Citation Nr: 0810282 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-10 567A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for low back disability. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from March 1969 to March 1971. He served in the Republic of Vietnam from July 1970 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2004 and October 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. On October 2007 VA Form 9s, the veteran requested a hearing before a traveling Veterans Law Judge. In November 2007, he withdrew his request for a Board hearing. The veteran was issued a statement of the case in July 2007 in response to his disagreement with that portion of an October 2006 rating action denying service connection for fibromyalgia. On his August 2007 VA Form 9, the veteran limited his appeal of the October 2006 rating action to the PTSD issue. The Board lastly notes that entitlement to a total disability rating based on individual unemployability due to service- connected disability was denied in a January 2007 rating decision. The veteran did not appeal this determination. The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The veteran's low back disability is not productive of more than moderate limitation of lumbar spine motion, by forward flexion of the thoracolumbar spine limited to 30 degrees or less, by favorable ankylosis of the entire thoracolumbar spine, by incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, by severe lumbosacral strain, or by significant neurological impairment. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for low back disability have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in his possession that pertains to the claim. In the present case, and prior to the establishment of service connection for the veteran's low back disorder, VA provided the veteran with the notice contemplated by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in a November 2003 correspondence, except as to notice of the information and evidence necessary to substantiate the initial rating and the effective date to be assigned a grant of service connection in the event his low back claim was successful. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Once, however, his claim was substantiated through the grant of service connection and he was assigned an initial disability rating and effective date for the grant of service connection in March 2004, VA had no further notice obligations under 38 U.S.C.A. § 5103(a) with respect to the veteran's disagreement with the initial rating assigned. The record reflects that he did receive the notice to which he is entitled under 38 U.S.C.A. §§ 5103A and 7105, including through the issuance of an April 2005 statement of the case. See Dingess/Hartman, 19 Vet. App. at 490-91. In any event, the veteran was provided with the missing notice in a March 2006 communication. The RO readjudicated the claim in a January 2007 supplemental statement of the case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board notes that the United States Court of Appeals for Veterans Claims (Court), in Vazquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. Jan. 30, 2008) clarified VA's notice obligations in increased rating claims. The instant appeal originates, however, from the grant of service connection for the disorder at issue. Consequently, Vazquez-Flores is inapplicable. Based on the procedural history of this case, it is the conclusion of the Board that VA has complied with any duty to notify obligations set forth in 38 U.S.C.A. § 5103(a). With respect to VA's duty to assist the veteran, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, were obtained by the RO or provided by the veteran himself. 38 U.S.C.A. § 5103A. The record also reflects that the veteran was afforded VA examinations in February 2004, January 2005, and February 2006. The veteran has challenged the adequacy of the examinations, in essence complaining that the examiners misinterpreted his account of symptoms. In October 2007, he requested a new VA examination, contending that he "had motion of less than 60%" as well as incapacitating episodes of intervertebral disc syndrome. The Board has reviewed the examination reports, the most recent of which in particular addressed his range of motion and incapacitating episodes, and the veteran's statements concerning his symptoms, and finds that the examination reports are adequate for the purpose of adjudicating the veteran's claim. The Board notes in this regard that the veteran has not actually alleged that his back disorder has worsened in severity since the February 2006 VA examination, or even described such a worsening. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected low back disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2007). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. Further, in Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Factual background As noted in the Introduction, the veteran's period of service ended in March 1971. Service connection for low back disability was granted in March 2004, and assigned an evaluation of 20 percent, effective August 28, 2003. Except for a temporary 100 percent evaluation assigned for the period from October 23, 2003 to November 30, 2003, the 20 percent evaluation has remained in effect. The service medical records document treatment for recurrent low back pain, with full range of motion and no neurologic abnormalities. Private medical records for 2001 to July 2005 show that the veteran reported a history of low back pain with radiation to the right lower extremity since 2002. He denied any associated numbness, and reported fairly good bowel and bladder function. He reported that prolonged standing, walking and leaning forward aggravated his back symptoms. The veteran indicated that he tried changing his job responsibilities from construction to driving, but ultimately quit as his job had no light duty assignments. Physical examination disclosed slightly increased muscle tone, with limitation in range of low back motion. He was able to toe and heel walk without difficulty. His ankle reflexes were trace on the right and 1+ on the left, with no altered sensation or impaired strength. Diagnostic studies showed a disc protrusion at L5-S1 with possible nerve root contact, and mild degenerative changes. Records for August 2003 show that he received epidural steroid injections for severe back pain and muscle spasm. In October 2003, he underwent an L5- S1 laminotomy with excision of a herniated nucleus pulposus, and an S1 nerve root foraminotomy. Following his surgery, he continued to experience back pain and spasm, and was described as having a post-laminectomy syndrome. A January 2004 bone scan of the lower spine was unremarkable; the veteran reported at the time that he no longer had sciatica. The private medical records show that he developed diffuse muscle soreness and generalized fatigue, which was attributed to fibromyalgia. The veteran was prescribed hydrocodone for his diffuse pain, and the medication was described as impairing his performance. The records indicate that the veteran's functional capacity was diminished. In a May 2004 statement, Dr. Funk indicated that the fibromyalgia disabled the veteran from any gainful employment. In an August 2004 statement, Dr. Funk concluded that the veteran was disabled from fibromyalgia and chronic back pain with thoracic degenerative joint disease. The records show that the veteran experienced a myocardial infarction in July 2005. The veteran attended a VA examination in February 2004. He reported that he was a heavy equipment operator for most of his life, but had not worked since his October 2003 surgery. He complained of radiating low back pain, and reported using narcotic pain medications most of the time for relief. Physical examination showed that he had a normal gait after 4 steps. He used no assistive devices. He was able to walk on his heels and toes with some balance problems. He was able to stand on each leg independently. The veteran could forward flex to 40 degrees before the onset of pain and stiffness, and could passively flex to 85 degrees. He could backwards extend to 30 degrees with pain. He could laterally flex to 40 degrees, bilaterally, with pain beginning at 30 degrees. He was able to rotate to 35 degrees without significant difficulty. His ankle reflexes were 1+ on the right, and 2+ on the left. Straight leg raise testing was negative, bilaterally. The examiner concluded that the functional impairment due to pain and stiffness resulted in limitation (including during flare ups) of forward flexion to 45 degrees, extension to 20 degrees, and lateral flexion to 35 degrees. On file are VA treatment records for February 2004 to October 2007. The records document treatment for fibromyalgia, as well as for low back and right leg complaints. The veteran typically denied bowel or bladder problems, but in a May 2005 entry stated that he was experiencing such difficulties; he was not specific as to the problem, and no diagnosis was rendered. In February 2006 reported that he had been experiencing diarrhea for several weeks (after starting a particular medication). His treating clinician suspected the diarrhea was drug-related, and the records show that the diarrhea stopped after he ceased his use of the medication. In April 2007 he denied any bowel or bladder incontinence. The records show that neurological examination was positive for some diminished sensation around the right foot, considered secondary to the back disorder. Achilles reflexes were 1+ and symmetric. Strength was 5/5, but the veteran reported exertional weakness. In 2007, he began using a cane. He denied any lower extremity numbness. A February 2007 entry notes that had spent two days in bed recently following a flare up. In April 2007, he reported that he experienced flare ups of his generalized pain up to 4 times in a week; paralumbar tenderness was evident and his ankle reflexes were absent, but testing was negative for sciatica. The treatment records show that his medications required adjustment for his chronic pain. In July 2004, an administrative law judge with the Social Security Administration (SSA) concluded that the veteran was disabled for SSA purposes based in part on the lower back disorder. The judge concluded that the veteran was capable of performing light work, but not any past relevant work, and therefore had a limited range of light work occupations available to him. Accompanying records from the SSA include statements by the veteran indicating that he had always worked in occupations involving heavy labor, and that he quit working in August 2003 due to physical limitations. He reported that although he had tried to work since that time, he had been unsuccessful. He also contended that his pain medications precluded him from using his commercial drivers license because he could not pass a drug test. The veteran indicated that his back made every position uncomfortable, and that he did no chores and could only walk up to two blocks. The SSA records include the report of a June 2004 functional capacity evaluation, which indicates that the veteran could perform sedentary work, but not the type of physical labor he was accustomed to performing. The report also indicated that he could perform his activities of daily living, but with pain. Physical examination showed that he was more physically functional than he reported, but that decreased strength due to pain was apparent. He was able to crouch and kneel, with some limitations. The veteran attended VA examinations in January 2005. He demonstrated a normal gait without the use of an assistive device. There was no muscle atrophy, and muscle strength was 5/5. Reflexes were 2+ in the lower extremities. Sensory examination was normal. In an August 2005 addendum to the above reports, the VA examiner indicates that, due to the limited lumbar spine motion and acute flare ups occurring twice each month, the veteran was functionally incapable of heavy or light physical work requiring repetitive bending or lifting. The physician clarified that the veteran was capable of sedentary work if allowed to take frequent breaks for position changes. He indicated that the veteran's fibromyalgia would prevent all but part time light physical or sedentary work. In an August 2005 statement, a VA psychiatrist indicated that the veteran's psychiatric disability rendered him incapable of performing productive work. The veteran attended a February 2006 VA examination. He reported that he was capable of walking up to three miles, and did not use an assistive device. He denied any change in his back disorder since the last examination, but reported increased tenderness in the winter months. He reported no improvement in his back pain following the surgery. He stated that the back pain was constant, without flare ups. He indicated that he was independent in his activities of daily living, but sometimes experienced difficulty with putting on his shoes and socks. He reported that he was able to drive. He denied bladder problems, but reported diarrhea and some related fecal incontinence which did not require absorbent pads. He denied any incapacitating episodes requiring bed rest over the past 12 months. Physical examination showed that the veteran walked with a normal gait, and was able to change positions on the examination table without difficulty. His back had normal curvature. He was diffusely tender to palpation in the lower spine, without spasm. He demonstrated forward flexion to 60 degrees (with stiffness preventing further movement), backward extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 30 degrees bilaterally. With repetitive motion, he was able to forward flex to 70 degrees; his other planes of motion remained unchanged, without any weakness or fatigue. There was no muscle atrophy, and he had 5/5 strength. He was able to walk on his heels and toes. His deep tendon reflexes were 2+ and symmetric. Sensation was normal. X-ray studies of the lumbar spine showed mild compression deformity at L1, and mild degenerative change. In an August 2007 statement, an acquaintance of the veteran indicates that he had witnessed the veteran's health deteriorate through the years, to the point where he could no longer work. In several statements on file, the veteran contends that since the October 2003 surgery, he has developed sciatica, as well as bowel and bladder problems. As to the latter, he explains that his pain medications constipate him, but that his back disorder causes loose bowels. He also indicates that he experiences muscle spasms, and has delegated many of his household chores in light of his impaired functioning. The veteran contends that the narcotic pain medications he requires preclude him from any job involving clean drug tests as a condition of employment. He maintains that he does experience incapacitating episodes requiring bed rest, even though not prescribed by a physician, explaining that he spends about 6 hours a day in bed. He challenged the February 2006 examiner's account that he could walk up to 3 miles, explaining that he could only walk up to two blocks at a time. He also explained that he was in pain every time he changed position on the examination table, and stated that the favorable level of low back motion exhibited at the examination was due to a "good day." The veteran contends that he finds it difficult to perform even simple tasks, and that his back disorder affects his activities of daily living by reducing the activities in which he participates. In October 2007, he contended that he "had motion of less than 60%" as well as incapacitating episodes of intervertebral disc syndrome of at least 4 weeks but less than 6 weeks during the past 12 months; he explained that his physician refused to prescribe bed rest for the episodes because it was against his beliefs. Analysis The RO evaluated the veteran's low back disability as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Effective September 26, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is rated either under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides for a 20 percent evaluation where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 20 percent evaluation where there are incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. When rating under the General Rating Formula for Diseases and Injuries of the Spine, 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, Diagnostic Code 5243 and Notes (1) and (6). Prior to September 26, 2003, intervertebral disc syndrome was rated under Diagnostic Code 5293. Pursuant to that code, a 20 percent evaluation was warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation required incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Alternatively, IVDS was rated by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293 and Note (1) (2003). Prior to September 26, 2003, alternative diagnostic codes included 38 C.F.R. § 4.71a, Diagnostic Codes 5292 and 5295. Pursuant to Diagnostic Code 5292, a 10 percent evaluation was warranted for slight limitation of lumbar spine motion, a 20 percent rating was warranted for moderate limitation of lumbar spine motion, and a 40 percent evaluation was warranted for severe limitation of lumbar spine motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Pursuant to Diagnostic Code 5295, a 10 percent evaluation was warranted for lumbosacral strain with characteristic pain on motion. A 20 percent rating was warranted for lumbosacral strain with muscle spasm on extreme forward bending with unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation required severe lumbosacral strain, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). With a fractured vertebrae which otherwise does not meet the criteria for a 60 or 100 percent rating, residuals are rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (2003). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-2003. Based on the medical evidence on file, Board finds that an evaluation in excess of 20 percent for the veteran's low back disorder is not warranted under any appropriate diagnostic code. Turning first to the rating criteria in effect prior to September 26, 2003, a 40 percent evaluation under Diagnostic Code 5293 (IVDS) requires incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Although the veteran contends that he does experience such episodes for the required duration, the medical records on file do not show or even suggest the presence of incapacitating episodes of any appreciable length. More importantly, the records do not show that he was prescribed bed rest by his treating physicians for any episodes of IVDS, with treatment by a physician. The records instead largely show treatment for his fibromyalgia, with occasional references to flare ups of the lower back disorder. The Board points out that the veteran himself admits that although he spends about 6 hours each day resting in bed, none of this bed rest is prescribed. To the contrary, he reports that his physician objects to prescribing bed rest. Given the absence of evidence showing that the veteran was prescribed bed rest for incapacitating episodes of his IVDS totaling at least 4 weeks in duration during any year, the Board finds that a 40 percent evaluation under Diagnostic Code 5293 is not warranted. As to whether a higher rating is warranted by combining the separate evaluations of the orthopedic and neurologic manifestations of IVDS, the Board finds that the veteran does not have any significant neurological component to his low back disorder. Although diagnostic studies prior to October 2003 documented possible nerve root contact of his disc protrusion, he underwent surgical correction of the disc protrusion. Since that time, no diagnostic studies have suggested the presence of any nerve root impingement. Although he reports muscle spasm and sciatica, no muscle spasm was evident on VA examination, and straight leg raise testing was consistently negative. The April 2007 treatment report entry specifically commented on the absence of sciatica. Moreover, although the veteran has occasionally exhibited diminished or absent ankle reflexes, he has not demonstrated any clinically corroborated impairment associated with the diminished reflexes. Nor are his reflexes consistently diminished, as was evident at the February 2006 VA examination. Further, while the treatment records show one occasion during which he exhibited diminished sensation in the right foot due to his low back disorder, at other times (including on VA examination) his sensation has been described as intact, and in any event no neuropathy or other neurological disability has been diagnosed in association with the back disorder. The veteran contends that he has bowel and bladder dysfunction secondary to his low back disorder. The treatment reports show that when he reported such dysfunction, he was either non-specific as to the nature of the impairment, or described incontinence which began with the use of a certain medication and which stopped after he ceased using the medication. Although the February 2006 examiner recorded the veteran's complaint of bowel dysfunction, the examination was conducted during that limited time frame when his medication was considered the likely source of the incontinence. In any event, neither his examining nor his treating physicians have diagnosed the veteran with an actual bowel or bladder disorder, or suggested that any bowel or bladder difficulties were neurological in nature. In short, there is no evidence of any significant neurological impairment associated with the low back disorder. Consequently, there is no basis on which to separately evaluate any neurologic manifestations of the lower back disorder for any period involved in this appeal. See generally, 38 C.F.R. § 4.124, Diagnostic Code 8520 (2007). A rating higher than 20 percent under Diagnostic Code 5293 is not warranted. As noted previously, severe limitation of lumbar spine motion warrants a 40 percent evaluation. The record reflects, however, that the veteran has consistently demonstrated nearly full range of lumbar spine motion on VA examination, except for flexion. Even when his complaints of pain and stiffness are considered, he still demonstrates a substantial range of lumbar spine motion, with his greatest reduction of motion in forward flexion. He can flex to at least 40 degrees, backward extend to at least 20 degrees, laterally flex to at least 20 degrees bilaterally, and rotate to at least 30 degrees bilaterally. According to 38 C.F.R. § 4.71a, Note (2) following the General Rating Formula for Diseases and Injuries of the Spine, normal forward flexion is to 90 degrees, normal backward extension is to 30 degrees, normal lateral flexion is to 30 degrees, and normal rotation is to 30 degrees. The Board acknowledges the veteran's contention that his motion is also affected by weakness with exertion. Nevertheless, he consistently has demonstrated full strength on VA examination, without any atrophy. Moreover, his gait is normal, and although he recently began using a cane, he has not evidenced any significant coordination problems, and can heel and toe walk and balance on each leg independently. In the Board's opinion, even with consideration of the functional impairment caused by pain and stiffness, the veteran's lower back disorder is not even remotely characterizable as productive of more than moderate limitation of lumbar motion. See Deluca v. Brown, 8 Vet. App. 202 (1995). A rating in excess of 20 percent under Diagnostic Code 5292 is therefore not warranted. The evidence does not demonstrate any listing of the whole spine to opposite side, or positive Goldthwaite's sign. Nor has the veteran evidenced marked limitation of forward bending in standing position, given that he is able to flex to at least 40 degrees before experiencing pain and stiffness, and up to 85 degrees passively. Nor has he demonstrated significant osteo-arthritic changes, narrowing or irregularity of joint space, or abnormal mobility on forced motion. A 40 percent evaluation under Diagnostic Code 5295 therefore is not warranted. The Board notes that while the veteran does have X-ray evidence of a mild compression deformity at L1, he has never evidenced, in service or thereafter, a vertebral fracture, and in any event, the compression deformity has not resulted in a demonstrable deformity. The February 2006 examiner, for example, commented on the normal alignment of the spine, and did not report noticing any deformity. A separate 10 percent evaluation under Diagnostic Code 5285 is therefore not warranted. Turning to the criteria in effect as of September 26, 2003, the Board notes that the criteria in Diagnostic Code 5243 mirrors that of former Diagnostic Code 5293. For the reasons expressed in the discussion of Diagnostic Code 5293, a 40 percent evaluation under Diagnostic Code 5243 is not warranted on the basis of incapacitating episodes. With respect to whether a higher rating is warranted under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation requires forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence clearly shows that his thoracolumbar spine retains motion in all excursions, and clearly is not ankylosed. Moreover, even when functional loss due to pain and stiffness is considered, he is consistently able to forward flex to well beyond 30 degrees. A 40 percent evaluation therefore is not warranted. The Board notes that the General Rating Formula for Diseases and Injuries of the Spine requires the separate evaluation of associated objective neurologic abnormalities. As already discussed, the Board finds that the veteran does not manifest any associated objective neurologic abnormalities. His claimed bowel and bladder complaints either resolved with a change in medication, or otherwise have not been clinically corroborated or associated with a diagnosable disease. His radiating pain has not been described as a neurologic manifestation, and his reflexes have been diminished on only an inconsistent basis. The abnormal sensation noted on one occasion in the treatment records has not been corroborated by subsequent examination, and the veteran has in any event not been found to have any type of neuropathy or other significant neurologic abnormality. In short, there simply is no objective neurologic abnormality to separately evaluate. Accordingly, the Board concludes that a rating in excess of 20 percent for low back disability is not warranted. 38 C.F.R. § 4.3. The Board has considered whether the case should be referred for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2007). The veteran has remained unemployed since his October 2003 surgery, and is receiving disability benefits from the SSA at least in part due to the lower back disorder. Significantly, however, he has several nonservice- connected disorders which clearly impact on his employment, most notably his fibromyalgia and psychiatric disorder. Dr. Funk in May 2004 concluded that the fibromyalgia alone precluded employment. In his August 2004 statement, Dr. Funk referenced the lower back disorder, but only indicated that it had "disabled" the veteran; he did not conclude that the lower back disorder itself could be responsible for the veteran's employment difficulties. The June 2004 SSA functional capacity assessment concluded that the veteran was capable of working in a sedentary capacity, as did the January 2005 VA examiner. The Board recognizes that the veteran's low back disorder precludes the type of heavy labor jobs he traditionally has sought. His lower back disorder (or more accurately, the medications used therefor) also arguably precludes any employment requiring the use of his commercial drivers license. Nevertheless, given that physicians have concluded that his back would not substantially interfere with sedentary employment, and as his nonservice-connected fibromyalgia and psychiatric disorders are felt by his physicians to have at least an equal, if not greater impact on his current employment status, the Board finds that the veteran's low back disorder is not productive of marked interference with employment as to require referral for consideration of an extraschedular evaluation. The Board points out that the assignment of a 20 percent evaluation in itself is recognition that the impairment makes it difficult to obtain and keep employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board also points out that while the SSA has awarded the veteran disability benefits based on its own determinations concerning his work capacity, the Board is not bound by that determination, or by the law and regulations which govern SSA's determination. The Board has considered and given due weight to the SSA's determination and the evidence on which it was based. The Board notes that while the veteran reports that he can no longer perform his household chores, he nevertheless is able to perform his activities of daily living, as noted not only in the treatment records on file, but during his VA examinations. In addition, there is no evidence that his low back disability has necessitated frequent periods of hospitalization or that the manifestations of the disability are unusual or exceptional. Therefore, the Board finds that the criteria for submission for an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996) ; Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board lastly notes that the RO, in granting service connection for low back disability, assigned an effective date for the grant of August 28, 2003. The Board has reviewed the evidence on file and concludes that the underlying level of severity for the veteran's low back disorder has remained at the 20 percent level, but not higher, since August 28, 2003. As discussed previously, he already has been compensated for the period of recovery following his October 2003 surgery. For the reasons enumerated above, and because there is no indication of greater disability than that described above during the period beginning August 28, 2003, a higher rating is not warranted for any time since the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). ORDER Entitlement to an initial rating in excess of 20 percent for low back disability is denied. (CONTINUED ON NEXT PAGE) REMAND The veteran contends that he has PTSD from certain service experiences. The medical records on file show that he has been diagnosed as having PTSD. The record shows that the RO requested that the U.S. Army and Joint Services Records Research Center (JSRRC) attempt to verify the veteran's claimed stressors. At the time, the veteran had provided, in August 2004, the names of two individuals whose death or wounding he claimed to have witnessed, namely Mssrs. [redacted] and [redacted]. He provided a relatively detailed narrative of his experiences with those individuals. In June and August 2006, the JSRRC responded with information showing that both Mr. [redacted] and Mr. [redacted] were killed before the veteran entered Vietnam. As to the other claimed stressors, the JSRRC noted that most were anecdotal, and therefore unverifiable. The JSRRC did note that the veteran's base experienced a rocket attack several days before his departure from service; the veteran has not at any point claimed that incident as one of his stressors. In August 2006 the JSRRC indicated that it could not verify the casualty status of two other individuals identified by the veteran as having been wounded. On being informed of the JSRRC's response, the veteran provided a somewhat modified explanation of his stressors, and indicated that it was not Mr. [redacted], but rather a [redacted] [redacted] with whom he was traveling in a truck when both were wounded by a sniper. He explained that he was unaware that his representative had included Mr. [redacted] name in his August 2004 stressor statement because he was recovering from his July 2005 heart attack at the time the statement was submitted. Given the evolving details provided as to the claimed stressors, the RO declined to contact the JSRRC to verify the wounding of [redacted]. To an extent, the Board shares the RO's concern over the changing nature of the veteran's claimed stressors. Nevertheless, in light of his explanation that he did not realize his representative was providing the incorrect information, and although the veteran maintains that none of his stressors are verifiable because each was either covered up or not reported, the Board is of the opinion that one additional attempt to verify certain of his stressors should be undertaken. For example, the wounding of Mr. [redacted] by a bullet is the type of incident which should be verifiable. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should attempt to obtain additional information from the veteran concerning the specific circumstances of each alleged inservice stressor, to include the dates (to within 60 days), locations, units involved, and, if involving combat, the names of casualties. Further, identifying information concerning any other involved individuals, including their names, ranks, and units of assignment should be requested from the veteran. With any additional information provided by the veteran, and with the evidence already of record, the RO must prepare a summary of those alleged service stressors which differ in nature and/or detail from any stressor previously submitted to the JSRRC in this case. This summary must be prepared regardless whether the veteran provides an additional statement, as requested above. This summary and a copy of the veteran's DD 214 and other service personnel records should be sent to the U.S. Army and Joint Services Records Research Center. The JSRRC should be provided with a copy of any information obtained above, and should be asked to provide any additional information that might corroborate the veteran's alleged stressors, particularly in regard to the incident involving [redacted]. The JSRRC should also be requested to furnish the unit history and operational reports for each unit the veteran was assigned to from July 1970 to March 1971 for the period during which he served with such unit. 2. After completing the above action, and if and only if the RO determines that one or more of the veteran's stressors has been verified, the veteran should be afforded a VA psychiatric examination by a physician with appropriate expertise to determine the nature and etiology of any diagnosed psychiatric disorder. All indicated studies, tests and evaluations deemed necessary should be performed. The RO must provide the examiner with the summary of any stressors described above. If PTSD is diagnosed, the examiner should identify the independently verifiable inservice stressor(s) that supports the diagnosis. If PTSD is not diagnosed, the examiner should explain why PTSD was not diagnosed. With respect to each and every diagnosed psychiatric disorder, the examiner must opine whether it is at least as likely as not that such disorder(s) is(are) etiologically related to the veteran's period of service. The claims folders must be made available to the examiner for proper review of the medical history. 3. The RO should then prepare a new rating decision and readjudicate the remaining issue on appeal. If the benefit sought on appeal is not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs