Citation Nr: 0809849 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-04 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for postoperative residuals herniated nucleus pulposus lumbosacral spine with thoracic dextroscoliosis T7-8 with residual myofascial syndrome. 2. Entitlement to an initial rating in excess of 10 percent for left shoulder impingement syndrome, status post arthroscopic surgery. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Rebecca N. Poulson, Associate Counsel INTRODUCTION The veteran served on active duty from July 1984 to May 2005. This matter is before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the June 2005 decision, the RO, in pertinent part, granted service connection for (1) postoperative residuals, herniated nucleus pulposus, lumbosacral spine, L5-S1, evaluating it at 10 percent disabling from June 1, 2005, and (2) thoracic dextroscoliosis, T7-8 with residual myofascial syndrome, evaluating it at zero percent disabling from June 1, 2005. The RO issued a notice of the decision in July 2005, and the veteran timely filed a Notice of Disagreement (NOD) in October 2005. The RO provided a Statement of the Case (SOC) in December 2005 and thereafter, in February 2006, the veteran timely filed a substantive appeal. In a November 2006 rating decision, the RO determined that it had committed clear and unmistakable error (CUE) in its June 2005 decision to assign separate evaluations for the veteran's lumbosacral spine and thoracic spine disabilities. The RO continued the postoperative residuals, herniated nucleus pulposus lumbosacral spine L5-S1 and added thoracic dextroscoliosis, T7-8 with residual myofascial syndrome, evaluating this condition at 10 percent disabling from June 1, 2005. The RO supplied notice of this decision in December 2006. The veteran did not disagree with this latter decision. Also in June 2005, the RO granted service connection for left shoulder impingement syndrome, status post arthroscopic surgery, evaluating it at 10 percent disabling from June 1, 2005. In the February 2006 Form 9 that the veteran filed with respect to the above-referenced back issues, he stated "I am also submitting additional information on my shoulder." Attached to the Form 9 was a private provider medical record concerning his left shoulder. The Board construes this correspondence as a timely NOD with the June 2005 RO determination. See 38 C.F.R. §§ 20.201, 20.302 (2007); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (VA must liberally construe all documents filed by a claimant). Congress has created the veterans' benefits system to be both "paternalistic" and "uniquely pro- claimant." See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). VA has a duty to fully and sympathetically develop a claimant's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The record reflects that the RO has not issued the requisite SOC with respect to this issue pursuant to 38 C.F.R. § 20.200, and therefore, the Board must remand this issue for proper issuance of an SOC, and to provide the veteran an opportunity to perfect an appeal of the issue thereafter by filing a timely substantive appeal. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issues on the title page have been recharacterized to more accurately reflect the veteran's claims. The veteran did not request a hearing on this matter. Other Matters In a September 2006 rating decision, the RO denied the veteran's claims for service connection for a cervical spine condition and a lung condition. The veteran has not filed a NOD with respect to either claim. Therefore, these claims are not on appeal. In the June 2005 rating decision, the RO also granted service connection for (1) postoperative residuals, excision, spermatocele, evaluating it at zero percent disabling from June 1, 2005, and (2) scar, postoperative residuals, excision, spermatocele, evaluating it at zero percent disabling from June 1, 2005. The veteran timely filed a NOD in October 2005 with respect to the postoperative residuals, excision, spermatocele issue only. The RO provided a SOC in December 2005. In November 2006, the RO submitted a SSOC with respect to the scar issue. The Board notes that the veteran appealed only the postoperative residuals rating, as opposed to the scar rating. In any event, the veteran did not perfect his appeal for a higher rating for this condition by submitting a substantive appeal. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2007); Roy v. Brown, 5 Vet. App. 554 (1993). Accordingly, the Board does not have jurisdiction over the issue of an increased rating for postoperative residuals, excision, spermatocele. The issue of an increased rating for the veteran's left shoulder disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The veteran's service-connected back disability is manifested by essentially full range of motion of the thoracolumbar spine with subjective complaints of pain; there is no competent evidence of incapacitating episodes of intervertebral disc disease of any duration, a showing of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or an associated compensable neurological disorder, including but not limited to bowel or bladder impairment. CONCLUSION OF LAW The criteria for an initial or staged rating in excess of 10 percent for service-connected postoperative residuals herniated nucleus pulposus lumbosacral spine with thoracic dextroscoliosis T7-8 with residual myofascial syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the veteran with the claim. a. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that an undated letter and a December 2005 letter sent to the veteran by the RO adequately apprised him of the information and evidence needed to substantiate the claim. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, during the pendency of this appeal, on March 3, 2006, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The undated and December 2005 letters clearly disclosed VA's duty to obtain certain evidence for the veteran, such as medical records and records held by any Federal agency, provided the veteran gave consent and supplied enough information to enable their attainment. This correspondence made clear that although VA could assist the veteran in obtaining these records, he carried the ultimate burden of ensuring that VA received all such records. The letters additionally apprised the veteran that VA would schedule a medical examination or obtain a medical opinion for him if the RO determined such to be necessary to make a decision on the claim, and also asked the veteran to provide VA with any other supporting evidence in his possession. The December 2005 letter also provided notice about the type of evidence needed to substantiate the veteran's claim, namely, that his service connected condition was more severe than reflected by the ratings assigned. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did not provide initial rating notice to the veteran prior to the June 2005 RO decision that is the subject of this appeal. However, the Board is cognizant of VAOPGCPREC 8-2003 (Dec. 22, 2003), wherein VA's General Counsel held that a claim-specific notice letter is not required when appealing a "downstream issue" (i.e., a claim for a higher initial rating or earlier effective date) from a decision awarding benefits, where sufficient notice was already provided as to the benefit granted as in this case for the veteran's low back disability. With respect to the Dingess requirements, the veteran was provided with notice of the type of evidence necessary to establish a rating and effective date for a rating in a March 2006 letter. This notice was not provided to the veteran prior to the June 2005 RO decision. Where such a timing error occurred, the Board must presume that the error was prejudicial, and VA bears the burden of rebutting said presumption. Sanders, 487 F.3d at 886, 891 (recognizing that "VCAA notice errors are reviewed under a prejudicial error rule" and holding that "all VCAA notice errors are presumed prejudicial and . . . VA has the burden of rebutting this presumption"); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111-16 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). An error "whether procedural or substantive, is prejudicial when [it] affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield, supra, at 116; accord Sanders, supra, at 891 ("this opinion does not . . . change the rule that reversal requires the essential fairness of the adjudication to have been affected"). That is, "the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication." Mayfield, supra; accord Sanders, supra. " [A]n error is not prejudicial when [it] did not affect 'the essential fairness of the [adjudication],'" see Mayfield, supra, at 121, and non- prejudicial error may be proven by a showing that "the purpose of [VCAA] notice was not frustrated, e.g., by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the [defective] notice what was needed, or (3) that a benefit could not have been awarded as a matter of law." Sanders, supra, at 889; accord Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (determining that no prejudicial error to veteran resulted in defective VCAA notice when the veteran, through his counsel, displayed actual knowledge of the information and evidence necessary to substantiate his claim). Accordingly, "there could be no prejudice if the purpose behind the notice has been satisfied . . . that is, affording a claimant a meaningful opportunity to participate effectively in the processing of [the] claim. . . ." Mayfield, supra, at 128. In the instant case, the Board determines that any presumed prejudice to the veteran as a result of the belated Dingess notice has been rebutted. Timely notice of the two Dingess elements regarding effective dates and disability ratings would not have operated to alter the outcome in the instant case where evidence establishing an increased rating with respect to the veteran's back disability is lacking. Sanders, supra (recognizing that "a demonstration that the outcome would not have been different in the absence of the error would demonstrate that there was no prejudice"). In view of the foregoing, the Board cannot conclude that this defect in notice affected the essential fairness of the adjudication, and therefore, the presumption of prejudice is rebutted. Id. b. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the veteran of its duty to assist in obtaining records and supportive evidence, and the veteran in fact did receive a May 2005 VA general medical examination and a June 2006 VA spine examination, which were thorough in nature and adequate for the purposes of deciding this claim. The Board finds that the medical evidence of record is sufficient to resolve this appeal, and the VA has no further duty to provide an examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the veteran, and thus, no additional assistance or notification was required. The veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, 4 Vet. App. at 392-94. II. Laws and Regulations a. Disability Ratings 38 U.S.C.A. § 1155 sets forth provisions governing disability ratings, and it directs the Secretary to "adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries." The schedule of ratings must provide for ten grades of disability, and no more, ranging from 10 percent to 100 percent in 10 percent intervals, upon which the payments of compensation shall be based. 38 U.S.C.A. § 1155. In addition, "the Secretary shall from time to time readjust this schedule of ratings in accordance with experience." 38 U.S.C.A. § 1155. To this end, the Secretary promulgated 38 C.F.R. § 3.321(a), which requires the use of a "Schedule for Rating Disabilities . . . for evaluating the degree of disabilities in claims for disability compensation . . . and in eligibility determinations." The provisions contained in the rating schedule approximate the average impairment in earning capacity in civil occupations resulting from a disability. 38 C.F.R. § 3.321(a); accord 38 U.S.C.A. § 1155 ("The ratings shall be based, as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations"). Separate diagnostic codes pertain to the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 38 C.F.R. § 4.71a sets forth the schedule of ratings for the musculoskeletal system, to include disabilities of the spine. Under Diagnostic Code 5243, a veteran, 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, will generate a 20 percent rating with forward flexion of the thoracic lumbar spine greater than 30 degrees but not greater than 60 degrees, or a combined range of motion of the thoracolumbar spine not greater than 120 degrees. A veteran will receive a 40 percent rating when he exhibits forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The next higher rating of 50 percent will be awarded when a veteran displays unfavorable ankylosis of the entire thoracolumbar spine, and a veteran will generate the maximum 100 percent evaluation if he has unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). The Board additionally comments that Note (1) accompanying the General Rating Formula for Diseases and Injuries of the Spine advises that the evaluating entity should assess any associated objective neurological abnormalities separately, to include bowel or bladder impairment. 38 C.F.R. § 4.71a, Note (1) (2007). Also, according to Note (2), for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 38 C.F.R. § 4.71a, Note (2) (2007). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2) (2007). With respect to intervertebral disc syndrome (IDS), Diagnostic Code 5243 directs that VA should evaluate this disorder under either the General Rating Formula for Diseases and Injuries of the Spine, outlined above, or under the Formula for Rating IDS Based on Incapacitating Episodes, whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A veteran with IDS who has incapacitating episodes for at least two weeks but less than four weeks during the past year will receive a 20 percent rating, whereas he will generate a 40 percent evaluation with IDS accompanied by incapacitating episodes totaling at least four weeks, but less than six weeks during the past year. A veteran who has IDS and incapacitating episodes for at least six weeks during the past year will garner a maximum 60 percent rating under this Formula. The regulations define "incapacitating episode" as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See Note (2) after 38 C.F.R. § 4.71a, Diagnostic Code 5243. See also 38 C.F.R. § 4.71a, Plate V. In addition, the Board comments that, in addition to a rating for orthopedic impairment (here limitation of motion), the evaluating entity should assess any associated objective neurological abnormalities separately, to include bowel or bladder impairment and radiculopathy. 38 C.F.R. § 4.71a, Note (1). Thus, when a veteran has separate and distinct manifestations attributable to a single injury, he should be compensated for these different manifestations under different Diagnostic Codes. See Esteban v. Brown, 6 Vet. App. 259 (1994). DeLuca Factors The Board will also consider whether this case presents other evidence that would support a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.10, 4.40 ("Disability of the musculoskeletal system is primarily the inability, due to damage . . in 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 these elements"), 4.45, 4.59 (2007); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of a claimant. 38 C.F.R. § 4.40; accord Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Additionally, "[w]eakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled." 38 C.F.R. § 4.40. The Board observes that 38 C.F.R. § 4.40 does not require a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). b. Fenderson Appeal In the instant case, the veteran has challenged the initial disability rating for PTSD, as opposed to having filed a claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (noting distinction between claims stemming from an original rating versus increased rating). The veteran thus seeks appellate review of the RO's initial disability rating because of his dissatisfaction with the 50 percent rating. See id. In a Fenderson appeal, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating. Id. at 126. The Board further notes that the rule that "the present level of disability is of primary importance," does not apply to a Fenderson appeal. Id. (recognizing that this rule "is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability") (internal quotation marks omitted); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (applying rule in increased rating case). Instead, the Board gives consideration to all the evidence of record from the date of the veteran's claim. Fenderson, 12 Vet. App. at 126-27. Additionally, "[w]hen after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the [veteran]." 38 C.F.R. § 4.3. "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 required for that rating." 38 C.F.R. § 4.7. c. Standard of Proof 38 U.S.C.A. § 5107 (West 2002) sets forth the standard of proof applied in decisions on claims for veterans' benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). III. Analysis a. Factual Background In March 1999, the veteran underwent a partial laminotomy and diskectomy. The veteran submitted to a VA general medical examination in May 2005. The examiner noted that the claims file was not available for review. The veteran complained of daily back pain "above the belt line" that radiated to the posterior thighs of both legs. He reported aching and stiffness that became a sharp pain with movement. He rated the pain as 3/10. The pain was alleviated with Motrin and Flexeril three to four days per month. There had been no incapacitation in the previous 12 months. The veteran denied wearing a back brace. He was able to perform the usual activities of daily living, although he reported pain with prolonged bending or running. With respect to his thoracic dextroscoliosis, the veteran complained of occasional pain in his shoulder blade, usually once per week lasting for one day. The pain was alleviated with stretching, heat, and Neurontin. Upon physical examination, the veteran's posture and gait were normal. Curvature of the spine, symmetry, and rhythm of spinal motion were normal. Range of motion of the thoracolumbar spine revealed forward flexion 0-70/90 degrees with pain, extension backwards 0-30/30 degrees without pain. Lateral flexion was 0-30/30 degrees bilaterally without pain. Lateral rotation was 0-30/30 degrees bilaterally without pain. No additional limitations were noted with repetition of movement. The clinician noted objective evidence of painful motion without spasm, weakness, or tenderness. A neurological examination of the lower extremities revealed intact motor, sensory, and deep tendon reflexes. The Lasegue sign was negative. The clinician diagnosed herniated nucleus pulposus of the lumbosacral spine status post surgical repair with residuals, and thoracic dextroscoliosis T7-8 with residual myofascial syndrome. In his February 2006 Form 9, the veteran complained about the May 2005 VA examination. He stated: While I do not yet use a back brace, I did report that I have periods of incapacitation during my physical exam at the VA. I told the examiner that I experience incapacitating episodes two to three days a month. I told the examiner that I will use Motrin or Flexiril to treat the episodes and that I "deal with the pain." Due to the two surgeries I underwent during my last 12 months of Active Duty and the 30 days of convalescent leave associated with each, I did not to go sick call for those episodes and managed to perform my duties in an office environment. The veteran submitted to a VA spine examination in June 2006. The doctor indicated that he had reviewed the claims file. The veteran complained of constant pain across his lower back that radiated during flare-ups to the right thigh posteriorly and to the left lower extremity posteriorly all the way to the big toe. He rated the pain as 4/10. He also complained of sharp, "off and on" thoracic pain that lasted one day, usually caused by driving long distances and using the computer. He rated the pain as 9/10. The veteran denied taking any medication or using a back brace. He also denied numbness, weakness, bladder and blower complaints, or erectile dysfunction. The doctor noted that there was no additional limitation of motion or functional impairment during flare-ups. He further noted that "the veteran's lower back and thoracic spine conditions have no effect on his occupation or usual daily activities." X-rays revealed a normal lumbosacral spine and mild dextroscoliosis of the thoracic spine. Upon physical examination, the veteran had normal range of motion of the thoracolumbar spine. Forward flexion was zero to 90 degrees, extension was zero to 30 degrees, lateral flexion was 0 to 30 degrees bilaterally, and lateral rotation was 0 to 30 degrees bilaterally. There was no pain on motion. Repetitive flexion did not decrease range of motion or spine function. Aside from the thoracic scoliosis, there was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Sensory and motor examinations were normal. The left Achilles reflex was absent, but the remaining reflexes were normal. The Lasegue's sign was negative bilaterally. The doctor diagnosed thoracic dextroscoliosis, strain, and postoperative residuals of a herniated nucleus pulposus. b. Discussion The Board determines that the evidence weighs against an initial or staged rating in excess of 10 percent for the veteran's service-connected postoperative residuals herniated nucleus pulposus lumbosacral spine with thoracic dextroscoliosis T7-8 with residual myofascial syndrome. There is no indication of any appreciable limitation of motion of the thoracolumbar spine, nor is there clinical evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The evidence suggests only that the veteran experiences low back and thoracic pain for which he no longer takes pain medicine. Even considering the pain reported by the veteran, there is no competent medical evidence that the pain causes any additional loss of function. The two examinations noted above showed that the degree of limitation of forward flexion of the thoracolumbar spine present falls far short of 60 degrees; thus a rating in excess of 10 percent is not warranted on that basis. The combined range of thoracolumbar motion shown on both examinations clearly does not more nearly approximate what is required for the next highest rating of 20 percent. See 38 C.F.R. § 4.71a, General Rating Formula after Diagnostic Codes 5235-5243. See also 38 C.F.R. § 4.71a, Plate V. While the veteran has back pain, the physician who examined him in May 2005 specifically noted that there were no additional limitations with repetition of movement. The June 2006 VA examiner reported that there was no additional limitation of motion or functional impairment during flare- ups. The latter examiner added that the veteran's lumbar and thoracic spine conditions had no effect on his occupation or usual daily activities. There is no indication that pain or flare-ups of pain results in additional limitation of motion of the thoracolumbar spine supported by objective findings to a degree that would support a rating in excess of 10 percent .See 38 C.F.R. § 4.40. Both clinical examinations revealed near full range of motion of the back and an X-ray examination of the thoracolumbar spine was normal aside from mild dextroscoliosis. Nor is there any evidence to show that weakness, fatigue, incoordination or any other back symptom or sign, or flare-ups of such symptoms, results in additional limitation of motion to a degree that would support a rating of 20 percent. 38 C.F.R. § 4.45. See also DeLuca, supra. Although the veteran claims that he has incapacitating episodes of back pain once a month lasting two to three days, he has specifically stated that he continues to perform his employment duties during these episodes. The Board notes there is no medical evidence of incapacitating episodes of IDS, let alone such episodes necessitating bed-rest prescribed by a physician. Aside from an absent ankle reflex reported upon the most recent VA examination in June 2006, the neurological examinations at that time and in May 2005 were normal with no sensory or motor deficit or indication of neurological impairment, including but not limited to radiculopathy and bowel or bladder impairment. Thus, there is no showing that the veteran objectively manifested neurological loss of function as a consequence of his service-connected back disability to support a separate compensable rating. Accordingly, a rating in excess of 10 percent is not warranted under 38 C.F.R. § 4.71a, DC 5243. A separate rating under Code 5003 is not appropriate as the veteran's limitation of motion is compensable under joint-specific guidelines. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Extraschedular Ratings As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, whether or not the veteran raised them, including § 3.321(b)(1), which governs extraschedular ratings. The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). There has been no showing by the veteran that his service-connected back disability has necessitated frequent hospitalizations or has resulted in marked interference with employment. In the absence of such factors, the criteria for submission for assignment of an extraschedular rating for his disability pursuant to 38 C.F.R. § 3.321(b)(1) are not satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). IV. Conclusion For the reasons stated above, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent. Thus, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal for an initial or staged rating in excess of 10 percent rating for post- operative residuals herniated nucleus pulposus lumbosacral spine with thoracic dextroscoliosis T7-8 with residual myofascial syndrome must be denied. ORDER Entitlement to an initial or staged rating in excess of 10 percent for post-operative residuals herniated nucleus pulposus lumbosacral spine with thoracic dextroscoliosis T7-8 with residual myofascial syndrome is denied. REMAND In June 2005, the RO granted service connection for left shoulder impingement syndrome, status post arthroscopic surgery, evaluating it at 10 percent disabling from June 1, 2005. In the February 2006 Form 9 that the veteran filed with respect to his lower back issues, he stated "I am also submitting additional information on my shoulder." Attached to the Form 9 was a private provider medical record concerning his left shoulder. The Board construes this correspondence as a timely NOD with the June 2005 RO determination. See 38 C.F.R. § 20.201 (2007). The RO has not yet issued a statement of the case (SOC) with respect to this issue. Regardless of the underlying merits of this issue or whether it must be denied as a matter of law, the RO must provide the appellant an SOC, and afford him an opportunity to perfect an appeal of this issue thereafter by filing a timely substantive appeal. See Manlincon, 12 Vet. App. at 240-41. Accordingly, the case is REMANDED for the following action: 1. The RO should issue a Statement of the Case to the veteran and his representative addressing the issue of entitlement to an increased rating for left shoulder impingement syndrome, status post arthroscopic surgery. The appellant also must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). The appellant has the right to submit additional evidence and argument on the matter or 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. 2007). ______________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs