Citation Nr: 1339795 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 04-33 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1 . Entitlement to an initial evaluation greater than 20 percent for degenerative arthritis, cervical spine, status post surgical fusion C4-C5, C5-C6 through October 18, 2010, (excluding the period from November 6, 2006, to December 31, 2006, for which a temporary total rating due to convalescence was assigned), and in excess of 40 percent since thereafter. 2. Entitlement to an initial evaluation in excess of 10 percent for neurological impairment of the right upper extremity as due to a cervical spine disorder prior to June 21, 2013, and in excess of 20 percent thereafter. 3. Entitlement to an initial evaluation in excess of 10 percent for neurological impairment of the left upper extremity as due to a cervical spine disorder prior to June 21, 2013, and in excess of 20 percent thereafter. 4. Entitlement to an initial evaluation in excess of 10 percent for low back strain with arthritis prior to June 21, 2013, and in excess of 20 percent thereafter. 5. Entitlement to an initial evaluation greater than 10 percent for neurological impairment of the right lower extremity as due to a lumbar spine disorder, from April 8, 2009. 6. Entitlement to an initial evaluation greater than 10 percent for neurological impairment of the left lower extremity as due to a lumbar spine disorder, from April 8, 2009. 7. Entitlement to an initial evaluation in excess of 10 percent for degenerative arthritis, right shoulder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1972 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 decision by a Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, granted service connection for: degenerative arthritis, cervical spine, status post surgical fusion C4-C5, C5-C6 (10 percent); low back strain with arthritis (10 percent); degenerative arthritis, right shoulder (10 percent); degenerative joint disease, left knee (10 percent); status post varicose vein removal, saphenous veins of the right leg (0 percent); and actinic keratoses of the scalp, temples, and arms (0 percent). In January 2009, the Board remanded the claims for additional development. In connection with the Board's January 2009 remand, in an April 2011 rating decision the RO granted service connection for radicular symptoms of the upper and lower extremities, each with a 10 percent evaluation. Subsequently, in a January 2012 decision, the Board granted additional staged increased ratings for the Veteran's cervical spine disorder; granted additional staged ratings for radicular symptoms of the upper and lower extremities; denied an increased evaluation for low back strain; and remanded the claim for an increased rating for the right shoulder disability for additional development. The Veteran appealed the January 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court granted the joint motion for remand (joint motion) filed by representatives for both parties, partially vacating the Board's decision, and remanding the claims for an increased rating for cervical spine disorder, increased rating for the low back disorder, and increased ratings for radicular symptoms of the upper and lower extremities to the Board for further proceedings consistent with the joint motion. The parties also requested that the Court dismiss the Veteran's appeal as to the Boards denial of a compensable rating for radiculopathy of either lower extremity prior to April 8, 2009. In May 2013, the Board remanded the claims for additional development. In connection with the Board's May 2013 remand, in a July 2013 rating decision the RO granted increased ratings for radicular symptoms of the upper extremities from June 21, 2013, each with a 20 percent evaluation. The decision also increased the Veteran's disability rating for a low back strain to 20 percent, effective June 21, 2013. See Fenderson v. West, 12 Vet. App. 119 (1999). Because the maximum benefit was not granted, the issues of entitlement to higher evaluations remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A total disability evaluation based on individual unemployability (TDIU) has been in effect since January 1, 2004. FINDINGS OF FACT 1. Prior to June 21, 2013, neurological impairment of the right and left upper extremities as due to a cervical spine disorder was manifested by mild sensory deficit. 2. From June 21, 2013, neurological impairment of the right and left upper extremities as due to a cervical spine disorder was manifested by moderate neurological impairment. 3. From April 8, 2009, neurological impairment of the right lower extremity as due to a lumbar spine disorder was manifested by mild radiculopathy. 4. From April 8, 2009, neurological impairment of the left lower extremity as due to a lumbar spine disorder was manifested by mild radiculopathy. CONCLUSIONS OF LAW 1. Prior to June 21, 2013, the criteria for an initial disability rating in excess of 10 percent for neurological impairment of the right upper extremity as due to a cervical spine disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). 2. From June 21, 2013, the criteria for a disability rating of 30 percent, but no higher, for neurological impairment of the right upper extremity as due to a cervical spine disorder have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). 3. Prior to June 21, 2013, the criteria for an initial disability rating in excess of 10 percent for neurological impairment of the left upper extremity as due to a cervical spine disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). 4. From June 21, 2013, the criteria for an initial disability rating in excess of 20 percent for neurological impairment of the left upper extremity as due to a cervical spine disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). 5. From April 8, 2009, the criteria for an initial disability rating in excess of 10 percent for neurological impairment of the left lower extremity as due to a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). 6. From April 8, 2009, the criteria for an initial disability rating in excess of 10 percent for neurological impairment of the right lower extremity as due to a lumbar spine disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claims. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case as the Veteran has not alleged any prejudice. VA has obtained the Veteran's service treatment records, Social Security Administration (SSA) records, VA records, assisted him in obtaining evidence, afforded him physical examinations, and obtained medical opinions as to the severity of his disabilities, as well as their impact on employment. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As will be discussed in the remand portion of this decision, the Board finds that the June 2013 VA examinations are inadequate to rate the cervical and lumbar spine disorders, as well as the right shoulder disorder. Nevertheless, the Board finds that the examination is adequate to rate the Veteran's upper and lower extremity neurological disorders. They medical findings with respect to these disabilities are predicated on a substantial review of the record, consider the Veteran's complaints, history and symptoms, and provide suffificent information so as to allow the Board to evaluate the disorders under the applicable rating criteria. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings 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). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted 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." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upper Extremity Radiculopathy In a January 2001 private physical therapy note, the Veteran complained of bilateral shoulder pain and numbness along the flexor surface of the left forearm. Cervical compression test was positive for increased left arm symptoms. A grip strength test was done and revealed some weakness in the left hand of about 15%. During a September 2003 VA examination, the Veteran complained of a rather prolonged episode of numbness and pain of both arms, especially the left, leading to surgery with removal of spurs and fusion of the C4-C5 and C5-C6 vertebra, along with anterior cord decompression. The numbness and pain improved dramatically. Over the last two years, he noticed shooting pain from the left side of his neck to his left elbow that lasts only seconds. The examiner noted a diagnosis of recurrent fleeting left radicular symptoms related to his prior radiculopathy and decreased range of motion. A May 2004 VA orthopedic note indicated neurological examination was normal. During a June 2005 VA examination, the Veteran complained of numbness in both arms with shooting pain going to his fingers. He has a constant dull, throbbing pain to his neck with arm elevation above the shoulder. Sensory motor function of both upper extremities was intact. In a VA progress note dated in October 2006, the Veteran reported that over the past year, he has been experiencing numbness and tingling in the upper shoulder areas and in the in inferior portions and anterior portions of the C3 dermatome bilaterally, right greater than left. He was referred for an MRI of the cervical spine which revealed distortion of the cord, severe spinal canal narrowing and a herniated disc. It was also noted that he had an area of encephalomalacia within the spinal cord at this level. Upon physical examination, the examiner noted full pulses and no edema. Patchy decreased sensation in the upper extremity and decreased bilaterally in the C3 distribution, right greater than left was also noted. In a December 2006 VA progress note, the Veteran reported that since his C3-7 posterior cervical fusion, the radiating pain into his arms is much better. In a March 2007 VA progress note, the Veteran denied any symptoms in his arms. The examiner noted his sensation to light touch is intact in the upper extremities. During a May 2008 VA examination, the Veteran complained of neck pain and pain radiating to the bilateral arms. He complained that if he is looking up, he has tingling and numbness. He reported some improvement with his surgical treatment in November 2006. The Veteran complained that with repetitive activity his arms become quite weak. On April 8, 2009, the Veteran was afforded a VA examination. At this time, he complained of decreased motion in his neck, as well as occasional shooting numbness down his arms. Upon examination, the examiner noted decreased sensation to monofilament to the hand on the left and right. The examiner assessed cervical spine degenerative disc disease and degenerative joint disease status-post fusion. A VA nerve conduction test dated in December 2012 was noted as normal in the upper extremities. The examiner noted that given the distribution of the Veteran's dysesthetic pain, the injury likely involved small sensory fibers of the left median nerve. Only large fibers are tested in conventional nerve conduction studies. Of record is a February 2011 VA neurological examination report. At this time the Veteran complained of off and on numbness, dyesthesias, and pain in the bilateral upper extremities. Reflex examination was normal as was detailed motor examination. Muscle tone was normal and without atrophy. There was no gait imbalance or tremor. There was no evidence of fasciculation. The function of any joint was not impaired by the nerve disorder. Sensory examination indicated that the left and upper right median nerves were involved. A history of carpal tunnel with release was noted. The examiner assessed intermittent cervical radiculopathy of the bilateral upper extremities by subjective complaints only. Nerve conduction studies of the upper extremities, conducted in December 2010, were normal. On June 21, 2013, the Veteran was afforded additional VA examinations during which the claims file was reviewed. During a VA cervical spine evaluation, the examiner noted symptoms due to radiculopathy. The examiner indicated the severe constant pain, moderate intermittent pain, severe paresthesias, and moderate numbness on the right and left upper extremities. The examiner specifically found the severity of radiculopathy is moderate on both the left and right sides. During a peripheral nerves examination, the examiner noted the Veteran's dominant side was his right side. The Veteran had severe constant pain, mild intermittent pain, mild paresthesias, and moderate numbness of the right and left upper extremities. Sensory testing was normal except for decreased sensation in the hand/fingers. The examiner found mild incomplete paralysis of the radial nerve of the right and left upper extremities. By way of background, the Board notes that in an April 2011 rating decision, the RO granted separate 10 percent evaluations for radicular symptoms of each upper extremity. The RO assigned these evaluations for mild incomplete paralysis of the ulnar nerve, effective April 8, 2009, the date of the aforementioned VA examination. See 38 C.F.R. § 4.124a, Diagnostic Code 8516. Paralysis of the ulnar nerve is rated in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8516. A 10 percent rating is warranted for mild incomplete paralysis of the ulnar nerve in either the major or minor upper extremity. A 30 percent rating is warranted for moderate incomplete paralysis of the ulnar nerve in the major upper extremity, while a 20 percent rating is warranted for the minor extremity. A 40 percent rating is warranted for severe incomplete paralysis of the major extremity and a 30 percent evaluation is warranted for the minor extremity. A 60 percent rating is warranted for complete paralysis of the ulnar nerve in the major upper extremity, while a 50 percent rating is warranted for the minor upper extremity. Id. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 8516. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Here, as the symptomatology and anatomy centers on the median nerve, which has been identified as the nerve involved in the present case. Accordingly, Diagnostic Code 8515, dealing with the median nerve, is more appropriately applied. Id. Notably, this diagnostic code provides for an identical 10 percent evaluation for mild incomplete paralysis and could provide for a higher maximum schedular evaluation. Diagnostic Code 8515 provides ratings for paralysis of the median nerve. Diagnostic Code 8515 provides that mild incomplete paralysis is rated 10 percent disabling on the major side and 10 percent on the minor side; moderate incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, is rated 70 percent disabling on the major side and 60 percent on the minor side. 38 C.F.R. § 4.124a. 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. § 4.124a. After a review of all the evidence, lay and medical, the Board finds that for the period prior to June 21, 2013, the Veteran's service-connected right and left neurological impairment of the upper extremities more nearly approximates the criteria for 10 percent for the left under Diagnostic Code 8515. During this time, the evidence shows that the Veteran does not have moderate incomplete paralysis of the median nerve. Additionally, the scheduler diagnostic criteria adequately describe the severity of impairment and symptomatology of the Veteran's right and left neurological impairment. At that time, the Veteran's radicular symptoms of each upper extremity, at worst, can be characterized as mild. In essence, the Board concludes that his radicular symptoms prior to June 2013 were wholly sensory and only intermittent in nature. In this regard, during a September 2003 VA examination, the Veteran complained of a history of prolonged episodes of numbness and pain of both arms, leading to surgery, but he also explained that the numbness and pain improved dramatically thereafter. He reported noticing shooting pain from the left side of his neck to his left elbow over the previous two years, but indicated that the pain lasts only seconds. During a June 2005 VA examination, the Veteran complained of numbness in both arms with shooting pain going to his fingers, and a dull, throbbing pain to his neck with arm elevation above the shoulder. Significantly, both sensory and motor function of both upper extremities was intact at that time. In October 2006, the Veteran reported numbness and tingling in the upper shoulder areas, but in December 2006, he indicated that the radiating pain into his arms was doing much better following his C3-7 posterior cervical fusion. He subsequently denied any symptoms in his arms in March 2007, and sensation was noted to be intact at that time. Although the Veteran began to complain of pain and numbness in his upper extremities again as of March 2008, the February 2011 VA examination showed that reflex examination was normal and that muscle tone was normal and without atrophy. The examiner found no gait imbalance or tremor, no evidence of fasciculation, and no functional impairment of any joint due to nerve disorder. At that time, the examiner assessed intermittent cervical radiculopathy of the bilateral upper extremities by subjective complaints only, which is consistent with the Board's conclusion above. The Board further finds, however, that for the period since June 21, 2013, the Veteran's service-connected right and left neurological impairment of the upper extremities more nearly approximates the criteria for 30 percent for the right and 20 percent for the left under Diagnostic Code 8515. The evidence shows that the Veteran does not have severe incomplete paralysis of the median nerve. Additionally, the scheduler diagnostic criteria adequately describe the severity of impairment and symptomatology of the Veteran's right and left carpal tunnel syndrome. During this time, the Veteran's radicular symptoms of each upper extremity, at worst, were manifested by moderate incomplete paralysis of the upper extremities. The June 2013 VA examiner specifically found the severity of radiculopathy is moderate on both the left and right sides. As noted above, Diagnostic Code 8515 provides that moderate incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side. At no point during the claims process has the Veteran's upper extremities exhibited severe incomplete paralysis on either side warranting higher disability ratings. The Board notes that the VA examiner's determinations of the Veteran having moderate incomplete paralysis of the right and left nerves are also consistent with the clinical findings on the VA examination. Objective evidence does not show difficulties with fine motor activities, muscle atrophy, or impairment of joint function. To the extent that the Veteran asserts he has pain and numbness, it does not support the proposition that the median nerve is so damaged that he is incapable of holding items - i.e., that he has complete paralysis as that term is defined in 38 C.F.R. §4.124 , Diagnostic Code 8515. Therefore, the preponderance of the evidence is against the Veteran's claims that he is entitled to an initial rating in excess of 10 percent for neurological impairment of the right and left upper extremities for the period prior to June 21, 2013, and an initial rating in excess of 20 percent for neurological impairment left upper extremity for the period since June 21, 2013. The Board finds the Veteran is entitled to a disability rating of 30 percent, but no higher, for neurological impairment right upper extremity for the period since June 21, 2013. See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra. Lower Extremity Radiculopathy On April 8, 2009, the Veteran was afforded a VA examination. Review of systems revealed no bowel or bladder dysfunction. At this time, the Veteran complained of moderate to severe throbbing pain in the middle of the low back on a daily basis with occasional radiation into the right leg. Motor examination was normal, but each foot exhibited decreased sensation to monofilament. In a February 2010 VA progress note, the examiner noted the Veteran had low back pain with radiculopathy into the right lower extremity. A MRI confirmed the assessment of low back pain with bilateral radiculopathy. In March 2010, the Veteran complained of low back pain worsening over the last year with right leg paresthesia when sitting over 20 minutes, relieved with standing. In October 2010, the Veteran underwent another VA examination. A review of systems revealed no bowel or bladder dysfunction. At this time, the Veteran complained of lumbar spine pain that went down "to [the] legs" and pain occurring after sitting in a particular position. Inspection of the spine showed a normal posture, head position, and symmetry in appearance. Neurological examination noted impaired bilateral knee jerks and an impaired left ankle jerk, as well as decreased vibration sense on the feet and decreased light touch to the toes of the left feet. Of record is a February 2011 VA neurological examination report. At this time the Veteran complained of off and on numbness, dysestheisas, and pain in the bilateral lower extremities. Reflex examination was normal as was detailed motor examination. Muscle tone was normal and without atrophy. There was no gait imbalance or tremor. There was no evidence of fasciculation. The function of any joint was not impaired by the nerve disorder. Sensory examination noted that the left and right plantar nerves were involved. The examiner assessed intermittent lumbosacral radiculopathy of the bilateral upper extremities by subjective complaints only. On June 21, 2013, the Veteran was afforded additional VA examinations. During a VA cervical spine evaluation, the examiner noted symptoms due to radiculopathy. The examiner indicated the moderate constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness on the right and left lower extremities. The examiner specifically found the severity of radiculopathy is mild on both the left and right sides. During a VA peripheral nerves examination, the examiner noted no constant pain, mild intermittent pain, mild paresthesias, and mild numbness of the right and left lower extremities. Sensory testing was normal. The examiner noted normal nerve evaluation of the lower extremities. The examiner also noted that the Veteran's peripheral nerve conditions do not impact his ability to work. By way of background, the Board notes that in an April 2011 rating decision, the RO granted separate 10 percent evaluations for radicular symptoms each lower extremity. The RO assigned these evaluations for mild incomplete paralysis of the sciatic nerve, effective April 8, 2009, the date of the aforementioned VA examination. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. However, a specific diagnostic code is not available for neuritis, neuralgia, or paralysis of the plantar nerves under Diagnostic Codes 8510 - 8730 for disease of the peripheral nerves. See 38 C.F.R. §4.124a Diagnostic Codes 8510 - 8730 (2012). The Board notes that rating by analogy is appropriate for an unlisted condition where a closely related condition, which approximates the anatomical localization, symptomatology, and functional impairment, is available. 38 C.F.R. § 4.20 (2012). In this case, the Board finds that any plantar nerve injury is most appropriately rated as analogous to impairment of the sciatic nerve, the code under which the Veteran has already been rated, which notably contemplates incomplete paralysis of the foot. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. §4.124a. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. Id. After a review of all the evidence, lay and medical, the Board finds that the Veteran's service-connected right and left neurological impairment of the lower extremities more nearly approximates the criteria for 10 percent under Diagnostic Code 8520. The evidence shows that the Veteran does not have moderate incomplete paralysis of the sciatic nerve. Additionally, the scheduler diagnostic criteria adequately describe the severity of impairment and symptomatology of the Veteran's right and left lower extremity neurological impairment. During this time, the Veteran's radicular symptoms of each lower extremity, at worst, were manifested by mild incomplete paralysis of the upper extremities. As discussed, the June 2013 VA examiner specifically found the severity of radiculopathy is mild on both the left and right sides. Previous VA examination in February 2011 showed sensory loss, but reflex examination was normal, and muscle tone was normal and without atrophy. The examiner found no gait imbalance or tremor, no evidence of fasciculation, and no impairment of function of any joint due to the nerve disorder. During earlier examinations, the Veteran described only occasional pain radiating into the low legs and following sitting in a particular position. At no point during the claims process has the Veteran's lower extremities exhibited moderate incomplete paralysis on either side warranting higher disability ratings. The Board notes that the VA examiner's determinations of the Veteran having mild incomplete paralysis of the right and left sciatic nerves are also consistent with the clinical findings on the VA examination. Objective evidence does not show either foot dangles or drops with no active movement possible of muscle below the knee. To the extent that the Veteran asserts he has pain, it does not support the proposition that the median nerve is so damaged that he is incapable of using his feet - i.e., that he has complete paralysis as that term is defined in 38 C.F.R. §4.124 , Diagnostic Code 8520. Therefore, the preponderance of the evidence is against the Veteran's claim that he is entitled to an initial rating in excess of 10 percent for neurological impairment of the right and left lower extremities. See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra. Extraschedular Consideration According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the 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 scheduler evaluations for the service-connected upper and lower extremities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level. In short, there is nothing in the record to indicate that the service-connected disabilities on appeal cause impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial evaluation in excess of 10 percent for neurological impairment of the right upper extremity as due to a cervical spine disorder prior to June 21, 2013 is denied. Entitlement to an evaluation of 30 percent for neurological impairment of the right upper extremity as due to a cervical spine disorder from June 21, 2013 is granted. Entitlement to an initial evaluation in excess of 10 percent for neurological impairment of the left upper extremity as due to a cervical spine disorder prior to June 21, 2013, and in excess of 20 percent thereafter, is denied. Entitlement to an initial evaluation greater than 10 percent for neurological impairment of the right lower extremity as due to a lumbar spine disorder, from April 8, 2009, is denied. Entitlement to an initial evaluation greater than 10 percent for neurological impairment of the left lower extremity as due to a lumbar spine disorder, from April 8, 2009, is denied. REMAND The Board regrets the further delay another remand will cause the Veteran, but to decide this case based on the evidence of record would be unfairly prejudicial to the Veteran. Therefore, the case must again be remanded for compliance with the November 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In a May 2013 remand, in accordance with concerns raised in the joint motion, the Board specifically requested VA examinations of the cervical and lumbar spine disorders, as well as the right shoulder disorder, that include whether the active motion tests were weight-bearing or nonweight-bearing. The Veteran underwent additional VA examinations in June 2013, however, the examination reports fail to address how range of motion testing was conducted to include weight-bearing or nonweight-bearing. Therefore an additional VA examination is necessary to comply with the May 2013 Board remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should then schedule the Veteran for a physical examination to determine the current severity of his service-connected cervical spine and lumbar spine disabilities. The Veteran's VA claims folder and a copy of this Remand should be made available to, and should be reviewed by the examiner. Upon review of the record and examination of the Veteran, the examiner should specifically identify: (a) the ranges of motion of the Veteran's cervical and lumbar spine, including testing for pain on both active and passive motion, in weight-bearing, in degrees; (b) the ranges of motion of the Veteran's cervical and lumbar spine, including testing for pain on both active and passive motion, in nonweight-bearing, in degrees; (c) any identifiable functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use; and (d) the frequency and duration of any incapacitating episodes occurring during the past 12 months requiring bed rest prescribed by a physician and treatment by a physician. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The RO should then schedule the Veteran for a physical examination to determine the current severity of his service-connected right shoulder disability. The Veteran's VA claims folder and a copy of this Remand should be made available to, and should be reviewed by the examiner. Upon review of the record and examination of the Veteran, the examiner should specifically identify: (a) the ranges of motion of the Veteran's right shoulder, including testing for pain on both active and passive motion, in weight-bearing; and (b) the ranges of motion of the Veteran's right shoulder, including testing for pain on both active and passive motion, in nonweight-bearing; and (c) any identifiable functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO should then readjudicate the Veteran's appeal, to include all issues listed above. If any of the issues on appeal are denied, in whole or in part, the RO should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs