Citation Nr: 1402683 Decision Date: 01/22/14 Archive Date: 01/31/14 DOCKET NO. 10-35 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for degenerative arthritis of the lumbar spine, currently evaluated as 20 percent disabling. 2. Entitlement to an initial compensable evaluation for bilateral hearing loss. 3. Entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to service-connected degenerative arthritis of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from June 1958 to April 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. At that time, the record was held open for 60 days for the submission of evidence. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. Following the August 2012 supplemental statement of the case (SSOC) and the July 2013 hearing, VA treatment notes relevant to the issues on appeal were associated with the Virtual VA paperless claims file. The RO has not considered this evidence; however, in a July 2013 statement, the Veteran waived initial consideration of the evidence by the RO. See 38 C.F.R. § 20.1304 (2013). The issues of entitlement to an initial compensable evaluation for bilateral hearing loss and entitlement to service connection for radiculopathy of the bilateral lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran's degenerative arthritis of the lumbar spine is not productive of forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the requirements with respect to the content of the notice were met. Specifically, a June 2008 letter notified him of the evidence needed to substantiate his claim for an increased evaluation. The letter also informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim and explained how disability ratings and effective dates are determined. The letter further provided him with the General Rating Formula for Diseases and Injuries of Spine, and the rating criteria for degenerative arthritis of the spine and intervertebral disc syndrome. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records, including VA treatment notes, have been associated with the claims file and were reviewed in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded VA examinations in July 2008 and May 2012 in connection with his claim for an increased rating. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). During the July 2013 hearing, the Veteran and his representative asserted that the May 2012 VA spine examination was inadequate. First, they implied that the examination was inadequate because the VA examiner did not conduct range of motion testing. During the hearing, the undersigned noted that the May 2012 VA examination report included range of motion test findings. The Veteran subsequently reported that he did not want to perform range of motion tests because the movements hurt his back, but the range of motion testing was, in fact, performed. The Veteran and his representative also suggested that the May 2012 VA spine examination was inadequate because it was performed by a physician's assistant rather than a physician. However, in Cox v. Nicholson, 20 Vet. App. 563 (2007), the Court held that it has never required that medical examinations under section 5103A only be conducted by physicians. As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." In Cox, a nurse practitioner was found to fit squarely into the requirement of section 3.159(a)(1) as a provider competent to provide diagnoses, statements, or opinions. Moreover, as explained by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Board is entitled to assume the competence of a VA examiner, and the appellant bears the burden of persuasion on appeal to show that such reliance was in error. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009), citing Hilkert v. West, 12 Vet. App. 145, 151 (1999) and Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). The Veteran has submitted no evidence to suggest that the physician's assistant who examined him in May 2012 was not competent to perform the examination and prepare a report for adjudication purposes. As such, the Board presumes that the examiner was competent for such purposes. Moreover, the Board finds that the July 2008 and May 2012 VA examinations are adequate to decide the case because, as shown below, they are predicated on a review of the Veteran's medical history, as well as on a physical examination and fully address the rating criteria that are relevant to rating the disability in this case. They consider all of the pertinent evidence of record and adequately address factors not contemplated in the relevant rating criteria, including repetitive range of motion testing findings. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In addition, there is also no objective evidence indicating that there has been a material change in the severity of the Veteran's lumbar spine disability since he was last examined. 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2013). As noted above, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board in July 2013. During the hearing, the undersigned Veterans Law Judge clearly set forth the issue to be discussed and sought to identify pertinent evidence not currently associated with the claims folder. The hearing focused on the elements necessary to substantiate the claim for an increased rating, including the severity, frequency, and duration of his symptoms, and how they impacted his activities of daily living and his ability to work. The Veteran, through his testimony and questioning by his representative, also demonstrated his actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a statement of the case (SOC) and SSOCs, which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2013). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In this case, as explained below, a uniform rating is warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher evaluation for his service-connected lumbar spine disability, which is currently assigned a 20 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 indicates that degenerative arthritis of the spine should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. In addition, 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, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as 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. Id., Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). During a July 2008 VA spine examination, the Veteran reported that he had stiffness, visual disturbances, weakness, numbness, bowel complaints, dizziness, and erectile dysfunction associated with his degenerative arthritis of the lumbar spine. He denied any fevers, bladder disturbance, or malaise. He also indicated that he had constant burning, aching, sharp, and cramping back pain. He rated the severity of the pain 10 out of 10 and stated that the pain was elicited by physical activity and relieved by rest. He reported that he was able to function without medication and that he was not treated for his disability. He related that he had no incapacitation from his low back disorder. He indicated that he had decreased physical activity to his low back pain. The VA examiner noted that the Veteran's posture and gait were within normal limits. He did not require the use of an assistive device for ambulation. An examination of the lumbar spine revealed no evidence of radiating pain on movement or muscle spasm. There was tenderness in the paraspinals. Straight leg testing was negative, bilaterally. There was no ankylosis of the lumbar spine. Range of motion testing showed forward flexion to 45 degrees with pain at 45 degrees; extension to 10 degrees with pain at 10 degrees; right lateral flexion to 20 degrees with pain at 20 degrees; left lateral flexion to 20 degrees with pain at 20 degrees; right rotation to 15 degrees with pain at 15 degrees; and left rotation to 20 degrees with pain at 20 degrees. Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. The examiner opined that the effect of the degenerative arthritis of the lumbar spine on the Veteran's daily activity was mild. In a February 2010 VA treatment note, the Veteran declined cortisone injections to treat his low back pain. He indicated interest in a new back procedure that plumped disc spaces. The physician noted that the Veteran's back pain was very problematic and that the Veteran was not interested in continued treatment with Gabapentin. During May 2010 VA treatment, the Veteran stated that he had a significant increase in low back discomfort around his left flank and down his left leg that worsened when he sat. The examiner noted that the Veteran's gait was not antalgic, and there was no focal weakness upon visual inspection. He indicated that the Veteran had some myofascial pain and seven facet joint pain on palpation and extension. The physician prescribed a trial of daily Lidoderm patches. In a June 2010 VA physical medicine rehabilitation note, the Veteran reported that he had an approximately 40 percent reduction in pain after a one-week trial of a Lidoderm patch. The physician noted that the Veteran's gait was not antalgic and that there was less myofascial pain on palpation of the lumbar spine. The Veteran indicated that he had some bowel irregularity in the past week, which the physician opined was not caused by the patch. The physician noted that a magnetic resonance imaging (MRI) study showed that the Veteran had spondylosis with neuroforaminal stenosis. He also indicated that the Veteran was resistant to injection therapy and he wanted further treatment with a Transcutaneous Electrical Nerve Stimulation (TENS) unit. In another June 2010 VA physical medicine rehabilitation note, the physician opined that, due to the Veteran's age and the severity of the spondylosis at each level of his spine, he was unemployable. In a June 2010 VA treatment note, the Veteran reported that he had some relief of his back pain from Lidoderm patches. During a July 2010 VA physical therapy consultation, the Veteran rated his pain 9 out of 10 in severity. He indicated that it was aggravated by standing and sitting and had no relief with anything. He was issued a TENS unit and electrodes. He indicated that he had partial pain relief with a pain reduction of at least 50 percent in his lumbosacral region after 15 minutes of his initial use of the TENS unit. In a December 2010 VA treatment note, the Veteran rated his pain 10 out of 10 in severity. The examiner noted that the Veteran "adamantly" declined any treatment for the pain. The Veteran reported that he intermittently used a TENS machine and had used Lidocaine patches that helped significantly relieve his pain. During December 2011 VA treatment, the Veteran stated that he did not want narcotics to treat his chronic back pain. The examiner noted that the Veteran had not tolerated Gabapentin due to ataxia and had considered glucosamine. During a May 2012 VA spine examination, the Veteran indicated that he had pain from the middle of his lower back down his leg. He denied any increased pain with bending or standing, but he related that sitting for over five to ten minutes increased his pain. He stated that he was not treated for his low back pain. He also denied any flare-ups which impacted the function of the thoracolumbar spine. Range of motion testing showed forward flexion to 70 degrees; extension to 30 degrees or greater; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 20 degrees; and left lateral rotation to 20 degrees. There was no objective evidence of painful motion during range of motion testing, and the Veteran was able to perform repetitive use testing with three repetitions. He had no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing, and he had no functional loss or impairment of the thoracolumbar spine. He had no localized tenderness or pain to palpation for the joints and soft tissue and no guarding or muscle spasm of the thoracolumbar spine. Muscle strength, reflex, and sensory testing were also normal, and straight leg raise testing was negative, bilaterally. The examiner noted that the Veteran did not have intervertebral disc syndrome. The Veteran did not use any assistive devices to ambulate. The examiner also noted that the Veteran did not have any neurologic abnormalities, including bowel or bladder problems or pathologic reflexes, related to his thoracolumbar spine disorder. The examiner noted that a September 2009 MRI of the lumbar spine showed lumbar spondylosis and degenerative disc disease producing moderate bilateral neuroforaminal stenosis at L4-L5 and L5-S1 without significant spinal canal stenosis. He opined that the Veteran's low back disorder did not impact his ability to work. In a June 2012 VA treatment note, an examiner prescribed the Veteran ibuprofen three times per day, as needed, for chronic back pain. During the July 2013 hearing, the Veteran reported that he had intermittent low back pain that he rated as 8 to 10 out of 10 in severity. He indicated that there were times when he was incapacitated and was unable to get out of bed due to his low back pain. He also suggested that he had bowel impairment related to his lumbar spine disorder. He noted that he had increased back pain when he tried to get out of bed in the morning, but once he was out of bed and walking, he "warm[ed] up a little bit." He related that he received VA treatment in the past, but it did not help his symptoms. He indicated that he wore a back brace that helped to take the pressure off of his low back when he walked. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation in excess of 20 percent for his lumbar spine disability. The Veteran has not been shown to have forward flexion of the thoracolumbar spine to 30 degrees or less. In this regard, the July 2008 VA examination revealed forward flexion to 45 degrees, and the May 2012 VA examination showed forward flexion to 70 degrees. Neither of the flexion measurements meet the criteria for the 40 percent evaluation, even considering the measurements when pain starts. Thus, the Board concludes that the preponderance weighs against a finding that the Veteran has forward flexion limited to 30 degrees or less. Moreover, the Veteran has not been shown to have favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Based on the aforementioned range of motion findings, the record shows that the Veteran's lumbar spine is not fixated or immobile, and the July 2008 VA examiner specifically noted no ankylosis. While the noted ranges of motion were limited by pain throughout the appeal period, these findings are consistent with and fully contemplated by the 20 percent rating currently assigned. In addition, there is no indication that the Veteran has had incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. As previously noted, an incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board acknowledges that, during the hearing, the Veteran reported that he was unable to get out of bed due to his back pain and that a physician told him that he should rest in bed. However, the Veteran also stated that the physician did not prescribe a timeframe for the Veteran to stay in bed and rest. A review of the records and the remainder of the evidence also does not reflect that the Veteran was prescribed bed rest for at least 4 weeks but less than 6 weeks during the past 12 months for his lumbar spine disability. There is no record that the Veteran was actually prescribed bed rest at any time during the period on appeal. Moreover, both VA examinations show that the Veteran does not even have intervertebral disc syndrome. As such, to the extent this criteria is for application, the Veteran has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his pending claim of entitlement to service connection for radiculopathy of the bilateral lower extremities, discussed below. See Bierman v. Brown, 6 Vet. App. 125, 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that, during the July 2013 hearing, the Veteran suggested that his lumbar spine disability caused bowel impairment. Specifically, he stated that bowel movements required increased effort. He also indicated during the July 2008 VA examination that he had erectile dysfunction. However, the July 2008 VA examination report documents normal neurological findings, and the May 2012 VA examiner specifically stated that the Veteran did not have any neurologic abnormalities, including bowel or bladder problems or pathologic reflexes, related to his thoracolumbar spine disorder. In weighing this evidence, the Board finds that the VA examiners' findings are more probative than the Veteran's lay assertions. The examiner made their findings relying on objective testing and physical examinations and using their medical training, knowledge, and expertise. Thus, while the Veteran may be competent to report symptoms, the Board finds that the VA examiner's conclusions that he does not have neurological abnormalities related to his lumbar spine disability to be of greater probative weight. Moreover, to the extent that the Veteran has reported experiencing weakness and numbness, the Board is remanding the issue of entitlement to service connection for radiculopathy for further development. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the July 2008 VA examiner noted that joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. In addition, the May 2012 VA examiner noted that the Veteran had no additional limitation in range of motion of the thoracolumbar spine following repetitive use testing, and he had no functional loss or impairment of the thoracolumbar spine. As such, the disability does not more nearly approximate the criteria for the 40 percent evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's lumbar spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, to include his chief complaints of pain and limitation of motion. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbar spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An increased rating for degenerative arthritis of the lumbar spine, currently evaluated as 20 percent disabling, is denied. REMAND In this case, the Veteran was last provided a VA examination in connection with his current claim of entitlement to an initial compensable evaluation for bilateral hearing loss in May 2012. During the July 2013 hearing, the Veteran testified that his hearing loss had worsened since that examination. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's bilateral hearing loss. This VA examination should also include a statement as the effect of his hearing loss on his occupational functioning and daily activities. See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). With respect to the Veteran's claim of entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to the service-connected lumbar spine disability, the Board notes that in the May 2012 VA spine examination report, the examiner noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. In the May 2012 VA peripheral nerves examination report, the examiner noted that the Veteran reported severe constant pain, paresthesias and/or dyesthesias, and numbness in his bilateral lower extremities. He indicated that reflex and sensory examinations of the bilateral lower extremities were normal, and he reported a normal examination of the lower extremity nerves with no radiculopathy found. During the July 2013 hearing, the Veteran's representative requested that the Veteran be scheduled for a VA examination with a neurologist to evaluate his bilateral lower extremity symptoms. Therefore, on remand, the RO/AMC should provide the Veteran with a VA neurology examination to determine the nature and etiology of his claimed radiculopathy of the bilateral lower extremities. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral hearing loss and claimed radiculopathy symptoms. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. 2. After securing any outstanding VA and/or private treatment records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected bilateral hearing loss. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including the Maryland CNC test and a puretone audiometry test. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should comment on the severity of the Veteran's bilateral hearing loss and report all signs and symptoms necessary for rating the disability. The examiner should also include a statement as to the effect of the Veteran's hearing loss on his occupational functioning and daily activities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any radiculopathy of the bilateral lower extremities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including any necessary neurological testing. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The Veteran has claimed that he has radiculopathy of the bilateral lower extremities that is secondary to his service-connected lumbar spine disability. He testified during his July 2013 hearing that the disorder began sometime in the 1990s. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether the Veteran has had radiculopathy of either lower extremity at any point during the pendency of the appeal. For each diagnosed disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to his service. He or she should also state whether it is at least as likely as not that the disorder was caused by or aggravated by his service-connected lumbar spine disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 4. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC should implement corrective procedures. 5. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. Thereafter, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs