Citation Nr: 20022047 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 07-11 580 DATE: March 30, 2020 ORDER Entitlement to a compensable rating for residuals of a healed C5 fracture with traumatic arthritis from February 14, 1974 to January 29, 1987; in excess of 10 percent from January 30, 1987 to June 8, 1998; and in excess of 20 percent from June 9, 1998 to April 10, 2003 is denied. Entitlement to a rating of 30 percent for residuals of a healed C5 fracture with traumatic arthritis from April 11, 2003 is granted. FINDINGS OF FACT 1. Consideration of 38 C.F.R. § 3.156(c) insofar as the Veteran is asserting entitlement to a higher rating for his cervical spine disability (i.e., an earlier effective date for the 20 percent rating), is not for application for the Veteran’s increased rating claim. 2. The September 1974, March 1987, September 1991, June 1992, and February 1997 rating decisions which addressed the Veteran’s service-connected C5 fracture residuals are final decisions. 3. The April 2001 Board decision, which denied a rating higher than 20 percent for C5 fracture residuals with traumatic arthritis is a final decision. 4. The Veteran has not alleged a specific error in fact or law in a particular rating decision with any persuasive reasons as to why the result would have been manifestly different but for the alleged error. 5. The Veteran has not demonstrated clear evidence of irregularity to overcome the presumption of regularity regarding whether notification of appellate rights was sent to the Veteran with the September 1974 rating decision. There is no claim from 1974 regarding the Veteran’s C5 fracture residuals that remains pending. 6. The Board has no jurisdiction to reevaluate the disability ratings assigned in the September 1974, March 1987, September 1991, June 1992, and February 1997 rating decisions or the April 2001 Board decision. 7. There is no correspondence from the Veteran or VA treatment record since April 2001 and prior to April 2003 which could constitute a formal or informal claim for an increased rating for C5 fracture residuals. The current claim on appeal was received on April 11, 2003. 8. Since April 11, 2003, the Veteran’s cervical spine disorder has resulted in severe impairment, but not ankylosis or incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period. CONCLUSIONS OF LAW 1. The September 1974, March 1987, September 1991, June 1992, and February 1997 rating decisions and the April 2001 Board decision are final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.104, 3.156, 3.159, 20.302, 20.1103, 20.1100, 20.1103, 20.1104; 38 C.F.R. §§ 19.118, 19.192, 19.192 (1987, 1991); 38 C.F.R. §§ 19.118, 19.153 (1974). 2. The ratings assigned in the September 1974, March 1987, September 1991, June 1992, and February 1997 rating decisions and the April 2001 Board decision cannot be challenged via a freestanding claim, and the Board has no jurisdiction to review the ratings assigned. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.104, 3.105, 3.151, 3.400. 3. The criteria for an evaluation in excess of 30 percent for residuals of healed C5 fracture with traumatic arthritis since April 11, 2003 are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 7104; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.7, 4.71a, Diagnostic Codes 5285, 5287, 5290, 5293 (2003); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2006, August 2006, and September 2008 rating decisions of the Muskogee, Oklahoma RO. As will be discussed in further detail below, in a May 2006 Board decision, the Veteran was granted an earlier effective date of February 14, 1974 for the grant of service connection for residuals of a healed C5 fracture with traumatic arthritis. On the basis of this decision and the Veteran’s arguments that higher ratings should be assigned since February 14, 1974, a statement of the case (SOC), issued in February 2007, subsequently characterized the issues as entitlement to an initial compensable rating for residuals of healed C5 fracture with traumatic arthritis from February 14, 1974 to January 30, 1978, a rating in excess of 10 percent from January 30, 1987, and a rating in excess of 20 percent from June 9, 1998. A June 2014 Board decision was issued which denied entitlement to a compensable rating for residuals of healed C5 fracture prior to January 30, 1987, to a rating higher than 10 percent from January 30, 1987 to June 9, 1998, and to a rating higher than 20 percent from April 19, 2001. The decision excluded consideration of the period from June 9, 1998 through April 18, 2001 on the basis that a final Board decision had been issued addressing the rating for this period in April 2001. The Veteran appealed the June 2014 decision to the United States Court of Appeals for Veterans Claims (Court), and in July 2016, a Memorandum Decision was issued which set aside the Board’s June 2014 decision and remanded the case for readjudication. Because the Court found, and the Board now agrees, that the prior consideration of the periods prior to April 11, 2003 was improper, the Board has recharacterized the issues above as entitlement to increased ratings for residuals of a healed C5 fracture with traumatic arthritis for the stages prior to April 11, 2003 and entitlement to a rating in excess of 20 percent for residuals of a healed C5 fracture with traumatic arthritis since April 11, 2003. The Board notes that in the Veteran’s brief to the Court, he raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The issue of entitlement to a TDIU can arise with an increased rating when the evidence indicates a veteran is unable to maintain gainful employment due to the disabilities on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, the Veteran has already been granted entitlement to a TDIU from January 27, 2003 to April 11, 2003. As the Board finds below that it does not have jurisdiction to review the Veteran’s disability evaluations prior to April 11, 2003, it also does not have jurisdiction to raise the issue of entitlement to a TDIU prior to January 27, 2003, and this period will not be further discussed. Furthermore, in a December 2008 correspondence, the Veteran stated that he did not wish to pursue the issue of entitlement to an earlier effective date for TDIU and that the issue could be dismissed. The issue was therefore withdrawn and would no longer be on appeal on that basis as well. Since April 11, 2003, the Veteran has been assigned a 100 percent total disability rating for his combined disabilities. The Board acknowledges that the Court held in Bradley v. Peake, 22 Vet. App. 280 that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more. In this case, the holding in Bradley is not applicable, because the Veteran was awarded a TDIU not on the basis of a single disability, but on the total impact of his multiple service-connected disabilities. See Bradley, 22 Vet. App at 290. As the Veteran is currently assigned either a TDIU or a 100 percent total rating for the entire period since April 11, 2003, there is no period since the submission of the claim on appeal where the schedular rating is less than total. Therefore, the Veteran’s TDIU claim is moot, and is not found to be before the Board at this time. In April 2007, a videoconference hearing was held before the undersigned. A transcript of that hearing is associated with the record. In May 2010, the Board remanded the case for evidentiary development. In July 2013, the Board remanded the case for another hearing. In December 2013, the Veteran testified at an additional videoconference hearing before a Veterans Law Judge. The Veteran was informed at that time that all judges who participate in a Veteran’s hearings are required to participate in the decision, and therefore the issue would be decided by a panel. See 38 C.F.R. § 20.707; Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The Veteran waived his right to a hearing before the third member of the Board. A transcript of the hearing is of record. In January 2018, the Veteran was informed that the Veterans Law Judge who conducted the December 2013 hearing was no longer at the Board, and he was afforded the opportunity to request another Board hearing. The Veteran did not respond to this correspondence, and it is presumed that he does not desire another Board hearing in place of the December 2013 hearing. The Board therefore finds that a panel decision is no longer required, and this decision has been decided by the Acting Veterans Law Judge who conducted the April 2007 Board hearing. The Board issued a decision in March 2018, which found that the Board did not have jurisdiction to review prior final rating decisions dated in September 1974, March 1987, September 1991, June 1992, and February 1997, and a final April 2001 Board decision. The Board also denied an increased rating higher than 20 percent for the Veteran’s cervical spine disorder, effective April 11, 2003. The Veteran appealed the Board’s decision to the Court, and pursuant to a January 2019 joint motion for remand, the Board’s March 2018 decision was vacated. The basis of the joint motion was that the Board did not discuss whether 38 C.F.R. § 3.156(c) was for application, as it was raised by the Veteran in June 2017. The case is now returned for appellate review. 1. Application of 38 C.F.R. § 3.156(c) The joint motion for remand noted that in June 2017 correspondence, the Veteran’s representative argued that the Veteran was entitled to an earlier effective date for his residuals of a healed C5 fracture with traumatic arthritis pursuant to 38 C.F.R. § 3.156(c) due to newly discovered service treatment records. The joint motion noted that the Board erred in its March 2018 decision by not addressing the Veteran’s argument. The June 2017 statement submitted on behalf of the Veteran argues that an initial VA examination in 1974 was inadequate because it did not address the service treatment records showing treatment for his fracture C5 in 1969, but instead only addressed range of motion. It was further argued that the 1974 VA examination did not seem to address the complete claims file. It was noted that the service treatment records recently obtained indicated that the Veteran was treated for four days and transferred to another unit for 10 days and then transferred to Brooke General Hospital for 21 days. The Veteran’s attorney finally argued that there was no evidence of notice of the 1974 rating decision. The service treatment records available for review at the time of the 1974 rating decision note that the Veteran struck his head in shallow water in April 1969 and was hospitalized for his neck injury from May 1969 to June 1969. The hospital record from the initial injury dated in July 1969 notes that the Veteran suffered a fracture, closed, lateral C5, with no nerve or artery involvement. The injury occurred in April 1969 by diving into a non-post pool in the Republic of Vietnam. His four-poster neck brace was removed in May 1969 and he was giving a soft cervical collar. The Veteran had complaints of pain in August 1969. In September 1969, service treatment records note complaints regarding his hands and fingers. He continued to complain of neck pain in August 1971. The service treatment records added to the record by the Veteran in June 2017 included duplicate copies of the hospital record from the initial injury including the narrative summary noting dates of admission from May 1969 to June 1969. Additional treatment records were not of record previously but essentially include cumulative information that the Veteran suffered a fracture to his C5 when he dove into a pool in April 1969 during a training period. It was noted that he had no paraplegia or paresthesia, but his neck pain had become increased. A May 1969 treatment record noted that the Veteran jumped into a swimming pool (diving) and sustained an injury to the neck in April 1969. He was issued a soft collar brace. Range of motion in the neck was near normal. A June 1969 x-ray noted a normal cervical spine. The Veteran submitted a private medical opinion dated in June 2019 noting that review of the service treatment records showed that the Veteran was in a nearly quadriplegic state as a result of his April 1969 diving accident. The physician determined that the Veteran’s spinal cord injury and symptoms were present at the time of the 1974 VA examination and should have been rated at that time. Under 38 C.F.R. § 3.156(c), notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decision the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include but are not limited to service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met. 38 C.F.R. § 3.156(c)(1)(i). While the service treatment records added to the file in June 2017 were relevant to the claim and some of the records dated in May 1969 had not been previously considered, the Veteran is essentially arguing that they should form the basis of granting a higher rating for his cervical spine disability, effective in February 14, 1974. The newly added service treatment records do not offer any evidence demonstrating any more severe symptoms than were found in the service treatment records that were considered at the time of the prior rating decision. To the extent that the Veteran is arguing that an increased rating is warranted for his cervical spine disability effective prior to April 11, 2003, he must submit a petition to revise the prior final decision based on clear and unmistakable error, which as discussed in more detail below, he has not asserted. Thus, consideration of 38 C.F.R. § 3.156(c) insofar as the Veteran is asserting entitlement to a higher rating for his cervical spine disability (i.e., an earlier effective date for the 20 percent rating), is not for application for the Veteran’s increased rating claim. 2. Entitlement to a compensable rating for residuals of a healed C5 fracture with traumatic arthritis from February 14, 1974 to January 29, 1987; in excess of 10 percent from January 30, 1987 to June 8, 1998, and in excess of 20 percent from June 9, 1998 to April 10, 2003 Procedural History of Appeal In April 2003, the Veteran’s attorney submitted a claim alleging that VA erroneously omitted rating the Veteran for traumatic arthritis since his date of discharge in 1971 under Diagnostic Code 5010. In May 2003, the Veteran’s attorney stated that the Veteran had an informal unadjudicated claim of entitlement to service connection for arthritis, effective 1971. This was interpreted by the RO as a claim of entitlement to an earlier effective date for service connection for C5 fracture residuals, and the claim was denied in an October 2003 rating decision. This decision was then appealed to the Board. In a May 2006 Board decision, the Board considered the Veteran’s claim of entitlement to an effective date prior to April 1, 1974 for the award of service connection for C5 fracture residuals. The Board found at that time that because the RO received the Veteran’s original claim for benefits on February 14, 1974, an effective date of February 14, 1974, two months earlier than the original effective date of April 1, 1974, could be assigned under 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.102, 3.400. The Board also referred the issue of earlier effective dates for higher ratings for the Veteran’s residuals of C5 fracture to the RO for consideration in the first instance. On the basis of the May 2006 Board decision and referral, in July 2006 the RO issued a rating decision continuing the 20 percent evaluation for the service-connected neck disability. The Veteran, through his attorney, submitted a notice of disagreement in September 2006 which argued that the Board decision failed to address whether a compensable rating for C5 fracture was warranted since 1974. The RO then issued a February 2007 SOC which continued the 0 percent evaluation, effective February 14, 1974, the 10 percent evaluation, effective January 30, 1987, and the 20 percent evaluation, effective June 9, 1998. In a May 2010 remand, the Board presented the issue in essentially the same manner as the February 2007 SOC, listing the issues as (1) entitlement to an initial compensable rating for C5 fracture residuals prior to January 30, 1987, (2) entitlement to a rating in excess of 10 percent for C5 fracture residuals prior to June 9, 1998, and (3) entitlement to a rating in excess of 20 percent for C5 fracture residuals since June 9, 1998. Believing the entire period since 1974 to be on appeal, the Board requested that a VA examiner provide a retrospective opinion discussing the Veteran’s C5 fracture symptoms since February 14, 1974. After further development was completed, including an additional remand so that a second Board hearing could be conducted, in June 2014, the Board issued a decision which evaluated all of the Veteran’s medical evidence from his time of service to the present, and denied any higher ratings than those already assigned for all stages dating from February 14, 1974 to the present. The Veteran appealed this decision to the Court, arguing, inter alia, that the 2010 VA examination report was inadequate and that the Board had provided inadequate reasons and bases for its denial of higher ratings for each stage on appeal. The Brief of the VA Secretary, in responding to the arguments of the Veteran’s appeal to the Court, found that the Board had indeed seriously erred, but by addressing the ratings assigned since 1974 at all. The Secretary explained that in April 2003, the Veteran had filed a freestanding claim for an earlier effective date, and that such claims are improper, as they violate the rule of finality, and must be dismissed as a matter of law. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (holding that a freestanding claim for an earlier effective date “vitiates the rule of finality”). In the Court’s July 2016 Memorandum Decision, the Court agreed that many relevant decisions had been rendered since 1974 which had become final, and that “[g]enerally, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded,” citing Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc). The Court stated that in the absence of an exception to the rule of finality, the Board did not have the authority to address the disability ratings assigned in the earlier final decisions. The Court instructed the Board to address whether the Veteran’s 2003 claim or 2006 Board testimony raised a motion for revision on the basis of clear and unmistakable error (CUE), which could potentially allow for the application of an exception to the finality of the prior decisions. See 38 U.S.C. § 5109A (b); 38 C.F.R. § 3.105 (a) (Where assignment of an effective date has become final, a veteran can establish entitlement to an earlier effective date through a finding of CUE in the decision that assigned the effective date he seeks to challenge.). The Court also disagreed with the Veteran’s argument that the 2006 Board decision should be afforded a presumption of regularity, leading to the assumption that it was, in fact, based on correct law, which would lead one to infer that it was actually based not on a freestanding effective date claim, but on an implied claim of CUE. See Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005). The Court found that the 2006 Board decision was not explicitly or implicitly based on CUE, as there was no evidence of a CUE determination in that decision, no indication that it reversed or revised a prior rating decision, and it was based on the application of the benefit of the doubt rule, which is excluded in CUE analysis. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 704 (Fed. Cir. 2000). The Court further noted that in making its finding that the 2006 Board decision had erroneously accepted a freestanding effective date claim, it was not impermissibly revising a prior Board decision which was not on appeal, but was determining that the 2014 Board decision required the Board to address exceptions to the rule of finality because this decision was “required to have been based on the entirety of the law and facts in the record and the Board was not bound by prior decisions in the same claim stream.” See Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003) (the jurisdiction of the Board is plenary, as are its responsibilities to conduct a full review). The Court also rejected the Veteran’s argument that the 2006 Board decision predated and therefore was not required to comply with Rudd, 20 Vet. App. 296 regarding the prohibition of freestanding claims for earlier effective dates. The Court pointed out that it was not judging the correctness of the 2006 decision, but rather the 2014 Board decisions treatment of the appropriate disability rating since 1974 and that this decision postdated Rudd by many years. Finality of Past Decisions The Board has reviewed all of the evidence of record and finds that the period currently on appeal begins on April 11, 2003, and no earlier. In February 1974, after separation from service, the Veteran sought entitlement to service connection for a “neck injury.” In September 1974, the RO issued a rating decision granting entitlement to service connection for a neck disability with a noncompensable rating from April 1974. A claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision or submitting new and material evidence pertinent to the claim. 38 C.F.R. § 20.302. If the appeal is not initiated and perfected within the allowed time period, then the rating decision becomes final. 38 C.F.R. § 20.1103. The record does not reflect that the Veteran submitted a notice of disagreement or any new and material evidence in response to this decision within one year. The next correspondence received by the Veteran, in September 1975, dealt only with a request regarding overpayment of educational benefits. The September 1974 decision is therefore final and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017); 38 C.F.R. §§ 19.118, 19.153 (1974). Approximately thirteen years later, in January 1987, the Veteran sought entitlement to an increased rating for his service-connected neck disability. The RO issued a rating decision in March 1987 which granted an increased rating of 10 percent, effective January 30, 1987. The Veteran did not submit any correspondence which directly disagreed with the March 1987 rating decision, but in April 1987, he did submit correspondence asking for service connection for arthritis of the neck and shoulders which was due to his C5 fracture. This was accepted as essentially a request for an increased evaluation for residuals of C5 fracture, and following an additional VA examination, the RO issued a rating decision in February 1988 that found that no change was warranted to the 10 percent evaluation. The Veteran submitted a notice of disagreement in March 1988, and the RO issued an SOC in April 1988, which found that the evidence failed to show that a rating in excess of 10 percent was warranted. The Veteran did not perfect an appeal via the submission of a substantive appeal and the March 1987 decision is therefore final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103; 38 C.F.R. §§ 19.118, 19.119, 19.121, 19.122, 19.124, 19.129, 19.192 (1987). The Veteran submitted new correspondence in May 1991 stating that he would like to be reevaluated for his service-connected disabilities. A new VA examination was held, and in September 1991, the RO again confirmed the continuation of the 10 percent rating. In May 1992, the Veteran again requested a reevaluation of his back condition. The Veteran was reexamined by a VA examiner, and a June 1992 rating decision continued the 10 percent rating. The Veteran did not submit a notice of disagreement or any new and material evidence in response to these decisions, and the September 1991 and June 1992 rating decisions are final. See 38 C.F.R. §§ 3.104; 38 C.F.R. §§ 20.302, 20.1103 (1992); 38 C.F.R. §§ 19.118, 19.129, 19.192 (1991). In January 1995, the Veteran submitted an Application for Increased Compensation Based on Unemployability, stating that his posttraumatic stress disorder (PTSD), back, and neck disabilities prevented him from working. The Veteran’s cervical spine disorder was reexamined, and in a January 1996 rating decision, the 10 percent rating was continued. The Veteran did not submit a notice of disagreement with this decision or any new and material evidence within one year. The Veteran did submit correspondence in October 1996 which requested that VA reopen his prior service connection claims and amend his original claim to include a lower back condition which was secondary to the cervical spine disorder and elbow, shoulder, right hip, and right knee pain which was secondary to his back. Although he did not specifically request a reevaluation of the cervical spine disorder, his cervical spine was examined at the December 1996 VA examination. The RO then issued a rating decision in February 1997 which continued the 10 percent rating for C5 fracture. The Veteran did not submit a notice of disagreement or any new and material evidence relating to this issue within one year, and the February 1997 rating decision is final. See 38 C.F.R. §§ 3.104; 38 C.F.R. §§ 20.302, 20.1103 (1997). In June 1998, the Veteran submitted a new Application for Increased Compensation Based on Unemployability, stating that he was unable to work due to PTSD and his C5 fracture. The Veteran attended a new VA examination, and based on this evaluation, in an October 1998 rating decision, the Veteran’s C5 fracture residuals were assigned an increased evaluation of 20 percent, effective June 9, 1998. The Veteran did perfect an appeal of this decision, asserting that his C5 fracture residuals should be assigned a rating of 60 percent. In an April 2001 decision, the Board evaluated the medical evidence of record, but found that a rating higher than 20 percent for C5 fracture residuals with traumatic arthritis was not warranted. This Board decision was not appealed to the Court, and it became final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. On April 11, 2003, the Veteran submitted, through his attorney, correspondence which stated that VA erroneously omitted rating the Veteran for traumatic arthritis since the date of discharge in 1971, and specifically referenced the in-service medical findings of cervical traumatic arthritis, the 1987 treatment records showing complaints of severe back pain, stiffness, and muscle spasm, and the 1995 medical diagnosis of an old injury of the neck with limitation of motion and traumatic arthritis. Once a decision on a claim becomes final, it cannot be challenged through a freestanding claim for entitlement to an earlier effective date. See Rudd, 20 Vet. App. at 299-300. Thus, the Board is required to dismiss freestanding claims for entitlement to earlier effective dates. Id; see also DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) (stating there is no such procedure as a freestanding challenge to the finality of a VA decision). In other words, if there is disagreement as to the effective date assigned in a given rating action, it must be timely appealed (within one year of notice of the rating decision assigning the effective date). In cases where this is not done, only a finding of clear and unmistakable error (CUE) could enable an earlier effective date. While it is not entirely clear what type of claim the Veteran was claiming in the April 2003 correspondence, it was ultimately interpreted by the Board in May 2006 as a claim of entitlement to an effective date prior to April 1, 1974, for the award of service connection for a healed fracture of C5. The May 2006 Board decision revised the effective date assigned for the grant of service connection from April 1, 1974 to February 14, 1974, presumably to revise the clerical error which failed to acknowledge that a February 1974 claim had been submitted prior to the April 1974 correspondence received by VA. The Board does not have the authority to revise the May 2006 decision, but as was clearly stated by the Court in its July 2016 Memorandum Decision, the Board is responsible for making a full review of the record and to accurately apply the entirety of the law and facts, without being bound by errors committed in prior Board decisions in the same claim stream. See Prillaman, 346 F.3d 1362. The Board does not have the authority to revise the evaluations assigned prior to the Veteran’s April 2003 claim. The September 1974, March 1987, September 1991, June 1992, and February 1997 rating decisions and the April 2001 Board decision are final and are not subject to revision on the same factual basis. The Board therefore has no authority to reconsider the evaluations assigned up to April 2001 in the absence of a finding of CUE in one of these final decisions. The Board also finds that there is no correspondence from the Veteran since April 2001 and prior to April 2003 which could be construed as an unadjudicated claim for an increased rating for his C5 fracture residuals. Pertinent VA regulations in effect in 2001-2003 provided that a claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 C.F.R. §§ 3.151, 3.155 (2003); Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). While VA should broadly interpret submissions from a veteran, it is not required to conjure up issues not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998). The applicable statutory and regulatory provisions required that VA look to all communications from the appellant, which may be interpreted as applications or claims-formal and informal-for benefits. 38 C.F.R. §§ 3.1 (p), 3.155(a) (2003); see Servello v. Derwinski, 3 Vet. App. 196 (1992). The only correspondence received after the April 2001 Board decision and prior to the April 2003 claim was a March 2002 VA Form 21-22 appointing the Veteran’s attorney, a May 2002 request for a status update from the Veteran’s attorney, an October 2002 Status of Dependents Questionnaire, a January 2003 claim of entitlement to service connection for diabetes and an eye disability, January and February 2003 requests for a copy of the claims file, and a March 2003 VA Form 21-4142 Authorization to Disclose Information. None of these correspondences raised a claim for an increased rating for a cervical spine disorder or other residual of C5 fracture. VA regulations did also allow for the receipt of clinical reports of examination or hospitalization to serve as informal claims for increase where the claim is for an already service-connected condition. 38 C.F.R. § 3.157 (2003); but see 79 Fed. Reg. 57,660 (Sept. 25, 2014). The Veteran did not have any hospitalization for C5 fracture residuals during the period from April 2001 to April 2003, nor did his VA treatment records show any findings indicating that the Veteran’s cervical spine disorder had worsened from its previous condition. The Veteran’s VA treatment records show that in July 2001 he complained of continued pain in his neck, but this is consistent with the previous medical findings of the Veteran’s cervical spine condition, such as the findings of the September 1998 VA examination, at which he reported pain, stiffness, and frequent muscle spasms in his neck. There is therefore no indication that the July 2001 medical record could constitute an informal claim for increase, as it does not reflect a clear increase in severity of the Veteran’s service-connected C5 fracture residuals. The Board also acknowledges the argument that the Veteran’s attorney appears to be making in her April 2003 correspondence, which is that because cervical traumatic arthritis was diagnosed in the Veteran’s service treatment records, this diagnosis constituted an informal claim for benefits, and is therefore an unadjudicated claim that is still pending. The Board finds absolutely no legal or regulatory authority which indicates that a mere diagnosis of a condition in service is sufficient to raise a claim of entitlement to service connection upon separation from service. Just as the mere presence of a diagnosis of a specific disorder in a VA medical report does not establish an intent on the part of a veteran to seek service connection for that disorder, there mere treatment of a condition in service does not indicate that service connection must be assigned upon discharge. See Brannon v. West, 12 Vet. App. 32, 35 (1998). A claim for benefits required submission of the appropriate application form or a communication or action indicating an intent to apply for benefits under VA law. 38 C.F.R. §§ 3.150, 3.155 (1974). The Board has also considered whether the Veteran has raised a claim of CUE in any of the prior rating decisions. Unappealed rating decisions are final, and a final rating decision is not subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of CUE. See 38 C.F.R. §§ 3.104 (a), 3.105. If the evidence establishes that an error which is clear and unmistakable occurred, the prior decision will be reversed or amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be “undebatable” and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). When raising a claim of CUE, a claimant must identify a particular rating decision, describe the alleged error in fact or law with some degree of specificity, and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). The Court has requested that the Board address whether the Veteran’s 2003 claim or his 2006 Board hearing testimony raised a motion for revision on the basis of CUE. The Board finds that they do not. The Veteran’s April 2003 claim discusses past medical records which showed symptoms of pain, muscle spasms, and stiffness in the cervical spine, and then states “VA erroneously omitted rating veteran for traumatic arthritis since date of discharge, 1971, under DC 5010, refer to 5003, 20%, occasional incapacitating episodes.” In the “Conclusion” at the end of the letter, it states that the Veteran requests 20 percent for traumatic arthritis secondary to cervical spine injury and an informal unadjudicated claim for service connection for arthritis effective 1971. On its face, this indicates that the Veteran felt that a separate 20 percent rating for arthritis, which was a residual of his cervical spine injury, was warranted, and that this separate evaluation for arthritis warranted an effective date of 1971. The Veteran did not identify the specific rating decision that he felt contained an error of fact or law, nor did he identify an actual error in fact or law that was committed in any rating decision. While one could maybe infer that he intended to argue that the 1974 rating decision failed to adequately consider his service treatment records when assigning a noncompensable rating, claims of CUE are not entitled to such generous interpretation from VA such that VA is obligated to create arguments on the claimant’s behalf. The CUE claim must be pled with specificity, and here, the Veteran has not provided any actual argument regarding an error of fact or law or identified the rating decision he takes issue with. The Board notes that even if it did accept that the Veteran intended to argue that the 1974 rating decision inadequately considered the service treatment records, this would constitute a disagreement on how the facts were weighed and would not constitute CUE. At the January 2006 Board hearing, the Veteran discussed his neck symptoms over the years and stated that he first applied for service connection after he had surgery in 1974. The Veteran’s attorney agreed with the Veterans Law Judge with her characterization that the Veteran felt his disabilities had “not been properly rated over the years since the time that you first filed the claim.” The attorney stated that the RO had rated the Veteran without having the service medical records. These statements are very similar to those that were asserted in the April 2003 claim. The Board does not find that this testimony raises a valid claim of CUE. While one could again speculate that perhaps the Veteran was indirectly alleging that CUE occurred in the September 1974 rating decision, at no time was this actually stated, and CUE claims must be pled with specificity, including alleging both the specific error of fact or law and the rating decision in which the error occurred. The January 2006 hearing was held following the issuance of the April 2004 SOC which denied entitlement to an earlier effective date for the award of service connection for healed C5 fracture. The Veteran’s May 2004 Form 9 clearly stated that he wished to appeal the denial of “Earlier effective date for [service connection] C5 spine fracture with traumatic arthritis.” The Veteran and his attorney’s assertions that the Veteran’s disability had not been properly rated since he first filed his claim relates very directly to what was actually requested in the April 2004 claim: a request for an earlier effective date for the grant of service connection for the cervical spine disorder and for a separate compensable rating for the disability due to arthritis. The Board does not find any clear indication that the Veteran and his attorney’s statements at the January 2006 Board hearing were not stated in relation to their claim for an earlier effective date and were instead intended to constitute a claim of CUE in a prior rating decision. To the extent that the Veteran’s claims asserted that higher ratings were warranted, the issue of entitlement to increased ratings for C5 fracture residuals was referred in the May 2006 Board decision and led to the appealed rating decision which is currently on appeal. In June 2017, the Veteran also argued that the VA examination he received in 1974 was inadequate because it did not specifically discuss his service treatment records or his complete history of injury. The Board points out that the Veteran was granted service connection for his C5 residuals in 1974, and therefore the question at issue was not his in-service medical history, but rather the current severity of his disability. The Board therefore finds that the Veteran’s assertion does not actually raise a valid CUE issue which pertains to the current issue he is disputing-that a compensable rating should have been assigned in 1974. The Board therefore finds that no valid CUE claim was raised in the 2003 claim, the 2006 Board hearing, or the June 2017 correspondence regarding any prior rating decision. If the Veteran wishes to file a claim for revision of a prior rating decision based on CUE, he should inform the RO as to which decision contained the alleged error, specify the error, and provide reasons in support of his claim. However, as there is no clear and valid claim of CUE in a prior final decision, the Board will neither refer any issue of CUE to the AOJ, nor will it further address the issue of possible CUE in a prior final decision, as it does not have jurisdiction over any such claim. See Phillips v. Brown, 10 Vet. App. 25, 31-32 (1997). In correspondence received in June 2017, the Veteran through his attorney also argued that proper appellate notice was not received with the 1974 rating decision. The Court has held that grave procedural errors may render a decision nonfinal. See Tetro v. Gober, 14 Vet. App. 100 (2000). If VA fails to comply with certain procedural requirements, including an explanation of the procedure for obtaining review of a rating decision, then the claim remains open and is not final. Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). In the current case, there is no evidence establishing that VA failed to provide the Veteran with adequate notice of his appellate rights in 1974. In most instances, VA notice enclosures during the 1970s were not included in a Veteran’s claims folder, and therefore the absence of this notice from the claims file is not unusual. The Veteran has not demonstrated the clear evidence of irregularity that is necessary to overcome the presumption of regularity that attaches to the actions of Government officials to do their jobs properly. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”). The Court has held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Y.T. v. Brown, 9 Vet. App. 195, 199 (1996). While the accompanying notification letter to the 1974 rating decision is not currently in the claims file, this does not constitute clear evidence that such a letter was not sent. Furthermore, even if the Veteran did not receive proper appellate notice in 1974 and his 1974 claim remained pending, it was later adjudicated in subsequent rating decisions that are final and which clearly were accompanied by proper appellate notification. The March 1987 notification letter states that a VA Form 21-8764 was enclosed with the rating decision. The March 1987 rating decision has been found to be final, and therefore any claim for an increased rating for C5 residuals that could have still been pending in 1974 was finalized in March 1987. The Veteran in fact did submit a notice of disagreement with the March 1987 rating decision, but the Veteran did not perfect an appeal. After the October 1998 rating decision, with which the Veteran also received notification of his appellate rights, the Veteran did perfect an appeal and received a final decision from the Board. The Board therefore finds that the Veteran had been fully apprised of his appellate rights and was aware of how to implement the appellate process, and in fact did so. The Board finds that there are no other exceptions to the rule of finality which could be applied to the prior September 1974, March 1987, September 1991, June 1992, and February 1997 rating decisions. These decisions, as well as the April 2001 Board decision, are final decisions and may not be revised. The Board notes that the Veteran has also raised the issues of entitlement to an extraschedular rating prior to April 11, 2003 and alleged that the August 2010 VA examination failed to provide an adequate retrospective opinion regarding the Veteran’s disability during this period, as was instructed by the Board’s May 2010 remand. See Stegall, 11 Vet. App. 268. As the Board does not have jurisdiction over the period prior to April 11, 2003, it is unable to consider referral for extraschedular evaluation, and any failure to obtain an adequate VA opinion regarding this period is harmless error. See 38 C.F.R. § 20.1102 (“An error or defect in any decision by the Board of Veterans’ Appeals which does not affect the merits of the issue or substantive rights of the appellant will be considered harmless and not a basis for vacating or reversing such decision.”). The Board therefore finds that despite the erroneous adjudication of these claims in the now-vacated June 2014 Board decision, it has no jurisdiction to reevaluate the ratings assigned to the Veteran’s service-connected healed C5 fracture with traumatic arthritis prior to April 11, 2003. Prior to the Veteran’s submission of the current claim on appeal on April 11, 2003, his prior claims requesting an increased rating for C5 fracture residuals were properly adjudicated in prior decisions, the decisions became final, and they may not be revised by the Board on the same factual basis. The law is dispositive in this matter, and the claim of entitlement to increased ratings for the entire period from February 14, 1974 to April 10, 2003 must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 3. Entitlement to a rating in excess of 20 percent from April 11, 2003. As has now been established, the appropriate period on appeal is from April 11, 2003, the date the Veteran and his attorney submitted a claim alleging, essentially, that a higher rating for his C5 fracture residuals was warranted. At the hearing in April 2007, it was argued that the Veteran has been almost totally incapacitated by his neck fracture for his entire life. The Veteran testified that he had to wear a cervical collar if he wanted to do anything and that he continues to have muscle spasms. The Veteran indicated that he had not had a doctor prescribe bed rest, but he did take an hour or two of rest each day. At the hearing in December 2013, the Veteran reported significant limitation with use of his upper extremities, including no bending, no lifting, no heavy lifting, and no pushups. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of the 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. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40 ) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 206. The Veteran’s service-connected residuals of a healed C5 fracture were initially rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5285-5290. VA regulation, 38 C.F.R. § 4.27, provides that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned). During the pendency of this appeal, VA promulgated new regulations for the evaluation of disabilities of the spine, effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) (codified at 38 C.F.R. pt. 4). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); VAOPGCPREC 3- 2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The amendments above have established the effective dates without a provision for retroactive application. Thus, the amendments may be applied as of, but not prior to, September 26, 2003. The Board will consider whether higher ratings for the Veteran’s C5 fracture residuals are warranted under any applicable criteria for this disability. Diagnostic Code 5285, which was in effect prior to September 26, 2003, evaluated residuals of vertebra fracture. A 60 percent rating was assigned when it was without cord involvement, but there was abnormal mobility requiring neck brace (jury mast). In other cases, the disability is to be rated in accordance with definite limited motion or muscle spasm, with 10 percent added when there was deformity of the vertebral body. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2003). Although the Veteran has reported that he wore a neck brace immediately after his injury in service, he has not indicated that he continued to require a neck brace, and the August 2010 and December 2013 examinations found that he did not require a neck brace. The Veteran has also not been found to have demonstrable deformity of the vertebral body, and he has not argued that he has such a deformity. The Board therefore finds that the criteria directly under Diagnostic Code 5285 do not apply in the current case, but that the disorder should be evaluated based on his limitation of motion. Under the criteria in effect prior to September 26, 2003, limitation of motion of the cervical spine warranted a 10 percent evaluation if it was slight, a 20 percent evaluation if it was moderate or a 30 percent evaluation if it was severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Ankylosis of the cervical spine warranted a 30 percent evaluation if it was at a favorable angle or a 40 percent evaluation if it was at an unfavorable angle. 38 C.F.R. § 4.71a, Diagnostic Code 5287 (2003). Effective September 26, 2003, the criteria for evaluating disabilities of the spine were revised. The September 2003 regulation amendments provide a general rating formula for diseases and injuries of the spine 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. They provide that to receive a 30 percent rating, there must be forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the cervical spine. A 40 percent rating is assigned when there is unfavorable ankylosis of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5253-5242. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Under revised Diagnostic Code 5293 and new Diagnostic Code 5243, intervertebral disc syndrome is evaluated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under either the regulations in effect at the time of the Veteran’s April 2003 claim or after September 2003, a higher rating of 40 percent requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243; 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Degenerative arthritis established by X-ray shall be rated on the basis of limitation of motion under the appropriate diagnostic code for the appropriate joints. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When limitation of motion is noncompensable, Diagnostic Code 5003 allows for the assignment of 10 percent for each major joint or group of minor joints affected by limitation of motion. Id. As the Veteran has already been assigned more than a 10 percent rating for the entire period on appeal, no higher rating can be assigned based on Diagnostic Code 5003 alone, and this diagnostic code will not be further discussed. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). The Board notes that the Veteran has asserted that he has bilateral upper extremity radiculopathy which is secondary to his service-connected C5 fracture residuals. In an October 2003 rating decision, the Veteran was granted entitlement to service connection for peripheral neuropathy in the right and left upper extremity, effective April 11, 2003. As the symptoms the Veteran has reported in conjunction with this disorder are intermittent pain and numbness in his left upper extremity, the Board finds that service connection for these symptoms, although under a different diagnosis, has already been granted, and to assign an additional separate rating for radiculopathy would constitute the impermissible evaluation of the same manifestation under different diagnoses. See 38 C.F.R. § 4.14. These symptoms are therefore found to be already previously addressed in the October 2003 rating decision, and as the ratings assigned at that time were not appealed, they will not be further discussed by the Board at this time. The Veteran’s medical records do not include any findings that would indicate that a rating higher than 20 percent is warranted. VA progress notes show that the Veteran received ongoing clinical attention and treatment for back pain. Records received from the Social Security Administration (SSA), dated from March 2004 to March 2005, reflect treatment for several disabilities, including chronic back pain. During a clinic visit in March 2005, it was noted that back pain had been stable; it was also noted that the Veteran was able to do his usual activities in spite of pain. The Veteran was afforded a VA examination in July 2003. At that time, it was noted that his current symptoms are pain on any movement of the neck or even the lower back. The Veteran stated that his symptoms were so severe that he could do almost nothing but stay around the house, and he indicated that he had been placed on bed rest for treatment of his neck problems. The Veteran related that any activity that required turning his neck in any direction or lifting caused severe neck and right arm pain. On examination, it was noted that movement of the neck produced radiation of pain into the right shoulder and thoracic spine in the region of the trapezius muscle. There was muscle spasm in the right scapular area and tenderness in that area as well as the vertebral spinous processes of the mid-neck area. The cervical spine had flexion of 0 degrees to 20 degrees, extension of 0 degrees to 20 degrees. Lateral flexion to the right was 0 degrees to 30 degrees, and 0 degrees to 20 degrees to the left. Rotation was from 0 degrees to 40 degrees to the right, and from 0 degrees to 20 degrees to the left. It was noted that range of motion of the cervical spine was additionally limited by pain, but not by fatigue, weakness, lack of endurance or incoordination. At a June 2006 VA examination, the Veteran reported that the pain occurred twice a day and each time lasted for 4 hours and that the pain traveled to the neck and shoulders. The Veteran noted that the pain was elicited by physical activity and was relieved by rest and medication. He stated that this condition did not cause incapacitation. On examination, it was noted that his gait and posture were within normal limits. He required a collar for ambulation because of his neck. The examination revealed no evidence of radiating pain on movement with no evidence of muscle spasm. There was tenderness in the neck. There was no ankylosis of the cervical spine. The cervical spine had flexion of 0 degrees to 45 degrees, extension of 0 degrees to 30 degrees. Lateral flexion was 0 degrees to 30 degrees, bilaterally; and rotation was from 0 degrees to 45 degrees bilaterally. It was noted that the joint function of the spine was additionally limited by pain and weakness after repetitive use, with pain having the major functional impact. He had normal head position with symmetry in appearance. There was also symmetry of spinal motion with normal curvature of the spine. The examiner further stated that there were no signs of intervertebral disc syndrome. Motor function was within normal limits. Sensory function was within normal limits. The Veteran was next afforded a VA examination in August 2010, at which time he stated that he had been having problems with pain and muscle spasm in his neck on and off. The Veteran indicated that he did not take any medication for his neck condition, but he did take some pain and inflammation medication for his lower back condition, which helped relieve his neck pain also. The Veteran stated that he had pain in the lower back of his neck with any movement or any type of work overhead. Gait and posture were normal. There was no kyphosis, lumbar lordosis, flattening, scoliosis, or ankylosis of the cervical spine. No spasm, atrophy, weakness or guarding was noted. He had pain and tenderness with motion. The cervical spine had flexion of 0 degrees to 20 degrees where he stopped due to pain. Extension was 0 degrees to 10 degrees where he stopped due to pain. Lateral flexion was 0 degrees to 15 degrees bilaterally, and the Veteran stopped due to pain. Rotation was from 0 degrees to 25 degrees bilaterally where he stopped due to pain. There was evidence of pain on active range of motion. On examination of the neck, there was no abnormal finding noticed. The musculature of the neck was normal. There was no weakness or instability. There was mild tenderness in the lower part of the neck. There was no spasm noted. There were no abnormal movements, but he was guarding during the movements. The examiner noted that there was no evidence of any muscle impairment, any shoulder impairment, or any neurological impairment. The Veteran has also submitted a medical examination report conducted by Dr. D. M. in December 2013. The Veteran indicated that flare-ups did not impact the function of the cervical spine. The cervical spine had flexion of 0 degrees to 20 degrees where he stopped due to pain. Extension was 0 degrees to 10 degrees where he stopped due to pain. Lateral flexion was 0 degrees to 15 degrees bilaterally, and the Veteran stopped due to pain. Rotation was from 0 degrees to 25 degrees bilaterally where he stopped due to pain. There was evidence of pain on active range of motion. It was noted that there was tenderness and muscle spasms in the cervical spine. No atrophy was noted. The Veteran had not had any incapacitating episodes over the past 12 months. It was noted that the Veteran had daily pain in the cervical region with radiation into the left shoulder and posterior left arm to the level of the left elbow. The Veteran worked his adult life in construction; he was forced to retire in 1994 because he could not work with his upper extremities above his head. Dr. D.M. also provided an extensive medical opinion in December 2013. He wrote that it was his medical opinion that it was at least as likely as not that the Veteran’s severe functional loss of motion had resulted in the equivalent of an unfavorable ankylosis of his entire cervical spine. He indicated that the functional loss may be due to “pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion (as noted in the various compensation and pension examinations).” The Board has reviewed all of the evidence of record and finds that under the old criteria a rating of 30 percent, but no higher, is warranted for C5 fracture with traumatic arthritis since April 11, 2003. Under the rating criteria in effect prior to September 26, 2003, the Board finds that the Veteran has “severe” limitation of motion of the cervical spine which warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Words such as “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Throughout the appeal period, the Veteran has had forward flexion findings of 20-45 degrees, extension of 10-30 degrees, lateral flexion of 15-30 degrees, and lateral rotation of 25-45 degrees. The Veteran has been able to perform repetitive motion, and following repetitive motion at the December 2013 evaluation, his extension improved. The Veteran has had some range of motion in his neck in all directions at all times. The Veteran has had guarding, tenderness to palpation, and spasms, but he has not been found to have any kyphosis, lordosis, atrophy, abnormal movements, or weakness in the cervical spine. Under the old criteria, the Board finds that the Veteran demonstrated on some examinations severe impairment on flexion and extension while he exhibited at worse moderate impairment on lateral flexion and rotation. Since that severe impairment was shown, the Board finds that the criteria for a 30 percent rating were met. Thus, a higher rating under 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003) of 30 percent is assigned. However, at no time during the period since April 2003 is the Veteran shown to have had ankylosis of the cervical spine which is required for a rating in excess of 30 percent based on limitation of motion under either the old or new criteria. In addition, pain and flare-ups did not impair the cervical spine to the level of ankylosis. At every VA examination and the December 2013 private evaluation, the Veteran has had forward flexion to at least 20 degrees, even when taking painful motion into consideration. The August 2010 VA examination found that the Veteran stopped at 20 degrees due to pain, and at the December 2013 evaluation evidence of painful motion began at 20 degrees. There has been no finding, at any time, of any further limitation of motion after repetitive motion or due to flare ups. The December 2013 examiner stated that flare ups did not impact the function of the cervical spine, the August 2010 found no history of flare ups, and the Veteran did not report having flare ups at either of his Board hearings. There is therefore no indication, even when taking the Veteran’s painful motion, repetitive motion, or flare ups, into consideration, that a rating higher than the 30 percent being assigned is warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The Board also finds that an even higher rating based on painful motion alone is not warranted, as the painful motion is a factor already being considered for the higher 30 percent rating. While Dr. D.M. stated, in December 2013, that the Veteran’s functional loss of motion has resulted in the equivalent of unfavorable ankylosis of the entire cervical spine, the clinical findings do not support a finding of ankylosis of the cervical spine. Ankylosis is the “immobility and consolidation of a joint due to disease, injury, or surgical procedure,” and is commonly referred to as a “frozen” joint. Dorland’s Illustrated Medical Dictionary, 94 (32nd Ed. 2012); see also Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (ankylosis is “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” citing Stedman’s Medical Dictionary 87 (25th ed. 1990)). The medical evidence clearly shows that the Veteran’s cervical spine is not “frozen,” and even at the December 2013 private evaluation, his painful motion only began at 20 degrees in flexion and 10 degrees in extension, indicating that he did, in fact, have some range of motion, including some motion in all directions without pain. In August 2010, the VA examiner specifically stated that there was no ankylosis of the cervical spine. Moreover, he reported a finding of mild degenerative changes of the cervical spine with minimal loss of function. The Board therefore finds that the preponderance of the evidence indicates that the Veteran does not have ankylosis of the cervical spine, and therefore no evidence indicating that a rating higher than 30 percent can be assigned under the older regulations or amended regulations. See 38 C.F.R. § 4.71a , Diagnostic Codes 5235-5243 (2019) and under 38 C.F.R. § 4.71a , Diagnostic Code 5287 (2003). There is also no evidence of record indicating that the Veteran has ever had an incapacitating episode due to his cervical spine disability (nothing to indicate any bed rest prescribed by a physician) in any of his treatment records. The Veteran stated at the July 2003 VA examination that he had been placed on bed rest for treatment of his neck problems, but this is not supported by any medical evidence of record, nor is it clear that the Veteran was describing actually incapacitating episodes or when such instances occurred, as the Veteran stated only that he had been placed on bedrest “in Viet Nam, Japan, and the United States” at some point since the initial injury in 1969. The August 2010 VA examiner and the December 2013 private examiner both found that the Veteran had not had any incapacitating episodes, and the June 2006 and December 2013 examiners found that the Veteran did not have intervertebral disc syndrome. At no time has any medical professional found that the Veteran did have an incapacitating episode due to intervertebral disc syndrome. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not apply to the Veteran and he is not entitled to a higher rating under these criteria. 38 C.F.R. § 4.71a, Diagnostic Code 5243; 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). The Board has considered the Veteran’s lay statements regarding the functional impact of his C5 fracture residuals. The Veteran is competent to report his own observations with regard to the severity of pain and the functional difficulty it causes him his right shoulder disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds his statements to be credible and consistent with the rating assigned. To the extent that the Veteran argues his symptomatology is more severe than shown on evaluation, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. Those objective findings did not find symptomatology that would warrant any higher rating than 30 percent for severe impairment. Finally, the Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321 (b). In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321 (b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the first step there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Id. The Board does not find that the evidence presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). Based on the above discussions, the symptoms associated with the Veteran’s C5 fracture residuals with arthritis include pain, limitation of motion, fatigability, difficulty with walking and other physical activity, stiffness, weakness, spasms, and radiating pain that makes raising his arms and lifting objects difficult. These symptoms are symptoms of pain and decreased range of motion and the types of functional impairment as considered in Deluca and are not found to be impairment beyond that which is already contemplated by the rating criteria. The Board acknowledges the Veteran’s assertions that his pain and restricted mobility make his daily life activities far more challenging. The Board sympathizes with the Veteran but does not find that these constitute functional impairments beyond what could be reasonably expected with the pain of his cervical spine disorder. Furthermore, the Veteran has already been granted entitlement to a TDIU and has a combined evaluation of 100 percent, which acknowledges the functional impairment caused by his collective service-connected disabilities. As the Veteran’s symptoms are the type of symptoms contemplated by the Rating Schedule, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the assigned schedular rating is adequate. Therefore, referral for the assignment of extraschedular disability ratings is not warranted. (Continued on the next page)   In sum, the Board finds that the evidence supports a rating of 30 percent, but no higher, for healed C5 fracture with traumatic arthritis since April 11, 2003, and the claim to that extent is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. J. Connolly Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.