Citation Nr: 0007416 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-11 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased rating for the residuals of disc fusion of the cervical spine at C5-C6 (cervical spine disability), currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for residuals of disc herniation at L4-L5 (low back disability), currently evaluated as 20 percent disabling. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from January 1977 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 1997 and August 1999 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In the May 1997 rating action, the RO denied the veteran's claims of entitlement to increased ratings for his cervical spine and low back disabilities. In the August 1999 rating decision, the RO denied the veteran's claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The veteran timely appealed these determinations to the Board. During the course of this appeal, in an April 1998 rating decision, the RO increased the evaluation of the veteran's cervical spine disability to 60 percent, effective January 15, 1998, followed by a temporary total evaluation pursuant to 38 C.F.R. § 4.30, which was effective February 16, 1998; thereafter, the RO reduced the evaluation of this disability to 20 percent, effective May 1, 1998. However, because the veteran was granted several extensions of the temporary total evaluation, the current 20 percent evaluation was effective December 1, 1998. During the course of this appeal, the veteran has also been granted a temporary total evaluation for his low back disability, effective from November 20, 1998, to March 31, 1999. In addition, the Board observes that, in the May 1998 Statement of the Case (SOC), the RO identified the November 1997 rating decision, in which it confirmed and continued the May 1997 denial of the veteran's claims for increased ratings for his cervical spine and low back disabilities, as the rating action on appeal. However, subsequent to the RO's preparation of the SOC, the United States Court of Appeals for Veterans Claims) (Court) decided the case of Meuhl v. West, 13 Vet. App. 159 (1999). In Meuhl, the Court held that where, as here, pertinent evidence was presented or secured within one year of the date of the mailing of the notice of the initial decision, that evidence must be considered to have been filed in connection with that claim. See Id. at 161-62. The Board's decision on the veteran's claims for increased ratings for his cervical spine and low back disabilities is set forth below. However, the veteran's claim of entitlement to a TDIU is addressed in the REMAND following the ORDER portion of the DECISION, below. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. In a rating decision dated in April 1998, the RO established entitlement to a 60 percent evaluation for the veteran's cervical spine disability and thereafter, following a period in which a temporary total evaluation was also granted, reduced the evaluation of that disability to 20 percent, without compliance with the requirements of procedural due process set forth in 38 C.F.R. §§ 3.103(b)(2), 3.105(e). 3. The veteran's cervical spine disability, although shown to be productive of pronounced intervertebral disc disease, is not manifested by disability comparable to residuals of a vertebral fracture with cord involvement. 4. Objectively, the veteran's low back disability is manifested by overall moderate to moderately severe limitation of motion of the lumbar spine with pain on motion, which has been clinically shown to radiate to his lower extremities, and the veteran complains of experiencing constant pain; it is at least as likely as not that functional loss due to pain results in impairment in addition to that that shown objectively. CONCLUSIONS OF LAW 1. The reduction of the evaluation for the veteran's service-connected cervical spine disability from 60 percent to 20 percent, without compliance with the requirements of procedural due process set forth in 38 C.F.R. § 3.103(b)(2) (1999) and 38 C.F.R. § 3.105(e) (1999), renders the reduction void ab initio. 2. The criteria for an evaluation in excess of 60 percent for cervical spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5285, 5286, 5293 (1999). 3. With resolution of all reasonable doubt in the veteran's favor, the criteria for a 40 percent evaluation for low back disability have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a; Diagnostic Codes 5285, 5286, 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background In a March 1991 rating decision, the RO established service connection for C5-C6 disc herniation with accompanying osteophytes and assigned a 10 percent evaluation pursuant Diagnostic Code 5290, effective November 5, 1990. In May 1993, the RO increased the evaluation of the disability to 20 percent pursuant to Diagnostic Code 5290-5293, effective March 20, 1992. In October 1996, the veteran filed his current claim for an increased rating for this disability. As discussed in the introduction to this decision, in April 1998, the RO increased the evaluation of the disability to 60 percent, effective January 15, 1998, followed by a temporary total evaluation pursuant to 38 C.F.R. § 4.30, which was effective February 16, 1998. The RO thereafter reduced the evaluation of this disability to 20 percent. Initially, the effective date for the evaluation was May 1, 1998. In a letter, dated April 29, 1998, the veteran was told that of this reduction to 20 percent effective in May 1998 pending a VA examination and receipt of further medical evidence. Because the temporary 100 percent evaluation was subsequently extended, the effective date of the current 20 percent evaluation was later established as December 1, 1998. In December 1994, the RO established service connection for disc herniation at L4-L5 and assigned a 20 percent rating pursuant to Diagnostic Code 5293, effective March 20, 1992. In October 1996, the veteran filed his current claim for an increased rating for this disability. As also noted in the introduction to this decision, although a temporary total evaluation for his low back disability was assigned pursuant to 38 C.F.R. § 4.30 effective November 20, 1998, to March 31, 1999, following that time, his low back disability continued to be evaluated as 20 percent disabling under Diagnostic Code 5293; however, the code was recently changed to 5292. VA outpatient treatment records, dated from April 1996 to August 1997, show that the veteran was seen on numerous occasions for various complaints relating to his cervical spine and low back disabilities. The entries reflect that he had neck pain that radiated to his head, shoulders and hands, numbness of the arms, as well as low back pain that radiated to his lower extremities. In addition, in an August 1997 entry, the examiner reported that the veteran had a 50 percent reduction in his cervical spine range of motion "in all directions." In addition, the records show that, despite treating the disabilities with Flexeril, Naprosyn and Xanax, he complained of having severe pain. The diagnoses were degenerative disc disease of the cervical and lumbosacral spines. In November 1996, the veteran was afforded a VA orthopedic examination. During the examination, the veteran provided a history of having suffered from chronic neck and low back problems since service. In addition, he stated that he was treating the disability with Flexeril, but that it provided "very little relief." The examiner indicated that a review of recent MRIs disclosed that the veteran had a herniated disc at the C4-C5 level and a narrowing at C2-C3. The examination of the cervical spine revealed "restriction of the lateral gaze, both to the right and to the left." The examiner added that the veteran was able to deviate his chin to 30 degrees from the midline on the left and to only 20 degrees from the midline on the right. The examiner further stated that cervical spine flexion and extension were each reduced approximately 50 percent. In addition, with respect to his low back disability, the examine reported that straight leg raising could be accomplished on the examining table to "only" 30 degrees due to pain. X-rays of the cervical spine showed posterior osteophyte formation with foraminal encroachment bilaterally at C3-C4 as well as mild disc space narrowing with uncovertebral hypertrophy at C6-C7. X-rays of the lumbosacral spine revealed disc space narrowing at L4-L5, with a "vacuum disc phenomenon." In addition, degenerative changes, with Schmorl's nodes, were also present at several levels. The examiner, however, did not offer a diagnosis of either condition. Also of record is a January 1997 VA outpatient treatment record, which indicates that the veteran was seen for complaints of neck pain and arm numbness. The entry reflects that the examiner reported that an MRI revealed that the veteran had diffuse stenosis with herniated discs at C3 through C6. In July 1997, the veteran submitted the findings of an MRI of his cervical spine that had been conducted by Dr. Ronald D. Caruso of University Radiology Associates earlier that month. That report indicates that his cord signal was normal and the foramen magnum region was unremarkable. The MRI revealed that the veteran had central disc herniation at C3-C4 at the inferior margin, which extended minimally inferiorly and was associated with a small osteophyte. The examiner also stated that there was contact with the anterior aspect of the cord without any cord compression. Dr. Caruso added that the cerebrospinal fluid (CSF) was not completely effaced posteriorly. There was also mild uncovertebral joint spurring bilaterally with slight foraminal encroachment at this level. According to the report, at C4-C5, the veteran had mild generalized bulging with a broad base posteriorly and associated inferior osteophyte formation, which touched the anterior aspect of the cord without complete effacement of the CSF, which he stated was "borderline" for spinal stenosis. There was also uncovertebral joint spurring with left-sided foraminal encroachment. At C5-C6, there was a large right paracentral disc herniation, "which minimally indents the cervical cord with mild spinal stenosis. In addition, at C6-C7, there was a small central disc herniation that did not cause spinal stenosis and right-sided foraminal encroachment. Dr. Caruso's overall impression was of degenerative disc disease that extended from C4 through C7, with encroachment upon several intervetral foramina and general bulging at C4- C5 and with herniations at other levels, including mild cord compression at C5-C6. The veteran was afforded another VA orthopedic examination in September 1997. During the examination, he reiterated his history of having had chronic neck and low back problems since service. In addition, he complained that he had low back pain that radiated to his right buttock and thereafter down through his right thigh and knee and to his right foot. As a result, the veteran stated that, when ascending stairs, his right leg occasionally "gave out." He further reported that he was employed as a truck driver and that prolonged sitting and "heavy work" exacerbated the disability. In addition, after reviewing the results of recent diagnostic studies, the examiner observed that the veteran had thus far chosen not to undergo back or neck surgery due to fear of losing his job. The examination revealed that the veteran had a "significant" flattening of the lumbar lordosis with little change on flexion and extension. Range of motion studies revealed that his forward flexion was limited to 70 degrees, his backward extension to 15 degrees, his lateral flexion to 25 degrees, bilaterally, and that his lateral rotation was limited to 20 degrees, bilaterally. Further, with respect to the findings on lateral flexion and rotation, the examiner stated that each were accomplished despite "pronounced end range pain;" with respect to forward flexion, he indicated that the veteran exhibited "increased pain with recovery to erect posture." The examination further disclosed that straight leg raising was negative to at least 60 degrees, bilaterally. The diagnoses were chronic low back pain with degenerative disc changes at multiple levels, including a large disc protruding at L4-L5 disc protrusion on 1996 MRI, and chronic pain secondary to multiple level degenerative changes. With respect to the latter diagnosis, the examiner indicated that the veteran was potentially at risk for more dangerous herniation. In addition, although the report does not contain findings with respect to his cervical spine, the examiner stated that chronic pain appeared to be the major manifestation and that, to date, the veteran had declined to undergo cervical spine surgery. He added that actual loss of function or exacerbation limiting movement could not be ascertained without "provocative" testing during times of flare-up. The examiner further stated "However, the consensus has been that he is at increased risk for frank herniation and possible paralysis." In addition, he indicated that he had strongly advised the veteran to consider undergoing the cervical spine surgery. In further support of his claims, in February 1998, the veteran submitted a copy of a report of an MRI that had been conducted earlier that month by Dr. Gordon R. Archibald, as well as a January 1998 report prepared by his private neurologist, Dr. Charles J. Hodge, dated in January 1998. In the January 1998 report, Dr. Hodge noted the veteran's complaints of persistent neck, shoulder and headache pain, as well as a slight tingling sensation in his medial forearm and decreased sensory sensation in his fingertips. He reported that the veteran was taking Xanax and Darvocet for pain during the day and Lorcet for pain in the morning and the evening. In addition, Dr. Hodge stated that the veteran was receiving Cortisone trigger shots in his left and right triceps, but that those injections had provided only minimal relief, and for only brief periods of time. Dr. Hodge discussed his review of recent diagnostic studies, which showed significant degenerative disc disease of the lumbosacral and cervical spines. In addition, the examination revealed that the veteran was not tender about the paraspinal muscles of the lumbosacral or cervical spine. Dr. Hodge added that his cervical spine range of motion was "markedly decreased," although he stated that the veteran had good forward flexion. The neurologist further reported that the veteran had decreased pinprick and light touch sensation about the entire left side of his body, "from his face down to his toes." The diagnosis was cervical herniated nucleus pulposus C5-C6 with myeloradiculopathy. In addition, Dr. Hodge indicated that the veteran was scheduled to undergo an anterior disc fusion and removal at C5-C6. Finally, he said that further discussion and treatment of his low back disability would be deferred pending the results of an MRI, which was scheduled to take place shortly. In February 1998, the veteran underwent the recommended MRI. The February 1998 report, which was prepared by Dr. Archibald, indicates that the veteran had severe disc degeneration at L4-L5 with posterior disc bulging and osteophyte formation. Dr. Archibald also reported that it revealed that there was lateral disc herniation that might be present on either side and suspected that he also had foraminal encroachment, particularly on the right side, where he noted there was almost certainly encroachment upon the right L4 sleeve. The physician further stated that the veteran had facet degeneration of moderate severity at L4-L5 and L5-S1 and mild disc degeneration at L3-L4. A February 1998 hospitalization report reflects that, on February 16, 1998, the veteran underwent an anterior cervical disc fusion at C5-C6 at a private university hospital in New York. Thereafter, in a report dated approximately one month later, Dr. Hodge indicated that the veteran was wearing a neck brace and was doing fairly well, although he continued to have low back problems. However, he commented that he expected that the veteran would be out of work for another six months as a result of his cervical spine surgery. Thereafter, based on the findings contained in Dr. Hodge's January 1998 report and the hospitalization report dated the following month, in April 1998, the RO increased the evaluation of the veteran's cervical spine disability to 60 percent, effective the date of Dr. Hodge's report, i.e., January 15, 1998, which was followed by a temporary total evaluation based on the need for convalescent care. The RO indicated that the evaluation would thereafter be reduced to 20 percent pending review of additional treatment reports and a VA examination. In a May 1998 report, Dr. Hodge indicated that, due to his cervical spine disability and recuperation from surgery, the veteran would be unable to return to work until approximately August 1, 1998. In June 1998, the veteran was again afforded a formal VA examination. During the examination, he reported a history of cervical spine disability consistent with that noted above. The examiner observed that the veteran had undergone neck surgery in February 1998 and indicated that, despite the operation, the veteran continued to complain of having neck pain, which he described as constant and intense. In this regard, the veteran reported that, since the surgery, he has required cortisone injections to treat the pain. The veteran also complained that the disability was productive of a "crunching" sensation in the back of his neck and of decreased range of motion. Further, he stated that he had numbness in his hands and that he was unable to work due to "limitations from his surgery." The examiner indicated that his review of the veteran's records revealed that he was treating the disability with Tylenol 3. In addition, he described the veteran's cervical spine range of motion as "severely decreased." In this regard, he reported that range of motion studies of his cervical spine revealed that the veteran's forward flexion was limited to 20 degrees, extension to 10 degrees and lateral rotation to 20 degrees, bilaterally. In addition, the examiner indicated that there was pain with palpation over the superior trapezii and on both sides of the medial scapular. The examiner added, however, that it was not possible to conduct a complete evaluation of the veteran's cervical spine disability because he "clearly" had not reached maximal medical recovery following his surgery. The diagnosis was chronic neck pain, status post cervical spine fusion at C5-C6. In an addendum to this report, dated in July 1998, the examiner reported that an MRI conducted earlier that month disclosed degenerative disc disease that extended from C3-C4 through C6-C7. In addition, he stated that it also revealed encroachment upon several intervertebral foramina, with herniations at several other levels, including mild cord compression at C5-C6. In further support of his claims, in August 1998, the veteran submitted two reports that were prepared earlier that month by Dr. Hodge. The first report states that the veteran continued to suffer from "significant" neck pain and "difficulty" when he turned his neck, and that doing so was productive of pain. Dr. Hodge also indicated that the veteran had "rather severe" low back pain. With regard to his low back disability, Dr. Hodge stated that the veteran would probably require surgery to treat that disability. In the latter report, Dr. Hodge indicated that the veteran continued to suffer from significant neck pain and difficulty when turning his head. In addition, he reiterated that the veteran had severe low back pain and noted that he was scheduling him for low back surgery in the near future. In August 1998, the veteran was afforded VA orthopedic and neurological examinations. During the orthopedic examination, the veteran complained that, despite undergoing cervical spine surgery in February 1998, he has not had significant pain relief and that he continued to have difficulty turning his head. He also stated that he suffered from low back pain with radiculopathy. The examiner noted that the veteran was scheduled to undergo low back surgery in the near future. The examination of the veteran's neck revealed that that he had mild to moderate tenderness over the area extending from C5-C7. In addition, examiner reported that range of motion studies showed that the veteran had cervical spine forward flexion to 20 degrees and extension to 15 degrees, right lateral flexion to 30 degrees and left lateral flexion to 20 degrees. A physical examination of the veteran's low back revealed mild to moderate tenderness in his lumbosacral paravertebral muscles. Further, range of motion studies disclosed that he had forward flexion to 60 degrees and backward extension to 25 degrees; range of motion findings for other planes of motion were not indicated. The diagnoses were limited motion in the cervical spine with chronic neck pain, status post cervical fusion and low back pain secondary to L4-L5 disc pathology. During the neurological examination, which was conducted one day later, the veteran reported a history and symptomatology of the disabilities consistent with that noted in the orthopedic examination report. The examiner indicated that the veteran had "significant" limitation of motion of the neck; however, no specific findings were reported. In addition, he said that the veteran's gait was steady. The diagnoses were status post cervical spine fusion at C4-C5 with partial resolution of symptoms, although the disability continued to be productive of severe limitation of neck motion, and lumbar spine herniated disc at L4-L5. With respect to the latter disability, the examiner commented that the disability was productive of severe back pain. In November 1998, the veteran underwent an L4 laminectomy and L4-L5 diskectomy, which was performed by Dr. Hodge at a university hospital in New York. Thereafter, in January 1999, another physician at that hospital, Dr. Arnold Criscitiello, stated that the veteran was not able to return to work for approximately six to eight more weeks due to his low back surgery, and indicated that he need to have injections to his lumbar spine to treat pain. In January 1999, the veteran was afforded a VA general medical examination. The veteran reiterated his history of cervical spine and low back disabilities. In addition, the examiner observed that he had recently had surgery to treat each of these disabilities. During the examination, the veteran reported that his cervical spine symptoms had decreased following the surgery, but that he continued to experience cervical spine pain and corresponding limited range of motion, as well as occasional numbness in his fingertips. With respect to his low back disability, the veteran complained that he had pain that radiated to his lower extremities and that he was unable to bend, squat, lift or carry objects, or walk or stand for prolonged periods of time. The examiner reported that the veteran had decreased range of motion of his neck, although no specific figures were offered. In addition, he indicated that the veteran exhibited discomfort in his shoulders and posterior neck during the examination. With respect to his low back, he stated that the veteran exhibited lumbar spine tenderness; no other findings were reported. In addition, he noted that the veteran was scheduled to have a pertinent VA examination to assess the severity of these disabilities early the next month. The diagnoses were status post cervical spine and low back surgery. The February 1999 VA examination was postponed because the veteran was hospitalized due to having had a myocardial infarct. The examination was thereafter conducted in July 1999. During the examination, the veteran complained that he suffered from limited range of cervical spine motion, neck stiffness, headaches and positional discomfort. He also reported having numbness in his fingertips and both hands and arm weakness. In addition, the veteran indicated that he had low back pain with right-sided radiculopathy and leg weakness. Further, he stated that the symptoms were aggravated by standing, lifting, bending, twisting and the extension of his back on lateral flexion. The veteran reported that he treated the pain with hydrocodone and Percocet. Range of motion studies of the veteran's cervical spine revealed that he had forward flexion to 30 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, rotation rightward to 30 degrees and rotation leftward to 25 degrees. Range of motion studies for the veteran's lumbar spine disclosed that he had forward flexion to 55 degrees, backward extension to 25 degrees, lateral flexion bilaterally to 20 degrees, and rotation bilaterally to 35 degrees. Sensation and reflexes were intact for each affected area. X-rays of the cervical spine showed anterior bony proliferative changes of C4 through C7, a prior anterior diskectomy at C5-C6, and mild bony neural foraminal encroachment at C6-C7. X-rays of the lumbar spine revealed anterior bony spurring at L4 and L5 as well as degenerative changes at those levels. The diagnoses were cervical strain secondary to degenerative changes at C4- C7 and low back strain secondary to degenerative changes at L4-L5. Subsequent to offering these diagnoses, the examiner commented that weakness, fatigue and incoordination were "noted" in the examination, but that the veteran would likely experience decreased range of motion during periods of flare-up; however, he stated that he was not able to opine as to the degree of additional loss of cervical spine and low back motion that would accompany those flare-ups. Finally, in numerous statements, the veteran argued that higher ratings for his cervical spine and low back disabilities were warranted due to his constant and severe neck and low back pain, which were productive of recurring attacks with little intermittent relief. He argued that, as a result of the disabilities, he had severe corresponding functional and industrial impairment. Analysis As a preliminary matter, the Board finds that the veteran's claims for increased ratings for his cervical spine and low back disabilities are plausible and capable of substantiation and are therefore well grounded within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service-connected condition has become more severe is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with the duty to assist. Id. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). However, in increased rating claims, the current level of disability is of primary concern. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher evaluation in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). A. Cervical spine disability As a preliminary matter, the Board finds that there is an inferred issue involving whether the RO's April 1998 action, in which it assigned a 60 percent rating, effective January 15, 1998, and thereafter reduced the evaluation to 20 percent following a period in which a temporary total rating was granted, was proper. Because the propriety of the reduction must be resolved prior to addressing the claim for an increased rating, this issue is inextricably intertwined with the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeal) has held that when the Board addresses in its decision a question that has not yet been addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether he or she has been given an adequate opportunity to actually submit such evidence and argument, and whether the SOC provided the claimant fulfills the regulatory requirements. See 38 C.F.R. § 19.29. Unless no prejudice results, the matter must be remanded to the RO. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 19.9. However, for the reasons discussed below, the Board concludes that the reduction was improper. As such, in light of this decision, in which the Board restores entitlement to that evaluation, doing so is not warranted because the veteran has not been prejudiced. The circumstances under which a disability evaluation may be reduced are specifically limited and carefully circumscribed by regulations promulgated by the Secretary of the VA. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). As noted above, in April 1998, the RO reduced the evaluation of the disability from 60 to 20 percent disabling following a period in which entitlement to a temporary total evaluation for convalescent purposes, pursuant to 38 C.F.R. § 4.30, was established. In doing so, the RO did not comply with the requirements of procedural due process set forth in 38 C.F.R. §§ 3.103(b)(2) and 38 C.F.R. § 3.105(e) (1995), which provide that a pretermination/ reduction notice to the veteran and preparation of a rating decision proposing such reduction is necessary before a reduction can be effective. In addition, in doing so, the RO offered no rationale for its action other than that the 20 percent rating would be assigned "awaiting additional treatment reports and VA examination. In addition, 38 C.F.R. § 3.103 provides that, except as otherwise provided in paragraph (b)(3) of that section, no award of compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken. In addition, the Board finds that the exceptions set out in paragraph (b)(3) of this section are inapplicable to the issues on appeal. Further, 38 C.F.R. § 3.105(e) provides that where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (h) of this section, if additional evidence is not received within that period, a final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. See 38 U.S.C.A. § 5112(b)(6) (West 1991); 38 C.F.R. § 3.105(e) (1999). The Board finds that the exceptions set out in paragraph (h) of this section are inapplicable to the issues on appeal. The Court has consistently ruled that VA is not free to ignore its own regulations. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). As the reduction in the evaluation of the veteran's service- connected cervical spine disability did not comply with the requirements of procedural due process set out in 38 C.F.R. § 3.103(b)(2) and 38 C.F.R. § 3.105(e), the reduction is void ab initio. Accordingly, the 60 percent evaluation for this disability under Diagnostic Code 5293, effective the date of the reduction, is restored. The question thus turns to whether the veteran's cervical spine disability warrants an evaluation greater than 60 percent. After a careful review of the record, the Board finds that entitlement to an evaluation in excess of 60 percent is not warranted. The Board has considered whether evaluation of the veteran's disability under any other diagnostic code could result in an evaluation higher than 60 percent. Although the evidence shows that the disability is productive of some cord involvement, in the absence of evidence of, or disability comparable to, a fractured vertebra (Diagnostic Code 5285) or ankylosis of the whole spine (Diagnostic Code 5286), there is no basis for a higher evaluation. Further, there are no other codes under which to consider a higher rating. As such, an evaluation in excess of 60 percent is not warranted. B. Low back disability During the course of this appeal, the veteran's low back disability has alternatively been evaluated as 20 percent disabling under Diagnostic Codes 5292 and 5293. Pursuant to Diagnostic Code 5292, a 20 percent rating is warranted for moderate limitation of lumbar spine motion. A maximum rating of 40 percent under this code requires a showing of severe limitation of lumbar spine motion. In addition, Diagnostic Code 5293 provides for a 20 percent rating for moderate intervertebral disc syndrome with recurrent attacks. A 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks and intermittent relief. A 60 percent evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e. with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. After a careful review of the record, the Board finds that the evidence supports a grant of a 40 percent evaluation for the veteran's low back disability under either Diagnostic Code 5292 or 5293. In reaching this determination, the Board observes that the VA outpatient treatment records dated from April 1996 to August 1997 show that, despite treating the disability with Flexeril, Naprosyn and Xanax, he continued to have significant low back pain and radiculopathy. In addition, the November 1996 VA examination report, the examiner remarked that straight leg raising could be accomplished to "only" 30 degrees due to pain, which was objectively demonstrated. Further, the September 1997 VA examination report shows that he complained that he had low back pain that radiated to his right buttock and thereafter down through his right thigh and knee and to his right foot. The veteran also reported that prolonged sitting and "heavy work" exacerbated the disability. Range of motion studies revealed that his forward flexion was limited to 70 degrees, his backward extension to 15 degrees, his lateral flexion to 25 degrees, bilaterally, and that his lateral rotation was limited to 20 degrees, bilaterally. The above findings comport with a showing of overall moderate limitation of motion of the lumbar spine. However, the Board observes that the examiner commented that, with respect to the findings on lateral flexion and rotation, each was accomplished despite "pronounced end range pain;" with respect to forward flexion, he indicated that the veteran exhibited "increased pain with recovery to erect posture." As such, especially because examination presumably was not conducted during such a flare-up, the Board finds that the veteran likely experiences additional functional loss during flare-ups beyond that which is objectively shown. Although the record does not clearly indicate the extent of the additional functional loss, the Board finds that, with resolution of all reasonable doubt in the veteran's favor, it is at least as likely as not that these findings are consistent with a showing that the veteran's low back disability results in overall functional loss comparable to severe limitation of motion of the lumbar spine. In addition, in his August 1998 report, Dr. Hodge stated that the veteran continued to suffer from "rather severe" low back pain. In addition, in August 1998 VA orthopedic examination report shows that the veteran objectively had moderate limitation of motion of the lumbar spine. Further, in the VA neurological examination report, dated the following day, the examiner commented that the disability was objectively productive of severe low back pain. Moreover, following his November 1998 low back surgery, despite treating the disability with numerous pain medications, the veteran continued to complain of significant low back pain and corresponding functional loss and limitation of motion, and indeed, in January 1999, Dr. Criscitiello indicated that he received injections to his lumbar spine to treat pain. Further, the January 1999 VA general medical examination report reflects that the veteran complained that, as a result of his low back disability, he was unable to bend, squat, lift or carry objects, or walk or stand for prolonged periods of time. In addition, the July 1999 VA examination report reflects that range of motion studies revealed forward flexion to 55 degrees, backward extension to 25 degrees, lateral flexion bilaterally to 20 degrees, and rotation bilaterally to 35 degrees, again consistent with moderate limitation of lumbar spine motion. However, following his diagnosis, the examiner commented that the veteran would likely experience decreased range of motion during periods of flare-up. In this regard, he stated that he was not able to opine as to the degree of additional loss of and low back motion that would accompany those flare-ups. As such, in light of the veteran's functional impairment due to pain, the Board concludes that the veteran's low back disability is manifested by limitation of motion that is comparable to severe limitation of lumbar spine motion in light of the provisions of 38 C.F.R. §§ 4.40 and 4.45; see also DeLuca v. Brown, 8 Vet. App. at 205-7. The Board also concludes that the veteran's service-connected intervertebral is appropriately characterized as severe and thus alternatively warrants a 40 percent evaluation under Diagnostic Code 5293. The Board finds, however, that even when DeLuca factors are taken into consideration, the disability is not productive of symptomatology that warrants an evaluation in excess of 40 under Diagnostic Code 5293. See VAOPGCPREC 36-97 (1997). In reaching this conclusion, the Board reiterates that, in order to warrant a 60 percent evaluation under this code, the disability must be productive of pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy and characteristic pain, demonstrable muscle spasm and an absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Here, although the veteran has been repeatedly diagnosed as having degenerative disc disease and has been noted to suffer from numerous neurological symptoms, including decreased pinprick and light touch sensation as well as pain that radiates to his lower extremities, the evidence is consistently negative for any finding of either muscle spasm or absent ankle jerk. Accordingly, because the evidence does not reflect that the veteran's degenerative disc disease approximates, or most closely approximates, the criteria for pronounced intervertebral disc syndrome, a 60 percent rating under this code is not warranted. The Board also has considered whether evaluation under any other diagnostic code could result in an evaluation higher than 60 percent. In the absence of evidence of, or disability comparable to, a fractured vertebra (Diagnostic Code 5285) or ankylosis of the whole spine (Diagnostic Code 5286), however, there is no basis for evaluation under any other potentially applicable diagnostic code providing for a higher evaluation. C. Conclusion As a final point, the Board notes that the record does not establish that the schedular criteria are inadequate to evaluate either of the service-connected disabilities, so as to warrant the assignment of evaluations higher than 60 percent and 40 percent for his cervical spine and low back disabilities on an extra-schedular basis. In this regard, the Board notes that there is no showing that the disability under consideration has resulted in marked interference with employment (i.e., beyond that contemplated in the assigned evaluations). In addition, there is no showing that the cervical spine low back disabilities have necessitated frequent periods of hospitalization. Indeed, other than during the periods when the cervical spine and low back surgeries were performed, the record does not reflect any hospitalization for either disability; however, it does show that he has recently been hospitalized to treat his heart problems. Further, there is no other consideration that has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence such factors, the Board finds that the criteria for submission for assignment of assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject to the law and regulations governing payment of monetary benefits, a 60 percent rating for residuals of disc fusion of the cervical spine at C5-C6, is granted. Subject to the law and regulations governing payment of monetary benefits, a 40 percent rating for residuals of disc herniation at L4-L5, is granted. REMAND Also before the Board is the veteran's claim of entitlement to a TDIU. Based on a careful review of the claims folder, and in light of the favorable action taken by the Board with respect to his claims for increased ratings for his cervical spine and low back disabilities, the Board concludes that this issue must be remanded for further development and adjudication. In reaching this determination, the Board observes that, although the veteran was afforded numerous VA medical examinations during the course of this appeal, none of the examiners offered an opinion concerning the effects of the veteran's service-connected disabilities, either individually or in the aggregate, on his ability to obtain or retain employment. However, the duty to assist requires that VA obtain such an opinion. See Colayang v. West, 12 Vet. App. 524, 538 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In addition, although it appears that the veteran also suffers from significantly disabling nonservice- connected disabilities, the existence or extent of such disabilities is to be disregarded where the service-connected disabilities meet the percentage thresholds identified in the first part of 38 C.F.R. § 4.16(a) (1999). With respect to the veteran's nonservice-connected disabilities, the Board observes that, in a September 1998 report, Dr. Hodge indicated that the veteran was indefinitely disabled due to numerous medical problems. Moreover, as noted above, a VA examination, which was scheduled to take place in February 1999, was postponed because the veteran suffered a myocardial infarct and was thereafter hospitalized at St. Luke's Hospital in Utica, New York. In addition, the claims folder reflects that he was placed on a cardiac transplant list. Notwithstanding the veteran's significant heart problems, in March 1999, Dr. Criscitiello opined that the veteran was totally disabled due to his back disability alone; in doing so, he noted that the veteran had endstage dilated cardiomyopathy and that he was scheduled for a possible heart transplant. In light of the foregoing, the Board is REMANDING the case for the following actions: 1. The RO should obtain and associate with the claims file all outstanding records of treatment of the veteran. This should specifically include any outstanding records from the VA Medical Centers in Syracuse and Rome, New York; St. Luke's Hospital in Utica, New York; Dr. Charles J. Hodge; Dr. Arnold A. Criscitiello; Dr. Ronald Caruso; as well as from any other facility or source identified by the veteran. The aid of the veteran and his representative in securing such records, to include providing necessary authorization(s), should be enlisted, as needed. If any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. After associating with the claims file all available records received pursuant to the above-requested development, the RO should arrange for the veteran to undergo appropriate VA examination(s) to assess the current extent and severity of his service- connected disabilities. It is imperative that the physician who is designated to examine the veteran reviews the evidence in his claims folder, including a complete copy of this REMAND. All appropriate tests and studies, including X-rays and range of motion studies, should be conducted, and all clinical findings should reported in detail. The physician(s) should provide an opinion as to the extent to which the service- connected disabilities, alone and in the aggregate, impact upon the veteran's ability to obtain or retain employment. In doing so, the examiner(s) should specifically comment on the opinion of Dr. Criscitiello, in his March 1999 report, that notwithstanding the veteran's apparent significant heart problems, he is unemployable due to service-connected disabilities alone. The examiner(s) must not weigh the impact of the nonservice-connected disabilities against the impact of the service- connected disabilities, but must confine his or her attention, for the purpose of answering this question, to the impact of the service-connected disabilities standing alone. If the examiner(s) is unable to provide the requested information with any degree of medical certainty, the examiner should clearly so state. The complete rationale for all opinions expressed and conclusions reached should be set forth in a typewritten report. 3. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any requested action is not undertaken, or is deficient in any manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the foregoing requested development, and after completion of any other development deemed warranted by the record, the RO should readjudicate the veteran's claim of entitlement to a TDIU in of the Board's actions with respect to his cervical spine and low back disability claims, as well as all applicable evidence of record and all pertinent legal authority, specifically to include that which has been cited to in the body of this remand. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 5. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished a Supplemental Statement of the Case (SSOC) and given an opportunity to submit written or other argument in response before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to accomplish additional development and adjudication and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals