Citation Nr: 1808658 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-15 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) from December 1, 2014 to February 6, 2015, for status-post fusion of C5-C6. 2. Entitlement to an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) from December 1, 2014 to February 6, 2015, for cervical radiculopathy, left upper extremity. 3. Entitlement to an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) from December 1, 2014 to February 6, 2015, for cervical radiculopathy, right upper extremity. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1994 to April 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's claims for an increased rating for status-post fusion of C5-C6 and bilateral upper extremity radiculopathy on a schedular basis. The Veteran testified before the undersigned at a June 2011 RO (Travel Board) hearing. A hearing transcript has been associated with the claims file. The Board denied the Veteran's claims for an increased rating for status-post fusion of C5-C6 and bilateral upper extremity radiculopathy on a schedular basis only in a December 2011 decision. The Board then remanded these claims for consideration of an increased rating on an extraschedular basis on December 2011 and November 2012. In a July 2013 rating decision, the Veteran's cervical radiculopathy of the left upper extremity was increased to 20 percent and the Veteran's cervical radiculopathy of the right upper extremity was increased to 30 percent, effective April 24, 2013. In February 2014, the Veteran filed a claim for a temporary total evaluation for a service-connected condition requiring convalescence, in accordance with 38 C.F.R. § 4.30, due to a cervical spine fusion. In a July 2014 rating decision, such entitlement was granted effective February 7, 2014, with an indication that a future VA examination would be provided in September 2014. In an August 2014 decision, the Board denied the Veteran's claims on an extraschedular basis prior to September 17, 2009, and beginning on January 1, 2010 to February 6, 2014. At the time of the August 2014 Board decision, the Veteran was rated at a 100 percent convalescent rating in accordance with 38 C.F.R. § 4.30 for status-post fusion of C5-C6. As such, the Board remanded the issues of whether the Veteran is entitled to an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) for status post fusion of C5-C6 and cervical radiculopathy of the bilateral upper extremities following the termination of the total convalescent evaluation effective from February 7, 2014. In a November 2014 rating decision, the RO assigned a 20 percent rating for the Veteran's rating for status-post fusion of C5-C6 and bilateral upper extremity radiculopathy, effective from December 1, 2014 (which is the day following the termination of the temporary total convalescent rating). 38 C.F.R. § 4.30. Subsequently, the RO assigned a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from February 7, 2015. 38 C.F.R. § 4.16(a). Accordingly, the claims will be evaluated for increased ratings on an extraschedular basis from the time the temporary total evaluation was no longer in effect (December 1, 2014), until the award of a TDIU on February 7, 2015. FINDINGS OF FACT From December 1, 2014 to February 6, 2015, the case does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW From December 1, 2014 to February 6, 2015, the criteria for an extra-schedular evaluation for status-post fusion of C5-C6, for cervical radiculopathy involving the left upper extremity, and for cervical radiculopathy involving the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 3.321 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Proper notice from VA must inform the claimant of any information and 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. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). By letters dated in January 2012 and January 2013, the RO advised the Veteran of the evidence needed for claim substantiation under an extraschedular basis and explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b). The letters apprised the Veteran of the downstream disability rating and effective date elements for claims, as required under Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that VA's duty to notify has been met. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs), private treatment records, and VA outpatient treatment records have been obtained and associated with the claims file. VA provided the Veteran with adequate medical examinations. The examinations were adequate because they contained a history obtained from the Veteran and thorough examinations relevant to the applicable rating criteria. They also addressed the functional effects caused by the Veteran's disability, to include the effects on her occupation. The Board also finds that there has been substantial compliance with the mandates of the December 2011, November 2012, and August 2014 remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the undersigned identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for extraschedular service connection for her claimed disabilities of the cervical spine and bilateral radiculopathy. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. To the extent any notice deficiencies are perceived, they were cured by further development of the evidence by the Board. In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Rules and Regulations 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). In resolving this factual issue, only the specific factors as enumerated in the applicable rating criteria may be considered. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). 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(2013). 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 already 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 (1994). The Veteran is currently evaluated as 20 percent disabling from December 1, 2014 for status-post fusion of C5-C6 in accordance with the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DC 5242-5237. An evaluation of 30 percent is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. An evaluation of 40 percent is warranted for unfavorable ankylosis of the entire cervical spine. Id. An evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca, 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. The Veteran is currently evaluated as 20 percent disabling for cervical radiculopathy, left upper extremity, from April 24, 2013, as well as 30 percent for cervical radiculopathy, right upper extremity, from April 24, 2013, in accordance with the General Rating Formula for the Musculospiral Nerve. 38 C.F.R. § 4.124a, DC 8514. A 20 percent evaluation is warranted for incomplete paralysis of the bilateral musculospiral nerve that is mild. Id. A 20 percent evaluation is warranted for incomplete paralysis of the minor musculospiral nerve that is moderate. Id. A 30 percent evaluation is warranted for incomplete paralysis of the major musculospiral nerve that is moderate. A 40 percent evaluation is warranted for incomplete paralysis of the minor musculospiral nerve that is severe. Id. A 50 percent evaluation is warranted for incomplete paralysis of the major musculospiral nerve that is severe. Id. A 60 percent evaluation is warranted for paralysis of the minor musculospiral nerve that is complete. Id. A 70 percent evaluation is warranted for paralysis of the major musculospiral nerve that is complete. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The Veteran contends that her current evaluations for her cervical spine and bilateral cervical radiculopathy inadequately contemplate the full scope of her disability. To this effect, the Veteran has provided statements and testimony at her June 2011 Board hearing that these conditions have negatively affected her daily function and abilities to conduct the tasks of motherhood as well as impacted her ability to perform her occupation. In particular, the Veteran has indicated that she works as a criminal investigator and that her job was being reclassified resulting in a decrease in pay of $17,000 annually due to her service-connected cervical spine disorder. Private treatment records show ongoing treatment for cervicalgia and paresthesia of the upper extremities. August 2014 private treatment records show that the Veteran reported left posterior pain, with stiffness and spasm. Aggravating factors included flexion, extension, and rotation. Anterior flexion and extension were noted to be severely restricted, right lateral rotation was mildly restricted, and left lateral rotation was moderately restricted. X-rays from a private facility in August 2014 show cervical fusion, stable from prior. The Veteran was provided with a VA examination to determine the severity of her cervical condition in November 2014. During the November 2014 VA examination, the Veteran reported that since her third spinal fusion surgery in February 2014, she still gets occasional sensation changes of both hands. She did not report any weakness, bowel, or bladder changes. She stated that her condition interferes with all daily activities, such as sitting for long periods of time, lifting, bending, rotation to the right and left. She also reported that she gets some pulling sensation of both shoulders, cervical spine, and some muscle spasms. She stated that her condition interferes with her job and she is on light duty doing desk work. She said is she is no longer able to play sports due to her surgery. No flare ups were reported. Range of motion of the cervical spine was as follows: flexion to 25 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 45 degrees, and left lateral rotation to 45 degrees. Functional loss and/or functional impairment of the cervical spine were noted by less movement than normal and pain on movement. The Veteran was noted to have localized tenderness or pain to palpation for joints/soft tissue of the cervical spine. No muscle spasms or guarding resulting in abnormal gait or abnormal spinal contour were noted. Guarding of the cervical spine not resulting in abnormal gait or abnormal spinal contour was found. Muscle strength testing was all normal. No muscle atrophy was found. Reflexes were normal. The inner/outer forearm and hand/fingers were noted to have decreased sensation to light touch. Radiculopathy was noted, with constant pain in the bilateral upper extremities noted to be mild. Intermittent pain, paresthesia and/or dysesthesias, and numbness were noted to be moderate in the bilateral upper extremities. No other signs or symptoms of radiculopathy were noted. No ankylosis, IVDS, or assistive devices were noted. The Veteran was noted to have scars related to the conditions or treatment of the conditions. Imaging studies were performed and arthritis with interval fusion of C3-C5 was found. The functional impact on the Veteran's ability to work was noted to be that the Veteran has severe limitations in range of motion, constant pain, is unable to perform any physical labor, and is unable to perform sedentary type of work due to numbness of hands and constant pain. In March 2015, the Veteran filed a claim for TDIU claiming that her PTSD, cervical condition, and radiculopathies caused her to become too disabled to work. She claimed that her time lost from work was 7 months beginning February 2000 to February 2015. The Veteran also submitted a statement from the Office of Personnel Management (OPM) from January 2015 showing that she has been approved for disability retirement. Additional correspondence from OPM in January 2015 shows that the Veteran was disabled from her position as a criminal investigator due to HNP cervical, cervicalgia, cervical radiculopathy, low back pain, and lumbar radiculopathy only. In a January 2017 rating decision, the Veteran was granted a TDIU, effective February 7, 2015. The Veteran has not submitted any additional evidence relating to her employment for the period prior to February 2015, to include reassignment of duties, loss of pay, decrease of hours, or lost time due to her disabilities. Analysis As the Veteran's cervical spine disability and associated bilateral radiculopathy affect a common body system, a common discussion of these disabilities shall ensue throughout the remainder of this decision. VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. 38 C.F.R. § 3.321. Under 38 C.F.R. § 3.321(b)(1), to accord justice, in an exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director of Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the United States Court of Appeals for Veterans Claims provided a sequential three-step analysis to determine whether an extraschedular rating is warranted. Step one is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral to the Director of the Compensation and Pension Service for consideration of an extraschedular rating is required. If the schedular rating does not contemplate the level of disability and symptomatology and is found inadequate, then step two is to determine whether there is an exceptional disability picture. If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The governing norm in an exceptional case is: 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 as to render impractical the application of the regular schedular standards. In its decision in December 2011, the Board denied the claim for a rating greater than 40 percent prior to September 17, 2009 and beginning on January 1, 2010 for status-post fusion of C5-C6, a rating greater than 10 percent for cervical radiculopathy, left upper extremity, prior to April 24, 2013 and 20 percent thereafter, and a rating greater than 10 percent for cervical radiculopathy, right upper extremity, prior to April 24, 2013 and 30 percent thereafter. As the Board cannot make a determination as to an extraschedular rating in the first instance, the Board remanded the case to the RO for consideration of an extraschedular rating. Floyd v. Brown, 9 Vet. App. 88, 95 (1996). In its decision in December 2011, the rationale for the referral for extraschedular consideration was evidence suggestive of interference with employment as the Veteran indicated that she would lose nearly $17,000 per annum as a result of reassignment due to her disabilities working as a criminal investigator. In July 2013, in accordance with 38 C.F.R. § 3.321(b)(1), the RO then referred the claim to VA's Director of Compensation and Pension Service for consideration of an extraschedular rating. Thereafter, the VA Director of Compensation and Pension Service determined that an extraschedular rating was not warranted. As the procedural development required by 38 C.F.R. § 3.321(b)(1) and Thun has been completed, namely, referral of the case to VA's Director of Compensation and Pension Service for consideration of extraschedular evaluation in the first instance, the case has been returned to the Board for its review. In its determination, VA's Director of the Compensation and Pension Service found that the evidence did not present such an exceptional or unusual picture as to render impractical the application of the regular schedular standards as the Veteran's cervical spine disability showed ankylosis of the cervical spine only and associated bilateral radiculopathy did not show evidence of impairment at higher than a mild level. Additionally, it was noted that the Veteran had admitted to working full time as a criminal investigator and missed on average only one day of work per month. Also, it was noted that she stated that she had to be reassigned and may be receiving a decrease in pay. Generally, the degree of disability specified in the rating schedule is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Veteran contends that her cervical spine conditions interfere with employment as she has been facing a cut in her normal pay. However, a review of the record is absent for any indication that the Veteran actually sustained lost time from work due to her condition or any pay cuts prior to February 2015. Rather, her statements and treatment records reflect that she was still employed full-time, although in a sedentary capacity, until February 2015, at which point she was granted a TDIU. While the Veteran is competent to describe the symptoms of her cervical spine conditions, the Veteran's statements about missing work because of such, when weighed against all the evidence of record is not persuasive. Based on the foregoing, the symptoms of her cervical spine and associated bilateral radiculopathy as well as reassignment of duties at work are factors encompassed in the rating schedule in general and in the schedular criteria for her cervical spine disability and associated bilateral cervical radiculopathy under Diagnostic Codes 5242-5237 and 8514. The evaluation of 20 percent under Diagnostic Code 5242-5237 for the cervical spine disability is appropriate because it takes into account the limited range of motion of the cervical spine as well as muscle spasm and guarding severe enough to result in an abnormal gait or spinal contour. The next higher evaluation of 30 percent under Diagnostic Code 5242-5237 is not appropriate because there have been no medical findings of forward flexion of the cervical spine to 15 degrees or less for the time period under consideration. Therefore, the schedular evaluation based upon the Veteran's cervical spine symptom presentation is appropriately considered by an evaluation of 20 percent under Diagnostic Code 5242-5237 during the time period in question. The evaluations for the Veteran's bilateral cervical radiculopathy under Diagnostic Code 8514 are appropriate because the medical evidence in November 2014 only showed a moderate presentation of symptoms bilaterally. The medical evidence of record has not shown a severe presentation for either upper extremity. As such, Diagnostic Code 8514 adequately contemplates the Veteran's symptom presentation for her bilateral cervical radiculopathy during the time period in question. Additionally, even if it were shown that the Veteran did receive a pay cut due to her disabilities, the Board notes that the very reason for VA disability compensation in the first place is to bridge the gap of such earning capacity that may result from disabilities. In this case, the Veteran is in receipt of compensation for combined disability throughout the course of the appeal that already takes into account the fact that she has a decreased earning capacity. See 38 C.F.R. § 4.1; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that disability evaluations in and of themselves are recognition of impairment of industrial capabilities). As such, it is noted that a pay cut due to her disabilities is already contemplated under the Schedule for both Diagnostic Codes 5242-5237 and 8514. Therefore, the Veteran has not presented any evidence of an exceptional disability picture. Accordingly, the preponderance of the evidence is against an extra-schedular rating for status-post fusion of C5-C6 and bilateral upper extremity cervical radiculopathy, from December 1, 2014 to February 6, 2015, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). ORDER Entitlement to an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) from December 1, 2014 to February 6, 2015, for status-post fusion of C5-C6 is denied. Entitlement to an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) from December 1, 2014 to February 6, 2015, for cervical radiculopathy, left upper extremity is denied. Entitlement to an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) from December 1, 2014 to February 6, 2015, for cervical radiculopathy, right upper extremity is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs