Citation Nr: 1339041 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 06-05 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased disability evaluation (rating) in excess of 20 percent for a cervical spine disability. 2. Entitlement to an increased disability evaluation (rating) in excess of 20 percent for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1994 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction over this claim is currently with the RO in Pittsburg, Pennsylvania. Historically, in an August 2011 decision, the Board denied the claims of entitlement to an increased disability rating in excess of 20 percent for a cervical spine disability and an increased disability rating in excess of 20 percent for a low back disability. The Veteran appealed the Board's August 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2012 Order, the Court granted a December 2012 Joint Motion for Remand (JMR) as to each of the claims, vacated the Board's August 2011 decision, and remanded the claims to the Board for action consistent with the JMR. In September 2009 and July 2013, the Board remanded this matter to the RO for additional development. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion of the RO's compliance with the September 2009 and July 2013 Board Remands is included in the Duties to Notify and Assist section below. The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU), as recognized in Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised by the Veteran or the evidence in this case, but finds that a TDIU claim has not been raised. Here, the Veteran has not reported or contended that he is unable to work specifically due to his service-connected cervical or low back disability. While the Veteran has reported that the service-connected disabilities have had some effect on occupation, the record reflects that he continues to work; thus, the record demonstrates that the Veteran has not claimed to be unemployable due to the service-connected cervical disability or low back disability. For this reason, a TDIU claim is not raised by the record in this case. This appeal was processed using VA's Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The weight of the lay and medical evidence of record demonstrates that the Veteran's cervical spine disability is characterized by intervertebral disc syndrome, degenerative disc disease, stenosis, cervical spine strain, alteration of curvature, disc herniation, forward flexion to 18 degrees, and combined ranges of motion to 108 degrees and 165 degrees after repetition with pain; it is not characterized by favorable ankylosis of the entire cervical spine. 2. The weight of the lay and medical evidence of record demonstrates that the Veteran's low back disability is characterized by degenerative joint disease, tension, muscle spasm, loss of the lumbar lordosis, right and left sacroiliac (SI) joint pain, and forward flexion to 50 and 55 degrees with pain; it is not characterized by favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for a cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West Supp. 2010); 38 C.F.R. §§ 3.102, 3.321, 4.17a, Diagnostic Code 5237 (2013). 2. The criteria for an evaluation in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West Supp. 2010); 38 C.F.R. §§ 3.102, 3.321, 4.17a, Diagnostic Code 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was not advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication; however, a March 2006 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The claim was last readjudicated in a September 2013 supplemental statement of the case, thereby curing any notice deficiency. Mayfield, 444 F.3d at 1333. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, prejudicial, normally falls upon the party attaching the agency's determination, except in cases where VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim); see also Mayfield at 1333-34. With regard to the duty to assist, VA has obtained the Veteran's VA outpatient treatment records from July 2004 to November 2004 and from October 2005 to May 2009, employment records from January 2004 to August 2006, and an October 2006 personal statement from his wife. The Veteran was also provided VA examinations in connection with his claims in December 2004, August 2005, and December 2009 (pursuant to the September 2009 Board Remand) with an August 2013 addendum medical opinion (obtained pursuant to the July 2013 Board Remand). These examinations, taken together, and with the August 2013 addendum medical opinion supplementing and clarifying the results of the December 2009 VA examination, are adequate for rating purposes. The VA examiners reviewed the Veteran's medical history and complaints, and made clinical observations and findings regarding the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Also, in this regard, the Board found the December 2009 VA examination to be inadequate, following the December 2012 JMR and Court Order, only as far as the December 2009 VA examiner did not provide an opinion as to resultant loss in range of motion due to flare-ups or repetitive motion in terms of degrees. While the claims were remanded due to an inadequacy of a portion of the December 2009 VA examination, the fact that one part of a medical examination may be inadequate (or arguably "insufficient") does not render the entire examination "void," particularly with regard to objective orthopedic test results, such as measured ranges of motion of the cervical and lumbar spine, and the Veteran's lay observations and reports offered contemporaneously with the examination. Indeed, the deficiency was resolved in the August 2013 addendum medical opinion and the Board will discuss the VA examinations as they pertain to the objective orthopedic results and the Veteran's own reports. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Cervical Spine Disability Rating Analysis In an October 2004 personal statement, the Veteran reported that his service-connected cervical spine disability has gotten worse, and he contends that a higher evaluation is warranted. Historically, the Veteran was granted service connection for a cervical spine disability in a September 1998 rating decision and assigned a 10 percent disability rating, effective January 27, 1998. Subsequently, in a March 2001 rating decision, the RO increased the evaluation to 20 percent disabling, effective October 31, 2000. The general rating formula for diseases and injuries of the spine, in pertinent part, provides a 20 percent rating is assigned where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the cervical spine is not greater than 170 degrees; or muscle spasm or guarding is severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted where forward flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine is present. A 40 percent rating is assigned where unfavorable ankylosis of the entire cervical spine is present. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). 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. The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation. 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. Id. During the pendency of this appeal, the Veteran was afforded VA spinal examinations for his service-connected cervical spine disability in December 2004, August 2005, and December 2009 with an addendum medical opinion in August 2013. At the December 2004 VA examination, the Veteran complained of neck pain and stiffness. The pain is continuous, waxing, and waning in intensity, and causes difficulty with engaging in any recreational physical activities, but is tolerable with medication. He reported flare-ups about once a month, which lasts for about a week, accompanied with difficulty turning his head due to stiffness and pain radiating down both arms. He usually takes three days off work when the pain is intense, rests in bed, and takes pain medication, but he is still able to perform his activities of daily living. The Veteran also noted that he does not use any neck brace or any other prosthesis and can drive for up to an hour. Following the examination, the Veteran exhibited forward flexion to 30 degrees before and after six repetitions and a combined range of motion to 180 degrees and to 205 degrees after six repetitions. With each repetition, the Veteran reported that his muscle stiffness had improved and the examiner noted no evidence of muscle spasm or weakness. The Veteran's neck pain was assessed as due to cervical disc disease and he was diagnosed with cervical disc herniation and stenosis. In a February 2005 notice of disagreement (NOD), the Veteran reported the following corrections to the December 2004 VA examination report. He clarified that he has approximately five flare-ups per month that lasts for two to three days minimum and not triggered by activity. He alleviates the pain by lying down. His cervical spine disability severely interferes with his activities of daily living and he regularly uses a transcutaneous electrical nerve stimulation (TENS) unit and a neck brace. The Veteran reported his inability to turn his neck/head to the right without great pain and to the left for only about 15 degrees. At the August 2005 VA examination, the Veteran complained of constant pain in the back of his neck which is somewhat relieved by medication. He has flare-ups several times every day with increased pain by any activity. The flare-up lasts up to 7 to 10 days and causes 20 to 30 percent additional limitation of motion. The Veteran denied any incapacitating episode in the past 12 months, use of any assistive devices, and dizziness. He is independent in eating and grooming, but needs some help with bathing and dressing due to the pain. Following the examination, the Veteran exhibited forward flexion to 60 degrees and a combined range of motion to 170 degrees. He was unable to complete the repetitions due to pain, and the examiner noted no objective evidence of muscle spasm, percussion or spinal tenderness, pain on movement, edema, redness, effusion, or swelling. The examiner further noted that the Veteran was not cooperative by not moving his neck during the evaluation. The Veteran was diagnosed with a cervical spine strain, C4-C5 disc space narrowing/disease, and alteration of curvature rule out muscle spasm. In a February 2006 personal statement, the Veteran reported the following corrections to the August 2005 VA examination report. He was cooperative and did everything he was asked of by the examiner to the best of his ability. He occasionally gets dizzy and is in severe pain several times every day, which decreases his range of motion to zero percent but is alleviated when he lies down. At the December 2009 VA examination, the Veteran continued his complaint of severe pain across his neck and that he wears a cervical collar a third of the time. He specified that his neck pain is moderate but becomes severe very quickly without much effort. The Veteran has flare-ups while driving and sleeping due to small changes in the cervical posture or turning his head, and he has to be extremely careful with his activities of daily living so not to aggravate his neck. He denied any unsteadiness or falls related to his cervical spine and that he self-administers bed rest as needed. He reported that he is also unable to maintain his house, to include repairs, home chores, painting, plumbing, or mowing the grass. He indicated that he had not had any physician prescribed bed rest but he would self-administer bed rest if needed. Following the examination, the Veteran exhibited forward flexion to 18 degrees and to 35 degrees after five repetitions with pain, and a combined range of motion to 108 degrees and to 165 degrees after five repetitions with pain. Radiographic images revealed cervical straightening with bridging osteophyte at C4-C5, and the Veteran was diagnosed with severe degenerative disc disease and intravertebral disc syndrome. VA outpatient treatment records from July 2004 to September 2004 reveal the Veteran's requests to refill his pain medications. In September 2004, he complained of chronic neck pain and reported that he has relief with the pain medication. In October 2005, the Veteran reported chronic neck pain and that he began to use the cervical collar for 30 minutes several times a day in a January 2007 record. In May 2008, he complained of cervical spine stenosis and chronic neck pain, but also noted that the cervical collar helped a lot. Most recently, in a May 2009 record, he was diagnosed with cervical spine stenosis, continued his complaint of chronic pain, and reported that he uses the cervical collar when he is in more pain, but most of the time he is doing okay. In an October 2006 personal statement, the Veteran's wife reported that the Veteran drives short distances and his medication has gradually increased over the past several years. The Veteran also has at least two incapacitating periods per month, each lasting for about two days, during which he lies down and takes medication to alleviate the pain. The Board also notes the Veteran reiterated his use of a cervical collar in November 2009 and January 2007 personal statements. After carefully reviewing the evidentiary record, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran's service-connected cervical spine disability is appropriately rated as 20 percent under Diagnostic Code 5237, and a preponderance of the evidence is against a finding that a higher rating under Diagnostic Code 5237 is warranted. The evidence, as previously stated, shows the Veteran has no muscle spasm or weakness, percussion or spinal tenderness, edema, redness, effusion, or swelling. The Veteran exhibited forward flexion to 18 degrees with pain on repetition at the December 2009 VA examination, as well as combined ranges of motion to 108 degrees and 165 degrees after repetition with pain at the December 2009 VA examination. Therefore, an evaluation in excess of 20 percent is not warranted for the Veteran's service-connected cervical spine disability under Diagnostic Code 5237. Low Back Disability Rating Analysis In an October 2004 personal statement, the Veteran reported that his service-connected low back disability has gotten worse, and he contends that a higher evaluation is warranted. Historically, the Veteran was granted service connection for a low back disability in a September 1998 rating decision and assigned a 10 percent disability rating, effective January 27, 1998. Subsequently, in a February 2006 rating decision, a DRO increased the evaluation to 20 percent disabling, effective October 7, 2004, the date of the Veteran's increased rating claim, under the general rating formula for diseases and injuries of the spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). The rating criteria, in pertinent part, provides a 20 percent rating is assigned where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, 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, and left and right lateral flexion, and left and right rotation. 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. Id. During the pendency of this appeal, the Veteran's low back disability was also evaluated at the VA spinal examinations in December 2004, August 2005, and December 2009 with an addendum medical opinion in August 2013. At the December 2004 VA examination, the Veteran complained of aching to intense sharp pain in his lower back which at times varies with intensity and relieved with pain medication. He has flare-ups late in the day twice per month and relieved with pain medication and lying down. The Veteran has no impairment of daily activities due to his low back pain, he can walk up to a mile on good days and half a mile on other days, and can drive up to an hour without any difficulty. He does not use any assistive devices, but admits some limitation on undertaking any physical recreational activities. Following the examination, the Veteran exhibited forward flexion to 60 degrees with pain and a combined range of motion to 200 degrees upon normal range of motion and after five repetitions. The examiner noted objective evidence of some muscle spasm and x-ray reports that showed degenerative changes with bony lipping. The Veteran was diagnosed with low back pain due to degenerative osteoarthritis of the lumbar spine. In a February 2005 NOD, the Veteran reported the following corrections to the December 2004 VA examination report. He has flare-ups twice a day, wears shoe inserts, and cannot run, jog, walk fast, or reach his feet to wash or put on shoes. At the August 2005 VA examination, the Veteran complained of constant pain in his lower back. He has flare-ups several times every day due to prolonged standing, sitting, walking, or twisting, which lasts up to 7 to 10 days and alleviated by bed rest and pain medication. The Veteran denied use of assistive devices, such as crutches, cane, and a walker, and noted that he is dependent for bathing, dressing, and putting on socks and shoes because of his low back pain. Following the examination, the Veteran exhibited forward flexion to 55 degrees and a combined range of motion to 125 degrees. He was unable to complete the repetitions due to pain, and the examiner noted no objective evidence of muscle spasm, percussion or spinal tenderness, pain on movement, edema, redness, effusion, or swelling. The Veteran was diagnosed with lumbar spine degenerative changes with radicular symptoms. In a February 2006 substantive appeal, via a VA Form 9, the Veteran reported that the August 2005 VA examination report failed to note that his low back pain decreases his range of motion by 100 percent. At the December 2009 VA examination, the Veteran reported that the pain across his back is mild to moderate and aggravated by driving, prolonged walking or standing, and sideward bending. He also noted chronic pain in the right and left sacroiliac (SI) joints. He denied the use of a back brace, but frequently uses a cane. The Veteran reported falling two to three times per month due to severe back pain and spasm and self-administering bed rest as needed. He is also unable to do activities of daily living, to include cooking, washing dishes, and completing laundry. He reported that he missed a total of 10 days of work due to either the cervical or lumbosacral complaints, but has not had any physician-prescribed bed rest. Following the examination, the Veteran exhibited forward flexion to 60 degrees and to 50 degrees after five repetitions with pain, as well as a combined range of motion to 195 degrees before and after five repetitions. The examiner noted objective evidence of increased tension and tone in the lumbar spine, spasm with the loss of the lumbar lordosis, and right and left SI joint pain. The Veteran was diagnosed with degenerative joint disease of the lumbosacral spine. VA outpatient treatment records from July 2004 to September 2004 and July 2006 reveal the Veteran's requests to refill his pain medications. The September 2004 record also documents his complaint of chronic back pain with relief from the pain medications. In an April 2006 personal statement, the Veteran reported his every other day use of a TENS unit, daily use of a heat pad, and twice per week hot baths with Epsom salt for his low back pain. After carefully reviewing the evidentiary record, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran's service-connected low back disability is appropriately rated as 20 percent under Diagnostic Code 5237, and a preponderance of the evidence is against a finding that a higher rating under Diagnostic Code 5237 is warranted. The evidence, as previously stated, shows the Veteran has increased tension and tone, muscle spasm, loss of the lumbar lordosis, and right and left SI joint pain. The Veteran also exhibited forward flexion to 55 degrees at the August 2005 VA examination and to 50 degrees after five repetitions with pain at the December 2009 VA examination. Therefore, an evaluation in excess of 20 percent is not warranted for the Veteran's service-connected low back disability under Diagnostic Code 5237. The Board also notes Diagnostic Code 5242 directs that degenerative arthritis of the spine be evaluated under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2013). Under Diagnostic Code 5003, degenerative arthritis, when substantiated by x-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. While the Veteran was diagnosed with osteoarthritis of the lumbar spine by the December 2004 VA examiner and with degenerative joint disease of the lumbar spine by the December 2009 VA examiner, his service-connected low back disability is currently rated at 20 percent disabling based on limitation of motion. Therefore, Diagnostic Code 5003 does not assist the Veteran in obtaining a higher disability evaluation. Additional Considerations First, higher ratings for the Veteran's service-connected disabilities are not warranted under Diagnostic Code 5243 for intervertebral disc syndrome. See 38 C.F.R. § 4.71a. The Veteran was diagnosed with cervical intravertebral disc syndrome by the December 2009 VA examiner, and the Veteran reported having flare-ups due to neck and back pain that last for 7 to 10 days at the August 2005 VA examination and falling due to severe back pain and spasm at the December 2009 VA examination; however, there is no evidence showing that the Veteran has had incapacitating episodes during the past year and that his previous flare-ups required bed rest prescribed by a physician. In fact, the Veteran reported to the December 2009 VA examiner that he has not been prescribed bed rest, but rather self-administers bed rest to alleviate his pain. As such, evaluations in excess of 20 percent for the Veteran's service-connected cervical spine and low back disabilities are not warranted under Diagnostic Code 5243. Second, the Board has considered whether separate evaluations are warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1) (2013). At the December 2004, August 2005, and December 2009 VA examinations, the Veteran consistently denied any disturbances or alteration of bladder or bowel function. The Board also notes that in a January 2010 rating decision, the RO separately evaluated and granted service connection for radiculopathy of the right upper extremity associated with the service-connected cervical spine disability, assigned at 30 percent disabling, and for radiculopathy of the bilateral lower extremities associated with the service-connected low back disability, each assigned at 10 percent disabling. See 38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8521 (2013). As mentioned in the July 2013 Board Remand, the Veteran did not initiate an appeal of these ratings and these issues are not part of the increased disability ratings currently on appeal. Third, with respect to the possibility of entitlement to higher ratings under 38 C.F.R. §§ 4.40, 4.45, the Board has considered whether evaluations in excess of 20 percent could be assigned on the basis of functional loss due to the Veteran's service-connected cervical spine and low back disabilities. See DeLuca, 8 Vet. App. at 204-05; VAOPGCPREC 36-97, 63 Fed. Reg. 31,262 (1998). The Board also emphasizes that the criteria of the general rating formula are to be applied with or without factors such as pain. See 38 C.F.R. § 4.71a (2013). The Board notes that the findings do not support evaluations in excess of 20 percent due to functional loss. The Veteran reported in a February 2005 NOD and at the August 2005 and December 2009 VA examinations that his cervical spine and low back disabilities interfere with his activities of daily living, to include cooking, washing dishes, completing laundry, bathing, dressing, and putting on socks and shoes. In the February 2005 NOD, he noted use of a neck brace, TENS unit, and shoe inserts, as well as frequent use of a cane in the December 2009 VA examination report. He reported difficulty engaging in any recreational physical activities because of his neck pain at the December 2004 VA examination. At the August 2005 VA examination, the Veteran also reported additional limitation of motion of his cervical spine by 20 to 30 percent or 20 degrees and of his low back by 30 to 40 percent or 30 degrees. Moreover, in a statement accompanying a February 2006 substantive appeal, via a VA Form 9, he noted that his low back pain decreases his range of motion by 100 percent, and in another February 2006 personal statement, he reported that he has daily and severe neck pain which decreases his range of motion to 0 percent. The December 2009 VA examiner opined that the Veteran has increasing pain with any type of slight repetition range of motion, especially in the cervical spine and that this impairment affects both the flare-ups and repetitious or static postures. Nonetheless, at the December 2004 VA examination after repetitive testing, the Veteran exhibited forward flexion of the cervical spine to 30 degrees and a combined range of motion to 205 degrees with no evidence of muscle spasm or weakness. He also exhibited forward flexion of the low back to 60 degrees and a combined range of motion to 200 degrees with pain and some spasm. The August 2005 VA examiner noted that the Veteran was unable to complete repetitions due to pain. Most recently, at the December 2009 VA examination after repetitive testing, the Veteran exhibited forward flexion of the cervical spine to 35 degrees and a combined range of motion to 165 degrees with pain. He also exhibited forward flexion of the low back to 50 degrees and a combined range of motion to 195 degrees with pain. Directly addressing the arguments made by the parties of the December 2012 JMR, with regard to describing any additional degrees of limitation of motion resulting from repeated use or flare-ups, the examiner stated only that flare-ups decreased the Veteran's effective work output by 25 percent and caused him to miss work 5 percent of the year. Here, the examiner did not adequately describe any resultant loss in range of motion due to flare-ups or repetitive motion in terms of degrees. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (holding that because the examiner failed to "address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and should be returned for the required detail to be provided); 38 C.F.R. § 4.2 (2013). Pursuant to the July 2013 Board Remand, the VA examiner who conducted the December 2009 examination submitted an addendum medical opinion in August 2013. After a review of the goniometric evaluation from December 2009, the VA examiner clarified the results of the December 2009 examination and opined that the Veteran did not have additional decreased range of motion other than that already indicated; instead, the examiner explained that the Veteran had mildly increased pain with goniometric maneuvers with all modalities (cervical flexion, extension, rotation, side bending; and lumbar flexion, extension, rotation and side bending). The measurable impairment with regard to degrees of motion was noted only in the lumbosacral spine, and impairment decrease in range of motion with flexion was 10 degrees (from 60 degrees prior to repetitions, decreasing to 50 degrees after repetitions); and with right rotation (going from 40 degrees prior to range of motion to 35 degrees after 5 repetitions-5 degree decrement). With regard to the cervical and lumbar spine disabilities, the Board has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). The range of motion findings do not more nearly approximate the criteria for a rating in excess of 20 percent, even when painful motion is considered. The Board acknowledges the Veteran's reports regarding pain and its effect on range of motion of the cervical and lumbar spine, detailed above. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, in order to constitute functional loss. Id. at 11; see also 38 C.F.R. § 4.40. The evidence indicated in this decision does not show such additional functional loss or limitation of motion due to such factors as pain to more nearly approximate the criteria for a higher disability rating based on limitation of motion. The Board finds that competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal, who provided detailed clinical findings and who have rendered pertinent opinions with adequate rationale in conjunction with the evaluations, as discussed above. The competent and probative medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, the Board finds that the weight of the lay and medical evidence does not demonstrate that the Veteran's service-connected disabilities have caused him functional loss greater than that contemplated by the 20 percent evaluations currently assigned under Diagnostic Code 5237. Therefore, evaluations in excess of 20 percent for the Veteran's service-connected disabilities are not warranted based on application of 38 C.F.R. §§ 4.40, 4.45, and DeLuca at 202. Lastly, the Board has considered whether referral for extraschedular consideration is warranted. 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. 38 C.F.R. § 3.321(b)(1) (2013); 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the symptomatology and impairment caused by the Veteran's cervical spine and low back disabilities are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 5003, 5010, and 5237 specifically provide for disability ratings based on arthritis and limitation of motion, including limitation of motion due to pain and other limiting factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5237; see also DeLuca at 202. In this case, considering the lay and medical evidence, the cervical spine and low back disabilities have been manifested by pain and arthritis of the low back (diagnosed as degenerative joint disease); these findings and symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). The Board further considered the Veteran's functional limitations. The Veteran contends that he has missed at least three days of work per month due to his service-connected cervical spine disability in a February 2005 NOD and August 2005 VA examination report. The Veteran denied missing work and any significant effect on work due to his service-connected low back disability; however, most recently at the December 2009 VA examination, the Veteran reported that he has missed a total of 10 days of work due to either cervical or lumbosacral complaints. The Veteran also submitted his employment records documenting his approximate use of 92 hours (12 days) of sick leave from January 2004 to August 2006. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms on his occupation and daily life. In the absence of exceptional factors associated with the cervical spine disability and low back disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the reasons stated above, the Board finds that a preponderance of the evidence is against the claims for entitlement to evaluations in excess of 20 percent for the Veteran's service-connected cervical spine and low back disabilities. See Gilbert, 1 Vet. App. at 55. In this case, the Board does not find that the ratings assigned should be higher for any other separate period based on the facts found during the appeal period. As a result, no staged rating is warranted. 38 C.F.R. §§ 4.3, 4.7; see Fenderson, 12 Vet. App. at 126; See Hart, 21 Vet. App. at 511. ORDER An evaluation in excess of 20 percent for a cervical spine disability is denied. An evaluation in excess of 20 percent for a low back disability is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs