Citation Nr: 1802637 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-18 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for multi-level disc disease of the cervical spine prior to June 1, 2017, and in excess of 30 percent on and after that date. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to June 25, 2015. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to April 1986, and from November 1990 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Appeals Management Center (AMC) in Washington, D.C. Jurisdiction over this case was subsequently returned to the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The Veteran requested a Board hearing in Washington, D.C.; however, he canceled that request in October 2011. In May 2012, the Board issued a decision which denied the Veteran's appeal for an increased initial rating for multi-level disc disease of the cervical spine. In September 2012, the Veteran filed a motion for reconsideration of the Board's decision. In September 2013, the Board vacated its May 2012 decision and remanded the case for additional development. In February 2017, the Board again remanded this matter for further development. The appeal has been returned to the Board for appellate review. Regarding the claim for TDIU, although it was addressed by rating decisions issued in December 2015 and January 2016, the Board notes it was also raised as part of the Veteran's claim for an increased initial rating for multi-level disc disease of the cervical spine. See July 2013 informal claim for TDIU. As such, the Board has jurisdiction to consider TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that every claim for a higher evaluation includes a claim for TDIU where the appellant contends that his or her service-connected disabilities prevent employment). In a July 2017 rating decision, the RO granted entitlement to a TDIU effective June 25, 2015, and found that a TDIU was moot, effective November 19, 2015, the date the Veteran's service-connected disabilities were evaluated as 100 percent disabling. Because a total rating is in effect from that date and because the June 2017 rating decision also granted SMC at the housebound rate from September 24, 2015, the date the Veteran became qualified on schedular basis for SMC a the housebound rate, the TDIU issue is either granted in full or moot from June 25, 2015. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (analyzing 38 U.S.C.A. § 1114 (s)). The issue of entitlement to a TDIU prior to June 25, 2015, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 1, 2017, the Veteran's cervical spine disability has been manifested by painful motion and limitation of flexion to, at worst, 20 degrees; and the cervical spine disability has not resulted in ankylosis or any incapacitating episodes necessitating bed rest prescribed by a physician with a duration of at least 4 weeks but less than 6 weeks during a 12 month period. 2. On and after June 1, 2017, the Veteran's cervical spine disability has not been manifested by ankylosis or any incapacitating episodes necessitating bed rest prescribed by a physician with a duration of at least 4 weeks but less than 6 weeks during a 12 month period. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for multi-level disc disease of the cervical spine have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5287, 5290, 5293 (2003); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5235-5243(2017). 2. On and after June 1, 2017, the criteria for a rating in excess of 30 percent for the Veteran's cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board also finds that there has been compliance with the prior February 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. During the pendency of this claim, the criteria for evaluating disabilities of the spine were revised. Under the criteria in effect prior to September 23, 2002, intervertebral disc syndrome warrants a noncompensable evaluation if it is postoperative, cured. A 10 percent evaluation is warranted if it is mild. A 20 percent evaluation is warranted if it is moderate with recurring attacks. A 40 percent evaluation is warranted if it is severe with recurrent attacks and intermittent relief. A 60 percent evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under the interim revised criteria of Diagnostic Code 5293, effective September 23, 2002, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A maximum 60 percent evaluation is warranted 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 evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent evaluation is assigned for incapacitating episodes having a total duration of at least 1 week, but less than 2 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. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Under the criteria in effect prior to September 26, 2003, limitation of motion of the cervical spine warrants a 10 percent evaluation if it is slight, a 20 percent rating when moderate and a 30 percent rating when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Under the criteria in effect prior to September 26, 2003, ankylosis of the cervical spine warrants a 30 percent evaluation if it is favorable or a 40 percent evaluation if it is unfavorable. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (2003). Under the criteria effective September 26, 2003, degenerative arthritis of the spine is to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined above), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, 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, the following ratings will apply. A rating of 10 percent is warranted if forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 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. A 20 percent rating is warranted if forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, or the 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 gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted if forward flexion of the cervical spine in 15 degrees or less or favorable ankylosis of the entire cervical spine. 40 percent evaluation is warranted if there is unfavorable ankylosis of the entire cervical spine. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243, an "incapacitating episode" is a period of acute signs and symptoms due to Intervertebral Disc Syndrome that require bed rest as prescribed by a physician and treatment by a physician. 38 C.F.R. § 4,71a, Diagnostic Code 5243. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the cervical spine is 0 to 45 degrees, normal extension is 0 to 45 degrees, normal left and right lateral flexion is 0 to 45 degrees, and normal left and right lateral rotation is 0 to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is to 340 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Fifth, unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Sixth, disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Prior to addressing the merits of the Veteran's appeal, the Board acknowledges that the Veteran's cervical spine disability has resulted in radiculopathy of the bilateral upper extremities. Under Note 1 of the General Rating Formula for Diseases and Injuries of the Spine, associated objective neurologic abnormalities, such as radiculopathy, should be evaluated separately under an appropriate diagnostic code. However, the Veteran is presently in receipt of separate ratings for left and right upper extremity radiculopathy, both ratings assigned as associated with his service-connected cervical spine disorder. The Veteran has not appealed the rating decisions awarding the evaluations for these disorders, and the Board will not discuss whether separate ratings for these conditions are warranted in the instant decision. Disability rating in excess of 20 percent prior to June 1, 2017 A determination by the Social Security Administration (SSA) found the Veteran to be disabled, effective March 2002, based on the following disabilities: disorders of the back and affective disorders. During participation in a VA compensated work therapy (CWT) program in June 2002, the Veteran sustained various injuries, including to his neck, while pushing a serving cart. Thereafter, he complained of soreness in his neck, tingling in both hands and weakness in his right hand. A June 2002 MRI study revealed a small posterior anular tear at C6-7, with no significant spinal canal stenosis or neuroforaminal narrowing. A June 2002 neurology note states that there was no organic reason for the Veteran's complaints of pain, numbness and weakness, and that he was likely embellishing his complaints. An October 2002 VA orthopedic examination report notes that the Veteran's complaints included pain and limited range of motion of his neck. On examination, curvature of the cervical spine was normal. Range of motion was: flexion to 30 degrees; extension to 30 degrees; lateral flexion to 20 degrees bilaterally; and lateral rotation to 20 degrees bilaterally. There was no neurological deficit in the arms; strength was satisfactory in the arms. An October 2002 VA neurologic examination report notes the Veteran's complaints of neck pain and right upper extremity numbness. Cranial nerves II through XII were intact. Sensory and motor examinations were normal. A February 2003 VA examination report notes the Veteran's complaints of constant neck pain with radiation into the right upper extremity and intermittent right hand numbness and tingling. On examination, the neck was tender to palpation. There was no evidence of spasm. Range of motion with pain was: flexion to 20 degrees; extension to 20 degrees; and lateral rotation to 20 degrees bilaterally. Neurological examination revealed no focal strength deficits. Reflexes were intact. On sensation tensing there was a slight decrease to light touch over the medial aspect of the right distal forearm. X-ray studies revealed mild spondyloarthritic changes with no evidence of recent injury. A September 2007 VA examination report notes the Veteran's complaints of constant neck pain with flare-ups precipitated by turning his head. He also complained of pain, numbness and weakness in the upper extremities. The examiner noted that the Veteran was very anxious and touchy. He did not want to be touched due to fear of pain; however, it appeared more of an exaggeration than real pain. Examination revealed no paraspinal tenderness or abnormal curvatures. Range of motion of the cervical spine was from 20 degrees of forward flexion to 30 degrees of extension with continuous complaints of pain. The examiner stated he could not perform repetitive range of motion because of pain complaints. The examiner noted that when the Veteran was casually moving around, lateral flexion to the right side appeared to be about 30 degrees. However, when the examiner was getting ready to measure with goniometer, the Veteran resisted the movements, complaining of pain and only performing up to 20 degrees. Lateral flexion to the left side was the same. The Veteran refused to rotate the neck; however, during conversations, he rotated very easily. The November 2007 rating decision on appeal awarded compensation for multi-level disc disease of the cervical spine pursuant to 38 U.S.C. § 1151 with an evaluation of 20 percent, effective June 4, 2002. VA outpatient treatment records dated from 2008 to 2009 note the Veteran's ongoing treatment for neck pain. The Veteran complained of a stabbing pain in the neck, which was worse when picking things up. He reported that he tried physical therapy, TENS unit and medications, but had no pain relief. In April 2009 examination revealed significant decreased pinprick in the C6 distribution in the right upper extremity. Diagnosis was C6 radiculopathy. An April 2009 MRI report notes that generalized spondylitic disc bulges were seen throughout the cervical spine with spondylitic disc bulge being greatest to the lower three cervical levels and no definitive cervical spinal cord compression. An April 2009 VA examination report notes the Veteran's complaints of constant daily pain, weakness, stiffness, fatigability and lack of endurance. Pain was located at the center of the neck and radiated to the right upper extremity. Pain was described as constant, dull and aching as well as sharp and radiating. The Veteran took Oxycodone every four hours for pain. He reported nightly flare-ups of pain lasting a couple hours or more. Precipitating factors included lifting, carrying, driving and prolonged sitting; alleviating factors included changing position, rest, heat and medications. The Veteran did not use assistive devices for the neck. There had been no episodes of incapacitation in the last 12 months. Examination revealed normal posture, head position, spinal curvatures and symmetry. Range of motion of the cervical spine was: forward flexion to 25 degrees; extension to 10 degrees; left lateral flexion to 15 degrees; right lateral flexion to 10 degrees; and lateral rotation to 30 degrees bilaterally. Combined range of motion of the cervical spine was 120 degrees. A January 2010 VA examination report notes the Veteran's complaints of 10/10 pain despite Percocet therapy. He also complained of spasms, radiation of pain to the upper extremities, weakness, stiffness, fatigability, and lack of endurance. He stated that he had been unable to drive or work for the past year. He reported that a friend helped him get dressed and shave. The examiner noted that the Veteran was uncooperative and his examination was extremely limited. The Veteran refused to turn his neck in either direction, complaining of pain. However, subtle movement of 30 degrees of rotation to the right was observed when the Veteran was losing his temper and complaining about VA after the attempted examination. Likewise, the examiner noted that neurological examination was unreliable and an EMG study was refused by the Veteran. X-ray studies revealed normal alignment and disc spaces. There were moderate spondylosis and mild degenerative disc disease at C5-7, but no significant spinal stenosis or foraminal narrowing. In a statement received in September 2012, the Veteran cited to new evidence from his primary care doctor regarding his neck. He cited to a May 2011 MRI that showed osteophytes at C5-C7, causing flattening on the right ventral aspect of the cord with neuroforaminal stenosis. The Veteran indicated that right lateral flexion was zero to 10 degrees on active motion and zero to 20 degrees on passive motion. VA treatment records received with this statement date up to February 2012. At that time, the Veteran reported worsening pain in the neck with paresthesias in the bilateral upper extremities. The Veteran was noted to most recently undergo an MRI in May 2011. An August 2011 VA treatment note refers to the May 2011 MRI in noting that the Veteran had an osteophyte at C5-C6, causing mild flattening of the right ventral aspect of the cord and moderate right neuroforaminal stenosis. This was noted to be unchanged from 2009, however. The Veteran left treatment abruptly at that time due to a disagreement with his primary care provider, and no physical examination was provided. The treatment referred to by the Veteran in his September 2012 statement when discussing his range of motion appears to be the findings of the April 2009 VA examination, which mirror what the Veteran reported and is discussed in more detail above. A January 2014 VA examination report notes the Veteran's reports of having ongoing pain. The examiner cited to his review of the Veteran's follow-up treatment for his cervical spine since January 2010 that indicated that the Veteran's ongoing issues of pain had contributed to or possibility led to the Veteran's inability to use the right arm. The Veteran also noted that he had headaches. He next reported that flare-ups impacted the function of his cervical spine. When asked to specify, the Veteran indicated that the pain was bad all the time. Range of motion of the cervical spine was: forward flexion to 30 degrees with pain beginning at zero degrees; extension to 10 degrees with pain beginning at zero degrees; left lateral flexion to 15 degrees with pain beginning at zero degrees; right lateral flexion to 10 degrees with pain beginning at zero degrees; right lateral rotation to 30 degrees with pain beginning at zero degrees; and left lateral rotation to 20 degrees with pain beginning at zero degrees. The Veteran was able to perform repetitive use testing without any additional limitation in motion. Contributing factors to the Veteran's functional impairment were less movement than normal, incoordination, impaired ability to execute skilled movements smoothly, and pain on movement. The Veteran had pain and muscle spasm of the cervical spine that resulted in guarding and an abnormal gait or spinal contour. The Board will first consider whether the Veteran is entitled to a disability rating in excess of 20 percent for the period prior to the regulation change which was effective September 26, 2003. The Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for the period prior to the regulation change on September 26, 2003. In this regard, the Board notes that the limitation of motion noted in the medical evidence dated from 2002 to 2010 (noted above) does not represent limitation of motion that is worse than moderate. Therefore, a higher rating under Diagnostic Code 5290 is not warranted. 38 C.F.R. § 4.71a (2003).in Consideration has been given to assigning the Veteran a disability rating under Diagnostic Code 5287. However, the Veteran's cervical spine is not ankylosed so a higher rating under Diagnostic Code 5287 is not in order. 38 C.F.R. § 4.71a (2003). Consideration has also been given to assigning the Veteran a disability rating under Diagnostic Code 5293, the code used to evaluate intervertebral disc syndrome. The evidence of record does not show that the Veteran has suffered from severe attacks of intervertebral disc syndrome. While he certainly has suffered from cervical pain, the examinations of record do not show severe weakness, fatigue, lack of endurance, or incoordination. Moreover, there is no evidence indicating that he has had any incapacitating episodes whatsoever. Without more significant functional limitation, an increased rating for cervical disc disease is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). The Board will now address whether the Veteran is entitled to a disability rating in excess of 20 percent under the revised rating criteria, effective September 26, 2003. The Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his cervical spine disability. In this regard, the Board notes that there is no evidence of record indicating that the Veteran's forward flexion of the cervical spine was limited to 15 degrees or less or that he had ankylosis of the entire cervical spine. In fact, the Veteran's forward flexion was limited, at most, to 20 degrees. (The Board notes that the Veteran has, on a number of occasions, been uncooperative during VA examinations. As a direct consequence of the Veteran's failure to cooperate, the Board has been left with a record that is inadequate to establish that the Veteran is entitled to an increased rating.) Again, there is no evidence indicating that the Veteran has had any incapacitating episodes. Without more significant limitation of motion or incapacitating episodes, an increased rating is not warranted under 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2011). On and after June 1, 2017 Before discussing the factual history for this portion of the appeal, the Board notes that the General Rating Formula applies with or without symptoms such as pain. DeLuca and associated regulations do not apply because a 30 percent evaluation is the maximum allowable disability rating for limitation of motion of the cervical spine. See Johnston v. Brown, 10 Vet. App. 80 (1997). A higher rating under the General Rating Formula is not warranted unless there is unfavorable ankylosis of the entire cervical spine. As noted above, a higher rating is also warranted under the Formula for Rating IVDS. The discussion of the relevant medical records will focus primarily on the factual evidence pertinent to rating the relevant diagnostic criteria for an increased rating. VA provided another examination on June 1, 2017, and this examination served as the basis for the award of an increased 30 percent disability rating for the Veteran's cervical spine disability. Specifically, forward flexion was found to be 15 degrees or less. For a disability rating in excess of 30 percent for the Veteran's cervical spine disorder, the evidence must show unfavorable ankylosis of the entire cervical spine or that the cervical spine disorder resulted in incapacitating episodes having a total duration of at least 4 weeks during a 12 month period. In the June 2017 VA examination, the examiner found that the Veteran had IVDS and that the Veteran suffered from episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the previous 12 months having a total duration of at least two weeks but less than four weeks. The examiner provided this summary with reliance on the Veteran's reports without support from medical documentation. The examiner specifically found that there was no ankylosis of the spine. Based on the evidence of record, an increased rating in excess of 30 percent for the Veteran's cervical spine disability is not warranted on and after June 1, 2017. Throughout the appeal, the VA examiners noted that ankylosis of the cervical spine was not present. . As such, the record shows that the Veteran's disability does not more nearly approximate ankylosis even during flare-ups of the disability. None of the treatment records associated with the claims file reflect that the Veteran's cervical spine was in a fixed position of any kind, or reflect complaints of any of the signs associated with favorable or unfavorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note 5. Further, there is no evidence to suggest that the Veteran was prescribed bed rest from a physician for his cervical spine for a period totalling at least four weeks over a 12 month period. Indeed, the examiner, taking the Veteran's lay statements at face value, noted that the Veteran's IVDS resulted in physician prescribed bed rest for greater than two weeks but less than four weeks. This does not approximate the criteria for an increased 40 percent rating under the formula for rating IVDS. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. ORDER Entitlement to an initial disability rating in excess of 20 percent for the Veteran's cervical spine disorder prior to June 1, 2017, is denied. Entitlement to a disability rating in excess of 30 percent for the Veteran's' cervical spine disorder on and after June 1, 2017, is denied. REMAND The Veteran has maintained that his service-connected spine disorder has resulted in his unemployability prior to June 25, 2015. In an Application for Increased Compensation Based on Unemployability, received in June 2017, the Veteran reported that multilevel disc disease caused his unemployability. He further specified that his disability rendered him too disabled to work on June 1, 2006. The Board notes that in applications for unemployability received in December 2015 and May 2017, the Veteran referred to his shoulder disabilities or the totality of his service-connected disabilities as the reasons he was unemployable. He also indicated that he was unable to secure or follow substantially gainful employment in 2007 and in 2008 in those applications. The Board notes that efforts have been made to contact his last employer to verify the time and circumstances of the Veteran's separation from his most recent employment. However, in a letter dated in June 2017, an individual who used to be involved with the Veteran's latest employer indicated that it would probably be quite difficult to have someone provide records of employment as the property of the hotel that employed the Veteran had been sold to new ownership. In any event, the Veteran has maintained that his cervical spine disorder caused him to be unable to secure or follow substantially gainful employment prior to June 25, 2015. In a September 2007 addendum opinion, a VA examiner noted that the Veteran had numerous psychiatric diagnoses, all nonservice-connected, that would make it difficult for the Veteran to obtain any employment. The examiner then opined that the Veteran's cervical spine disorder would make it even more difficult to maintain gainful employment in manual labor related activities if he obtained such employment. Because the appeal period for the Veteran's claim of entitlement to a TDIU extends before June 25, 2015, the Veteran is only eligible for a TDIU on an extraschedular basis. See 38 C.F.R. § 4.16 (a) (2017). From June 4, 2002, to December 18, 2008, the Veteran's only service-connected disorder is his cervical spine disorder, which is rated as 20 percent disabling during this time period. From December 19, 2008, until January 31, 2012, the Veteran has a combined disability rating of 30 percent, as a 10 percent disability rating was awarded for radiculopathy of the right upper extremity during this time period. From February 1, 2012, to January 7, 2014, the Veteran is in receipt of a 40 percent disability rating, as his right upper extremity rating was increased from a 10 percent disability rating to 20 percent. From January 8, 2014, until June 24, 2015, the Veteran's combined disability rating is 50 percent because the disability rating for radiculopathy of the right upper extremity was increased from 20 percent to 40 percent. For appeal period prior to June 25, 2015, the Board finds that referral to VA's Director of Compensation and Pension is appropriate because the Veteran has maintained that he was unemployable and the evidence is somewhat ambiguous on this matter. Further, beginning December 19, 2008, the Veteran was service-connected for more than just his cervical spine disorder. The Board is unable to make such a determination in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (providing that the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation and Pension if such consideration is warranted). The claim must therefore be remanded for such a referral. Accordingly, the case is REMANDED for the following action: 1. Refer the claim of entitlement to TDIU to the Director of Compensation Service for consideration of whether the Veteran is entitled to TDIU prior June 25, 2015. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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 2014). ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs