criteria for a separate 10 percent disability rating for a neck scar, status-post cervical discectomy, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.71(a), 4.118, Diagnostic Codes 7800-7805 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in August 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations most recently in October 2012, with an addendum opinion dated that same month. The VA examination reports are thorough and supported by the other treatment evidence of record. The examination reports discussed the clinical findings and the Veteran's reported history as necessary to rate the disabilities under the applicable rating criteria. The examination report also discussed the impact of the disabilities on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the October 2012 examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, as in this case, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. See Fenderson v. West, 12 Vet. App. 119 (1999). In Hart v. Mansfield, 21 Vet.App. 505 (2007), however, the Court held that "staged" ratings are appropriate for an increased rating claim in such a case, when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Veteran's cervical spine disability has evaluated under the general rating formula for disease and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 The general rating formula is 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 Unfavorable ankylosis of the entire thoracolumbar spine......50 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 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine..........................................................30 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 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 Normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right rotation are 0 to 80 degrees. The normal combined range of motion for the cervical spine is 340 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). Intervertebral disc syndrome (IVDS) is 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 when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 8516, complete paralysis of the ulnar nerve includes the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. 38 C.F.R. § 4.124a, Diagnostic Code 8516 (2013). For incomplete paralysis, which is the case here, a 10 percent rating is assigned for a mild disability of either the dominant or non dominant hand; a 20 percent rating is assigned for a "moderate" disability afflicting the minor, or non-dominant, hand; a 30 percent rating is assigned for "moderate" disability afflicting the major, or dominant hand; a 30 percent rating is assigned for a "severe" disability afflicting the non-dominant hand; and a 40 percent rating is assigned for a "severe" disability afflicting the dominant hand. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2013). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Factual Background and Analysis The Veteran contends that his cervical spine disability and incomplete paralysis of the right upper extremity warrant a rating in excess of 10 percent each. By way of background, the RO originally awarded service connection for a neck disability with paralysis of the right middle finger (ulnar nerve) in a January 2007 rating decision. A 10 percent rating was assigned for each disability, effective May 16, 2006. The Veteran filed his claim for an increased rating in August 2009. In a July 2009 VA treatment note, the Veteran had an EMG/NCS that revealed possible radiculopathy of the cervical spine (C5-7) and mild to moderate carpal tunnel syndrome on the right. Following his claim for increased ratings, the Veteran was afforded a VA examination in September 2009. He reported numbness of the right middle finger with tingling of the skin and a burning sensation. Motor function testing was within normal limits for both upper extremities. Sensory function testing was within normal limits except for the two point discrimination testing on the right. The examiner indicated this impacted the ulnar nerve. The examiner indicated that this was secondary to the Veteran's service-connected neck disability, but only mildly impacted his usual occupation and daily activities. Turning to the VA examination of the spine, the Veteran was noted to have a history of a neck fusion (C6-5) with current reports of moderate neck pain and stiffness. He did not report any neck weakness. He reported daily flare-ups of moderate to severe neck pain, lasting an hour or longer, that moderately impair his daily activities. Physical examination revealed normal gait, position of the head, and curvatures of the spine. Posture and symmetry of the neck was abnormal as his left shoulder is slightly higher than his right shoulder. The examiner specifically found no evidence of ankylosis of the cervical spine. Range of motion testing revealed forward flexion from 0 to 34 degrees, extension from 0 to 25 degrees, left lateral flexion from 0 to 25 degrees, right lateral flexion from 0 to 20 degrees, left lateral rotation from 0 to 25 degrees, and right lateral rotation from 0 to 42 degrees. The combined range of motion in the cervical spine was 171 degrees. The examiner found objective evidence of painful motion, but no evidence of fatigue, weakness, lack of endurance, or incoordination both before and following repetitive testing. Moreover, there was no evidence of spasm, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement in the cervical spine. Following repetitive testing, there was no change of range of motion except as to flexion that was now 0 to 22 degrees. After repetitive testing, the combined range of motion in the cervical spine was to 168 degrees. The examiner noted signs of IVDS in the cervical spine, but no motor impairment. He did note some sensory impairment. The examiner found no evidence of abnormalities sin upper extremity motor function. Sensory examination was normal in the left upper extremity, but abnormal in the right upper extremity evidenced by abnormal pinprick, temperature, and two point discrimination testing. The examiner indicated that the Veteran did not have any incapacitating episodes in the past 12 months and reflexes in both upper extremities are normal. The examiner diagnosed the Veteran as having status-post discectomy, mild narrowing, cervical spine with residual degenerative arthritis of the cervical spine and scarring, and cervical spine IVDS involving the right ulnar nerve secondary to the cervical fusion. A September 2009 podiatry treatment note shows that the Veteran complained of sharp, bilateral foot pain that is aggravated by walking. The treating professional noted that the "injections lasted about two days for pain control." No specific foot disability was diagnosed at that time. In October 2012, the Veteran underwent another VA examination, during which he was diagnosed as having degenerative disc disease of the cervical spine with posteriorlisthesis. The Veteran currently complained of pain and paresthesias of both hands with numbness of the second finger of the right hand. He noted that this neck pain is increased with lateral motion to the left and in cold damp weather. The Veteran denied that flare-ups impact the function of his neck. Range of motion testing revealed forward flexion of the cervical spine form 0 to 45 degrees or greater and extension to 45 degrees or greater-both without objective evidence of painful motion. Right and left lateral flexion ends at 30 degrees in both directions with objective evidence of pain at 25 degrees. Right lateral rotation ends at 65 degrees, with objective evidence of pain at 60 degrees, and left lateral rotation ends at 60 degrees with objective evidence of pain at 55 degrees. Following repetitive motion, the Veteran did not have any additional limitation in ranges of motion, nor did he have any additional function loss and/or impairment of the cervical spine. Including the reduced range of motion due to pain, the Veteran's combined range of motion in the cervical spine was 255 degrees. The examiner found no evidence of pain on palpation, muscle spasm, or guarding. Muscle strength testing was within normal limits and without any atrophy of the muscles. Sensory examination and reflexes were also within normal limits. The examiner noted that the Veteran has evidence of radiculopathy in the bilateral upper extremities. He noted mild intermittent pain and paresthesias/dysesthesias in the bilateral upper extremities, and mild numbness in the right upper extremity. When asked to determine the severity of radiculopathy in the bilateral upper extremities, the examiner indicated that neither side was affected. Additionally, the examiner found no other neurological abnormalities related to his cervical spine disability. The examiner indicated that the Veteran did not have IVDS of the cervical spine. After diagnostic testing, including an EMG/NCS study, the examiner found that the results were abnormal inasmuch as they showed evidence of an old injury to the left C5-7 nerve root that is consistent with his known service-connected radiculopathy. He opined, however, that there is no evidence of current, active denervation (i.e. no current radiculopathy). Additionally, he opined that the Veteran's right sided carpal tunnel syndrome is resolved. The examiner also indicated that "the left ulnar F wave is prolonged in the face of normal motor and sensory responses on NCS, and normal left ulnar innervated muscles on EMG. This is most consistent with an injury to the left upper extremity, and appears to be a new finding since the [V]eteran's last NCS/EMG in 2009." Finally, the examiner found that the Veteran's neck disability does not impact his ability to work. Ultimately, the 2012 VA examiner diagnosed prior discectomy with anterior fusion C5-6 without interval change, degenerative disc disease C3-4 with posteriorlisthesis and degenerative disc disease C5-7, and mild narrowing of the neural foramina bilaterally. The Veteran was afforded a separate peripheral nerves VA examination in October 2012, during which he reported tingling in his left fifth and third fingers. He endorsed that when his neck pops, he will have shooting pain in his left neck that does not radiate. He denied any change in his symptoms of the right middle finger. The same assessment was made with regard to his neurological diagnoses. In an addendum dated late-October 2012, the examiner specifically indicated that the Veteran does not have an increased disability due to his IVDS of the cervical spine. She noted that the Veteran has no evidence of a current C5-6 radiculopathy on EMG. The examiner noted that the EMG revealed old findings consistent with this diagnosis, but no current radiculopathy or carpal tunnel syndrome (resolved). She found that the left ulnar innervated muscles as shown in the EMG are most likely secondary to his left olecranon spur. The Veteran continues to receive VA treatment for his neck and bilateral upper extremity disabilities. Upon careful review of the evidence of record, the Board finds that the Veteran is entitled to a 20 percent disability rating prior to October 15, 2012 for his cervical spine disability. A disability rating in excess of 10 percent for his cervical spine disability beginning October 15, 2012, is not warranted. The Veteran is also not entitled to a disability rating in excess of 10 percent for incomplete paralysis of the right upper extremity. The Board finds, however, that it would not be pyramiding to award a separate 10 percent rating for mild, incomplete paralysis of the left lower extremity, beginning October 15, 2012. Regarding the Veteran's degenerative disc disease of the cervical spine, the evidence of record shows that prior to October 15, 2012, the Veteran's combined range of motion in the cervical spine was only 168. The Board used the ranges of motion following repetitive testing as they are most advantageous to the Veteran and adequately represent his impairment prior to his October 15, 2012, VA examination. Prior to October 15, 2012, the evidence of record does not show any ankylosis of the cervical spine to warrant a rating in excess of 20 percent. The Board finds, however, that beginning October 15, 2012, the evidence of record does not show a limitation of forward flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees. In fact, at its worst, forward flexion of the cervical spine was to 45 degrees. Beginning October 15, 2012, the Veteran's combined range of motion in the cervical spine is greater than 170 degrees, but less than 335 degrees. At no time during the appeal period has the Veteran exhibited muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. As such, a 20 percent rating for his neck disability is warranted prior to October 15, 2012, but beginning October 15, 2012, his 10 percent rating is continued. The Board has also considered whether a higher evaluation is warranted pursuant to the criteria for rating intervertebral disc syndrome. At no time during the entire appeal period has evidence shown that bed rest was prescribed by a physician. As such, a higher rating pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation for the periods considered. As such, the Board finds that the currently assigned evaluations are appropriate for the Veteran's neck disability. The Board finds all reasonable doubt in the Veteran's favor and awards a 10 percent rating for incomplete paralysis of the left upper extremity, beginning October 15, 2012. During his October 15, 2012, VA examination, the clinical evidence showed that the Veteran had a sensory deficit in the left upper extremity. Beginning in October 15, 2012, the Veteran reported left upper extremity pain and numbness. The 2012 examiner indicated that he exhibited mild symptoms of radiculopathy in the left upper extremity. These were in the form of intermittent pain and paresthesias/dysesthesias. There is some indication that these symptoms may be due to his left shoulder disability (that is also service-connected). Nevertheless, given the consistent reports of intermittent pain and radiation in the left upper extremity, the Board finds all reasonable doubt in the Veteran's favor and a separate 10 percent disability rating is warranted for the left upper extremity for mild, incomplete paralysis of ulnar nerve from October 15, 2012. The Board is aware that the Veteran is currently in receipt of a 10 percent rating for his service-connected incomplete paralysis of the right upper extremity, but it finds that the evidence of record does not support a rating in excess of 10 percent. There is no indication during the period on appeal that the incomplete paralysis of the bilateral upper extremities is any more than mild in nature. Throughout the timeframe on appeal, sensory examinations were sometimes noted as normal, and at other times, there was decreased sensation in the right upper extremity. In general, the Veteran's motor examinations have revealed normal tone and strength in the bilateral upper extremities, with intermittent findings of sensory deficits and pain/paresthesias/dysesthesias. Although the Veteran is competent to describe radiating pain down his arms, the consistent lack of significant objective findings weighs against granting a separate rating in excess of 10 percent for either upper extremity. In other words, his symptoms of incomplete paralysis of the bilateral upper extremities are no more than mild in nature for the relevant timeframes on appeal. The Board has also considered whether the Veteran would be entitled to a separate rating for his discectomy neck scar. The Board finds that it would not be pyramiding to also award the Veteran as separate 10 percent rating for his neck scar. The evidence shows (as noted in the September 2009 VA examination report) that the Veteran has elevation or depression of the surface contour of the scar on palpation. This is considered a "characteristic of disfigurement" under the rating criteria for scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804. As such, a separate, 10 percent rating for his neck scar, but no higher is warranted. At no time during the appeal period did a physical examination or treatment records show that the Veteran has multiple neck scars that are painful or unstable, nor does he have more than one characteristic of disfigurement from his scar to warrant a higher rating under the applicable rating criteria. Id. For the foregoing reasons, the Board finds that the preponderance of the evidence is in favor of a 20 percent disability rating prior to October 15, 2012, for his neck disability, and a separate 10 percent ratings for his incomplete paralysis of the left upper extremity, beginning October 15, 2012, and for his neck scar for the entire appeal period. The preponderance of the evidence is against a disability rating in excess of 10 percent, beginning October 15, 2012, for his neck disability, and in excess of 10 percent for his incomplete paralysis of the right upper extremity. The preponderance of the evidence is against a disability rating in excess of 10 percent for each upper extremity during their respective timeframes on appeal. Additional Considerations The Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran has not contended that he is unemployable solely due to his service-connected cervical spine disability with incomplete paralysis of the upper extremities. Accordingly, the Board concludes that the issue of entitlement to TDIU is not presently before the Board. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected cervical spine disability with a scar and incomplete paralysis of the upper extremities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's cervical spine disability with a scar and incomplete paralysis of the upper extremities and the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports painful motion and intermittent pain and paresthesias/dysthesias in the bilateral upper extremities with numbness in the right upper extremity. As discussed above, the current ratings assigned are adequate to fully compensate the Veteran for these symptoms and are specifically contemplated by the rating criteria. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Prior to October 15, 2012, a 20 percent rating for a cervical spine disability is granted. A disability rating in excess of 10 percent, beginning October 15, 2012, for a cervical spine disability is not warranted. A disability rating in excess of 10 percent for incomplete paralysis of the right upper extremity is denied. A separate 10 percent rating, beginning October 15, 2012, for incomplete paralysis of the left upper extremity is granted. A separate 10 percent rating for a neck scar is granted. REMAND The Board finds that the low threshold for requirement for a VA examination has been met with respect to the Veteran's claims of service connection for a bilateral foot disability and sleep apnea, and the claims should be remanded for a VA examination. See 38 C.F.R. § 3.159(c)(4). The evidence shows that the Veteran has been treated for bilateral metatarsalgia, rule out tarsal tunnel syndrome, burning feet syndrome, and bilateral foot pain. He has used molded shoe liners and injections for treatment. Moreover, he now contends his symptoms in the bilateral feet are secondary to his service-connected lumbar spine disability. The Veteran has not been afforded a VA examination for this claimed disability. In a November 2008 VA treatment note, the Veteran reported being diagnosed as having mild sleep apnea while at Fort Leonard Wood in 2005. The evidence of record does not include any treatment records from Fort Leonard Wood dated in 2005 that may contain treatment for suspected sleep apnea. Moreover, the Veteran has contended that he experienced significant snoring and sinus problems during service and since, and he believes this and chemical/toxin exposure in Iraq caused his current sleep apnea. The Veteran has not been afforded a VA examination with respect to this disability either. In light of the above, the Board finds that the Veteran should be afforded the appropriate VA examinations to determine the nature and etiology of his claimed bilateral foot disability and sleep apnea. Accordingly, the case is REMANDED for the following action: 1. Obtain any and all pertinent VA and private treatment records that have not yet been associated with the claims file. Attempts should also be made to obtain any outstanding treatment records from Fort Leonard Wood, dated in 2005. 2. Following receipt of any new records, schedule the Veteran for an appropriate VA examination for his bilateral foot disorder. The claims file should be provided to the appropriate examiner for review, including the pertinent evidence contained in electronic format, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not that any current bilateral foot disability had its onset during military service or is otherwise related to service, or was caused or aggravated by his service-connected low back disability. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. Following receipt of any new records, schedule the Veteran for an appropriate VA examination for his claimed sleep apnea. The claims file should be provided to the appropriate examiner for review, including the pertinent evidence contained in electronic format, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not that any current sleep apnea had its onset during military service or is otherwise related to service. The examiner is asked to specifically comment on the Veteran's contentions that he had significant snoring and sinus problems during service and that his toxin/chemical exposure in Iraq caused his sleep apnea. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. Then, readjudicate the claims. In particular, review all the evidence that was submitted since the SOC. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs