Citation Nr: 0811755 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-00 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an increased evaluation for lumbosacral strain with mechanical low back pain and degenerative changes, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran had active military service from September 1977 to December 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Department of Veterans Affairs (VA) St. Paul, Minnesota Regional Office (RO). In that decision the RO granted an increased disability rating for the service- connected low back disorder from 10 percent to 20 percent, effective from the date of that claim. The veteran appealed from that decision as to the assigned disability rating. In May 2004 the veteran testified before the undersigned at a hearing conducted at the RO. A transcript of that hearing is of record. In February 2006, the Board remanded the veteran's claim to the RO for further development. FINDING OF FACT The objective and probative medical evidence of record demonstrates that the veteran's service-connected lumbosacral strain with mechanical low back pain and degenerative changes is manifested by subjective complaints of back pain, with clinical findings of muscle spasm, and restricted lumbar spine motion (forward flexion to 60 degrees, backward extension to 15 degrees, left and right rotation and lateral bending all to 20 degrees in September 2007) but no clinical evidence of radiculopathy and no evidence of severe impairment of limitation of motion or severe intervertebral disc syndrome with recurring attacks, with intermittent relief; nor does it involve ankylosis or residuals of fracture; and it does not result in incapacitating episodes of at least four weeks during the past 12 months. CONCLUSION OF LAW The schedular criteria for a disability rating in excess of 20 percent for lumbosacral strain with mechanical low back pain and degenerative changes, have not been met. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) (effective prior to September 23, 2002); 38 C.F.R. §§ 3.102, 3.159, Part 4, Diagnostic Codes 5003, 5292, 5293, 5295 (effective prior to September 26, 2003), and Diagnostic Codes 5003, 5237, 5243 (2007) (effective September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Id. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The VCAA duty to notify was satisfied by way of letters sent to the veteran in December 2002, March and November 2006, and January 2007. These notice letters fully addressed all four notice elements. The information contained in these letters informed the veteran of what evidence was required to substantiate a claim for an increased rating. The veteran was also notified of his and VA's respective duties for obtaining evidence, and he was asked to submit evidence and/or information in his possession to the AOJ. Although some of the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but, after appropriate notice was provided, the AOJ also readjudicated the case and issued a statement of the case (SOC) in December 2003, and a supplemental statement of the case (SSOC) in November 2007. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). Also, in letters sent to the RO, the veteran's representative has shown knowledge of the requirements which appropriate VCAA notice is designed to provide. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held that the Board must first determine the adequacy of 38 U.S.C.A. § 5103(a) notice when adjudicating claims for increased ratings. If notice is deemed inadequate, then the Board must determine whether the purpose of 38 U.S.C.A. § 5103(a) notice has been frustrated. If compliant VCAA notice was not provided, the Board must proceed with a prejudicial error analysis to determine whether any notice errors affected the "essential fairness of the adjudication." Sanders v. Nicholson, 487 F.3d at 889. If so, the case must be remanded for corrective action. In this case, the Board is aware that the December 2002, March and November 2006, and January 2007 VCAA letters do not contain the level of specificity set forth in Vazquez-Flores. However, the Board does not find that any such procedural defect constitutes prejudicial error in this case because of the evidence of actual knowledge on the part of the veteran and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claims. See Sanders v. Nicholson, 487 F. 3d at 881. Here, VA correspondence, in total, provides notice that the claimant must provide or request the Secretary to obtain, medical or lay evidence demonstrating a worsening of the disability. It also informs the veteran that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. Additionally, the letters provide examples of the types of medical and lay evidence that the claimant may submit. Further, the Board is aware that the claimant is rated under Diagnostic Codes that contain criteria necessary for entitlement to a higher disability rating, which would be satisfied by the claimant demonstrating a noticeable worsening. Meeting these criteria, the notice provided in this case does comply with Vazquez-Flores. Therefore, there is no need to determine whether the veteran's claim has been prejudiced by any lack of appropriate notice. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F.3d 1311 (Fed Cir. 2007), which held that the VCAA notice requirements 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. In the March 2006 letter and November 2007 SSOC, the RO provided the veteran with notice consistent with the Court's holding in Dingess. Furthermore, any question of appropriate notice pursuant to Dingess is rendered moot by the Board's denial of the veteran's claim, as set forth below. The statutory notice required by the VCAA is only one part of the system of notice required and provided in the VA claim adjudication process. See Wilson v. Mansfield, No. 506 F.3d 1055 (Fed. Cir. 2007). Under Wilson (citing Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), 38 U.S.C.A. § 5103(a) requires only a generic notice after the initial claim for benefits has been filed and before the initial decision. It does not apply throughout the claim adjudication process as to notice provided after the initial decision, because thereafter, other forms of notice-such as contained in the rating decision, statement of the case, and supplemental statement of the case-provide the claimant with notice of law applicable to the specific claim on appeal. Id. The RO has provided the veteran such notice to his specific claim throughout the appeal in the statement of the case and supplemental statement of the case. In addition to providing proper notice, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record service medical records, reports of three VA examinations, and VA medical records of treatment. There is no indication that any other treatment records exist that should be requested, or that any pertinent evidence has not been received. VA examinations were provided in connection with the claim in April 2003 and in April and September 2007. The veteran was provided an opportunity to testify at a hearing before the undersigned Acting Veterans Law Judge in May 2004. For the forgoing reasons, the Board finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or the content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background and Legal Analysis Service connection for back pain syndrome of the lumbar spine was granted by the RO in an October 1978 rating decision that awarded a 10 percent rating to the veteran's service connection back disability. In August 2002, the RO received the veteran's current claim for an increased rating for his service-connected back disability. As noted above, the February 2003 rating on appeal granted a 20 percent evaluation under Diagnostic Code 5295. The medical evidence on file material to the veteran's claim includes VA medical records, dated from 2003 to 2007, including reports of VA examinations in January 2003, and April and September 2007. The report of a January 2003 VA examination of the spine shows that the veteran complained of lumbosacral pain about half the time, for which he ranked the intensity as being a +8/10 (+8 on a pain scale of 10). His back also hurt when he coughed or sneezed. He reported that his low back range of motion was diminished by 30 percent of normal range; and that he had tingling into the right leg. He did not use a cane, brace, wheel chair, walker, crutches, or Tens unit. He reported that fatigue was not a problem. The veteran said that he worked as a self-employed plumber; that he had not been hospitalized or had his job threatened due to his back complaints; and that he only took Motrin and Tylenol for his back. On examination, the veteran's gait was described as normal. He was able to stand on his heels and toes normally and could squat fully. The veteran was able to flex at the waist from zero to 80 degrees with some pain. The veteran was able to extend at the waist from zero to 45 degrees with some pain. At the waist he was able to bend to the left and right, and to twist to the left and right, from zero to 20 degrees for all motions with no discomfort. There was pain to palpation of the lumbosacral spine area. There was 4+/4 muscle spasm in the paraspinous lumbosacral muscle areas. There was no scoliosis or pelvic tilt; and the lordotic curve was flattened. Straight leg raising was positive bilaterally at 80 degrees. Patrick's sign was negative bilaterally. The veteran was able to flex his hips from zero to 130 degrees actively, and from 130 to 140 degrees passively, with no discomfort. After fatiguing the back and legs, he could still flex his hips from zero to 135 degrees. Patella and Achilles tendon reflexes were +1/4 bilaterally. Babinski sign was negative bilaterally. Sensation appeared to be normal bilaterally in the lower extremities. The strength in muscle bundles 10 through 15 using the MRC scale was 4+/5. X-ray examination of the lumbosacral spine showed mild hypertrophic degenerative changes with narrowing of the L5-S1 disk space. The pertinent diagnosis was traumatic injury to the lumbosacral spine with chronic strain and mechanical low back pain, with mild degenerative changes and narrowing of disk space L5-S1 and residual. Medical treatment records include VA clinical records showing that the veteran was treated on two occasions for acute exacerbations of his chronic low back pain-in May 2004 and February 2007. At neither time did a physician prescribe any required bed rest. At both times, the veteran drove himself to the medical facility, and was treated with pain and/or muscle relaxant medication on an outpatient basis. During his May 2004 Board hearing, the veteran testified as to the symptoms and treatment associated with his low back disability and its effect on his work and daily activities. At least once a week he experienced back pain that he rated as an 8 or 9 on a scale of 1 to 10 (see hearing transcript, page 3). He had difficulty with prolonged standing and sitting and playing with his children (Id. at 4). His back became easily fatigued (Id.). He said his back impacted his ability to work in that he used to work for a printing company but was unable to life heavy items so he was now self-employed (Id.). With back pain he said he was out for two or three weeks, and used heat while lying down (Id. at 5). He was able to work approximately six to eight months in a year and nursed his back during the remaining time (Id.). During an April 2007 VA examination, the examiner noted that review of the 2003 VA examination showed that, in terms of factors to be considered under DeLuca v. Brown, 8 Vet. App. 202 (1995), the veteran's low back disability manifested pain, but fatigue was not a problem on that examination. In the examination report, the VA examiner discussed the veteran's past medical history during and after service, and the veteran's past complaints. The veteran said that he treated his back symptoms with Ibuprofen as needed, and had no past history of surgeries or fractures. Further, the veteran currently complained of three to four flare-ups in the last year. He reported that the longest one lasted a week and a half, and he was seen in the emergency room. During a flare-up, his pain would be 9/10, and there was no pain when there was no flare. But he reported that he did get some dull pain in the low back when standing and doing dishes. He reported that if he treated a flare-up with heat and muscle relaxants before it became too bad, he was able to limit the episode to two or three days. The veteran reported that he treated his back with ice and heat; he enjoyed bike riding; and he did not have physical therapy, but did do a home program. He had no history of chiropractic care or injections. He said he was self-employed as a drain cleaner that involved lifting heavy cables and he worked three or four hours a day to avoid over-doing it and did the administrative tasks. Additionally, the veteran reported that he had no bowel or bladder impairment, or erectile dysfunction; and he did not use a cane, brace, or crutch. He had radiation of pain that began four to six years earlier, and did not occur all the time. If he had radiation, it would be to the right lower extremity on top of the thigh, and not below the knee. The veteran reported that he was independent in his activities of daily living, and that he was able to delegate his physical work as a plumber when having pain. The April 2007 VA examination report concluded with a plan for the veteran to undergo an electromyograph (EMG) examination of the bilateral lower extremities to evaluate reports of radiating pain and numbness. The April 2007 examination report contains no current examination findings or diagnosis. The report of a June 2007 VA EMG report shows that the veteran reported having numbness and tingling sensation on his right leg for the last four to five years. He reported that these symptoms were associated with low back pain, with symptoms radiating from his back down to involve his entire right leg. He reported that symptoms were intermittent and worse with activity and lifting; and alleviated by heating the lower back muscles and treatment with Ibuprofen and muscle relaxers. He reported complaints of mild weakness of the right leg. The symptoms had been worsening in the last year. On examination of the lower extremities, the examiner found no atrophy. The examiner was unable to fully assess muscle strength due to pain, but the assessment was that strength was at least 4+/5, bilaterally. Examination of the lower extremities showed that sensation was intact throughout; and deep tendon reflexes were 2+ for the knees and ankle reflexes, bilaterally. Straight leg raising was not tested due to pain. The summary results of motor and sensory nerve conduction studies were that all pertinent nerve studies were normal. After all studies were conducted, the examination report contains an impression of (1) a normal study and (2) that there is no evidence of radiculopathy or peripheral neuropathy to account for symptoms. The report of a September 2007 VA examination of the low back shows that the veteran complained of low back pain with flares every other month. The pain was sharp and located in the low back and right side primarily, and radiated to the right side and right lower extremity, involving the top of the thigh not below the knee. He denied having any bowel or bladder impairment. The symptoms were aggravated by bending forward and alleviated by medication and heat. The veteran said that he was able to avoid occupational work during flares. He reported that he did not use a cane, brace, or crutch. He had not had any surgery, but had chiropractic care in the past that alleviated pain for four to five days. He reported that flares varied and were related to activity. He was independent in activities of daily living. On examination, the veteran's gait was antalgic. Range of motion testing revealed forward flexion was to 60 degrees; backward extension was to 15 degrees; rotation was to 20 degrees on the left and right; and lateral bending was to 20 degrees on the left and right. The veteran complained of pain with the flexion and with bending to the right. He performed the motions three times, with no fatigability shown with repetition. The veteran reported that touching the low back felt very painful. The lumbar curve was flat. The examiner noted spasm on the low back paraspinal muscle, and lower thoracic and lumbar area. Strength was 4+/5 through out both lower extremities; with testing limited by pain. Sensation was intact to light touch, vibration and position of both lower extremities. Reflexes were 1+/2 for Achilles of both legs; and 2/4 for both patellas. Babinski testing was unequivocal. The examiner noted that X-rays taken in April 2007 showed slight progression of degenerative findings mainly at L4-5 and L5-S1; and showed no fracture. The report contains a clinical impression lumbar strain, slight progression of degenerative disc disease. The VA examiner estimated that, with flare-ups, there would be an additional 20 degrees of loss of motion secondary to pain. The present appeal involves the veteran's claim that the severity of his service-connected back disability warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibility constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. Many factors are to be considered in evaluating disabilities of the musculoskeletal system and these include pain, weakness, limitation of motion, and atrophy. Painful motion with the joint or periarticular pathology, which produces disability, warrants the minimum compensation. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59 (2007); DeLuca v. Brown, 8 Vet. App. at 202. The Court has held that section 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The veteran's statements describing the symptoms of his service-connected disorder are deemed credible evidence. However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus his statements regarding causation are not competent. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). His statements must be considered with the objective clinical evidence of record and in conjunction with the pertinent rating criteria. The words "slight", "moderate", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2007). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (2007); 38 C.F.R. §§ 4.2, 4.6. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2007); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2007); Fanning v. Brown, 4 Vet. App. 225 (1993). The RO has evaluated the service-connected low back disability under the rating criteria for evaluating the musculoskeletal system found at 38 C.F.R. § 4.71a (2007). 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 (2007). The veteran submitted his claim for an increased rating in August 2002. During the pendency of this claim, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the criteria for rating disabilities of the spine. Effective September 23, 2002, VA revised the criteria for rating intervertebral disc syndrome. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for rating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). At that time, VA also reiterated the changes to Diagnostic Code 5293 (now classified as Diagnostic Code 5243) for intervertebral disc syndrome. After reviewing the new criteria and regulations found at 68 Fed. Reg. 51,454, the Board finds that the new rating criteria are less favorable than the old regulations at 38 C.F.R. § 4.71a (2002) to the veteran's claim. If during the course of an appeal there is a change in the criteria for rating a disability, the Board is required to consider the claim in light of both the former and revised schedular criteria to determine whether a higher initial disability rating is warranted for the veteran's service- connected low back disability. The General Counsel for VA has determined that the amended rating criteria, if favorable to the claim, can be applied only for the periods since the effective date of the regulatory change. However, the veteran does get the benefit of having both the former and revised regulations considered for the period after the change was made. See VAOPGCPREC 3-2000. That guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. See 38 U.S.C.A. § 5110(g) (West 2002). Accordingly, the Board will review the disability rating under the old and new criteria. The veteran's service- connected lumbosacral strain with mechanical low back pain and degenerative changes is presently evaluated as 20 percent disabling. In the February 2003 rating decision, the RO initially evaluated the disability under the old rating criteria for evaluating lumbosacral strain, found at 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). Subsequently the RO also considered the disability under pertinent revised versions of diagnostic criteria. The veteran was afforded an opportunity to comment on the RO's action. Accordingly, there is no prejudice to the veteran in our proceeding under Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Here the Board has considered the claim under all pertinent diagnostic criteria in effect during the pendency of the claim. Under the old regulations, limitation of motion in the lumbar spine warranted a 40 percent rating when severe, and a 20 percent rating when moderate, under 38 C.F.R. § 4.71a, Diagnostic Code 5292, as effective prior to September 26, 2003. Under Diagnostic Code 5293, in effect prior to September 23, 2002, intervertebral disk syndrome warranted a 60 percent rating for pronounced, persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. A 40 percent rating was assigned for severe, recurring attacks with intermittent relief. A 20 percent rating was assigned for moderate, recurring attacks. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002), as effective prior to September 23, 2002. Under Diagnostic Code 5295, in effect prior to September 26, 2003, lumbosacral strain warranted a 40 percent evaluation for lumbosacral strain when it was manifested by severe symptomatology that included listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of motion on forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation if lumbosacral strain was warranted for evidence of muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in the standing position. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003), effective prior to September 26, 2003. Under the revised criteria, effective from September 23, 2002, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past 12 months or 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, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5393, as amended by 67 Fed. Reg. 54345-54349 (Aug. 22, 2002). If evaluating based on incapacitating episodes, a 20 percent evaluation is assigned with 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 is assigned with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. See also 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2007) (same effect). Note (1): For purposes of evaluations under 5293, 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. "Chronic orthopedic and neurologic manifestations" mean orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. See 68 Fed. Reg. 51454- 51458 (Aug. 27, 2003), effective September 26, 2003, [Diagnostic Code 5393 redesignated as 5243 and codified at 38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episode, Note (1) (2007) (same effect)]. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic code or codes. Note (3): If intervertebral disc syndrome is presented 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. Under the revised criteria, effective from September 26, 2003, disabilities of the spine will be evaluated 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 § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2007). Under the General Rating Formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees, or 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 rating is warranted if the medical evidence shows unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. These ratings are warranted if the above-mentioned manifestations are present, 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. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243 (2007). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 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. See General Rating Formula, Note (2). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Normal range of motion of the thoracolumbar spine includes flexion from zero to 90 degrees; and extension, bilateral lateral flexion, and bilateral rotation, all from zero to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2007). The veteran's service-connected lumbosacral strain with mechanical low back pain and degenerative changes is rated as 20 percent disabling under Diagnostic Code 5295, for lumbosacral strain. The Board finds that the preponderance of the probative and competent medical evidence of record is against the claim for a rating in excess of the currently assigned 20 percent. Under the former Diagnostic Code 5295, in effect prior to September 26, 2003, as reflected in the VA examinations discussed above, the veteran has not exhibited symptoms productive of severe lumbosacral strain. There is no evidence of 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. None of the reports of the VA examinations of the spine, or other medical records, contain evidence of such severe pathology so as to warrant a 40 percent disability rating. With respect to limitation of motion of the lumbar spine, the veteran's service-connected low back disability is not productive of more than moderate limitation of the spine under Diagnostic Code 5292. During the January 2003 VA examination report, flexion was to 80 degrees; extension was to 45 degrees; lateral flexion was to 20 degrees, on the left and right; and rotation was to 20 degrees, on the left and right. During the September 2007 VA examination report, flexion was to 60 degrees; extension was to 15 degrees; lateral flexion was to 20 degrees, on the left and right; and rotation was to 20 degrees, on the left and right. None of the limitations in range of motion are more than 50 percent of normal, and predominantly, they are not limited by more than one-third of normal. The Board finds that these limitations of range of motion approximate no more than moderate limitation of motion of the lumbar spine; and definitely do not approximate severe limitation. Under the former Diagnostic Code 5293, in effect prior to September 23, 2002, the veteran has not exhibited severe symptoms of intervertebral disc syndrome (such as characteristic pain and demonstrable muscle spasm), with recurring attacks, with intermittent relief for any period. Although examiners have noted findings of muscle spasm in the back, there is no evidence of recurring attacks with only intermittent relief. In fact, while there is evidence of spasm of the back itself, the medical evidence of record here does not contain a diagnosis of intervertebral disc syndrome. The June 2007 VA EMG examination was conducted for the purpose of evaluating the veteran's reports of radiating pain and numbness, to determine whether such complaints were linked to the service- connected low back disability. The examiner concluded with an impression of normal study; and that there was no evidence of radiculopathy as an explanation of the veteran's complaints of lower extremity neurologically related complaints. None of the remainder of medical records contain a diagnosis of intervertebral disc syndrome. Notably, during VA examinations in April 2007 and September 2007, the veteran reported that the radiation of symptoms involved the top of the right thigh. This area, the top of the right thigh, is not a distribution identified with sciatica as contemplated under Diagnostic Code 5293. See Dorland's Illustrated Medical Dictionary 1666 (30th ed. 2003). The amended criteria provide for rating intervertebral disc disease (now reclassified as Diagnostic Code 5243) according to the number of incapacitating episodes the veteran experiences in the course of a year. There is no medical evidence showing an incapacitating episode-the veteran has not been prescribed bed rest by a physician. Therefore an increase under these criteria is not warranted. Further, on review of the evidence, the Board finds that a higher rating cannot be granted under other pertinent diagnostic criteria of either old or new versions. The claims file does not contain a diagnosis of ankylosis of the lumbar spine. The service-connected condition is not the result of fractured vertebra. Consequently, a rating higher is not warranted for the veteran's service-connected low back disability under either Diagnostic Codes 5289 or 5285. 38 C.F.R. § 4.71a (2003). The Board has considered the veteran's low back disability under the current criteria, effective September 26, 2003. An evaluation in excess of 20 percent, however, is not appropriate since the evidence does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5235 to 5243 (2007). While the record shows that the veteran's range of lumbar spine motion was restricted and that he experienced additional restriction from pain, he clearly retained a level of thoracolumbar motion above 30 degrees even when any functional loss due to pain is considered. Thus, an evaluation in excess of 20 percent under the new criteria is not warranted. The veteran cannot be rated separately under Diagnostic Code 5293 (or 5243 (new version number)) and under the Diagnostic Code for rating limitation of motion of the lumbar spine ((5292 (old version) and 5242 (new version)). These two sets of codes each contemplate limitation of motion and therefore a separate rating under both is not allowed. See 38 C.F.R. §§ 4.14, 4.71, Diagnostic Codes 5290, 5292, 5293; VAOPGCPREC 36- 97; see also Esteban v. Brown, supra. The medical evidence does not show that veteran's service- connected low back disability causes any associated objective neurologic abnormalities, including, but not limited to, bowel, bladder, or erectile impairment, so as to warrant a separate rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1) (2007). The Board finds that the effects of pain reasonably shown to be due to the veteran's low back disability are contemplated in the currently assigned 20 percent rating. There is no indication that pain, due to disability of the lumbar spine, causes functional loss greater than that contemplated by the 20 percent evaluation now assigned. 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown. Based on the foregoing, the Board finds that the preponderance of the objective medical evidence of record is against the veteran's claim for an increase in evaluation for his service-connected lumbosacral strain with mechanical low back pain and degenerative changes. Given the nature of the veteran's service-connected disability as described above, the Board finds that there is no basis under any of the diagnostic codes discussed above for awarding an evaluation higher than the 20 percent rating already in effect for the lumbosacral strain with mechanical low back pain and degenerative changes. Should the veteran's disability picture change in the future, he may be assigned a higher evaluation. See 38 C.F.R. § 4.1 (2007). At present, however, there is no basis for a higher evaluation. Because the Board finds that the preponderance of the evidence establishes that the veteran's service-connected low back disability does not meet the criteria for a rating greater than that currently assigned, a higher rating is not warranted, and the reasonable doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Board has based its decision in this case upon the applicable provisions of VA's Schedule for Rating Disabilities. Although the evidence shows some limitation of motion of the lumbar spine due to the service-connected disability, there is no evidence that the nature and severity of the symptoms are beyond what is contemplated by the applicable criteria. The veteran has submitted no evidence showing that his service-connected low back disability has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, e.g., leave slips, employment records, etc.; and there is also no indication that the disorder has necessitated frequent periods of hospitalization. Consequently, while the veteran's back disability may well cause some impairment in his daily activities, there is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Thus, based on the record, the Board finds that the currently assigned 20 schedular rating adequately addresses, as far as can practicably be determined, the average impairment of earning capacity due to the veteran's service-connected lumbosacral strain. See 38 C.F.R. § 4.1; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability evaluation itself is recognition that industrial capabilities are impaired). Therefore, in the absence of such factors, the criteria for submission for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (2007) have not been met. Based on the foregoing, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER A schedular rating in excess of 20 percent for lumbosacral strain with mechanical low back pain and degenerative changes is denied. ____________________________________________ D. J. DRUCKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs