Citation Nr: 0812533 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 98-07 919 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Evaluation of herniated disc at the L4-L5 level, with spinal stenosis, currently evaluated as 40 percent disabling. 2. Evaluation of chronic headaches, currently evaluated as 0 percent disabling. 3. Entitlement to an effective date prior to January 29, 1999 for the grant of service connection for chronic headaches. 4. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from January 1978 to October 1983. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In a July 1999 determination, the Board granted a 40 percent evaluation for the herniated disc at L4-L5 level with spinal stenosis. In June 2000, the Court of Appeals for Veterans Claims (Court) granted the joint motion, vacating and remanding the claim of entitlement to an increased evaluation in excess of 40 percent for a herniated disc on an extraschedular basis. In April 2001, the veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge, in Washington, D.C. A transcript of the hearing is of record. In October 2002, the Board denied service connection for headaches, claimed as secondary to a low back disorder. The Board also denied the claim for an increased rating for a herniated disc at L4-L5, with spinal stenosis, and a claim for a total rating for compensation on the basis of individual unemployability (TDIU). In a February 2003 Order, the Court vacated the Board's October 2002 RO decision and remanded the matter to the Board for readjudication. In May 2004, the Board remanded the case to the RO for additional development. In January 2006, the Board granted service connection for headaches, and remanded the case to the RO for further evidentiary development with respect to the issues of a higher evaluation for a herniated disc and entitlement to a TDIU. In a Decision Review Officer's decision, dated in January 2006, the RO implemented the Board's grant of service connection for chronic headaches, and assigned a 0 percent rating, effective January 29, 1999. The veteran perfected an appeal to the rating assigned as well as the effective date. In April 2007, the Board remanded the case to the RO for further evidentiary development. In a July 2007 Order, the Court remanded the matter to the Board for readjudication. In November 2007, the Board remanded the case to the RO for procedural development. It is significant to note that, in November 2007, the Board remanded the case to the RO to address the question of whether the veteran submitted a timely substantive appeal as to the issues of entitlement to an initial compensable evaluation for headaches and entitlement to an earlier effective date for the grant of service connection for headaches. In a supplemental statement of the case (SSOC), issued in December 2007, the RO noted that a substantive appeal was received from the veteran in July 2006 in response to a statement of the case (SOC) dated June 30, 2006. The Board now finds that a timely substantive appeal had been filed by the veteran as to the issues of entitlement to a compensable evaluation for chronic headaches and entitlement to an earlier effective date for the grant of service connection for headaches. The Board thus has jurisdictional authority to review those issues on appeal. The issues of entitlement to a compensation evaluation for chronic headaches and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Degenerative disc disease is manifested by is manifested by recurring attacks of moderate and severe back pain and numbness, with only intermittent relief productive of severe limitation of motion. Degenerative disc disease of the lumbar spine is productive of no more than severe functional impairment. 2. Degenerative disc disease is not productive of pronounced intervertebral disc syndrome, nor does it show ankylosis, or incapacitating episodes having a total duration of at least six weeks during any 12 month period. Bedrest has not been prescribed. 3. On February 24, 1997, the RO received the veteran's claim of entitlement to service connection for headaches. 4. In a September 1997 rating decision, service connection was denied for stress headaches. The veteran filed a timely notice of disagreement; the RO issued a statement of the case on April 23, 1998; and the veteran perfected an appeal with the submission of a VA Form 9 on May 27, 1998. 5. The veteran did not subsequently withdraw his claim of entitlement to service connection for headaches. 6. In a January 2006 DRO decision, service connection was granted for chronic headaches effective January 29, 1999. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295 (before and after September 23, 2002) and 5237, 5243 (after September 26, 2003). 2. The criteria for an assignment of an effective date of February 24, 1997 for the grant of service connection for chronic headaches have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. While the notices provided to the veteran in August 2004 and February 2005 were not given prior to the to the initial RO decisions, the notices as provided by the RO prior to the transfer and recertification of the case to the Board complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Those letters informed the veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity at that time to submit additional evidence. In addition, the April 1998 SOC, the August 1998 SSOC, the October 1998 SSOC, the March 2000 SOC, the June 2005 SSOC, the June 2006 SOC, the June 2007 SSOC, and the December 2007 SSOC provided the veteran with an additional 60 days to submit additional evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. It also appears that all obtainable evidence identified by the veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. As noted above, VCAA notification pre-dated adjudication of this claim. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Despite initial inadequate notice provided to the veteran on the disability rating or effective date elements of his claims, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). To whatever extent the recent decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claim for an increased rating for the lumbar spine disorder is being denied, such matter is moot. In light of the hearing testimony provided by the veteran before the Board in April 2001, the May 2004 Board remand, and the June 2007 SSOC, the Board finds that the veteran was informed of the criteria for establishing a higher evaluation for degenerative disc disease of the lumbar spine. Specifically, the veteran was told that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. Therefore, the veteran has been provided with all necessary notice regarding his claim for an increased evaluation. Moreover, at the hearing, the veteran was informed of the evidence needed to show the severity of the impairment in his lower back and his contentions regarding his lower extremities; as such, he has actual knowledge of the information needed to support his claim. And, while the veteran has contended that he is paralyzed as a result of radiating pain from his lumbar spine, such impairment of the lower extremities has never been confirmed or documented throughout the entire appeal period. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Given the ample communications regarding the evidence necessary to establish an increased rating for degenerative disc disease of the lumbar spine and an earlier effective date for the grant of service connection for headaches, given that the veteran has offered testimony at a hearing before the Board, given the prior Board Remands, given that he has been provided all the criteria necessary for establishing higher evaluations and an earlier effective date, and considering that the veteran is represented by a highly qualified attorney, we find that any notice deficiencies are moot. See Conway v. Principi, 353 F.3d 1369, 1374 (2004), hold that the Court of Appeals for Veterans Claims must "take due account of the rule of prejudicial error." II. Factual background. Service medical records indicate that the veteran sustained a minor injury to the back while playing basketball in service. This condition was treated on an outpatient basis. By letter dated in February 1997, the veteran reported injuring his lower back while playing basketball in February 1979; he went to the doctor and they couldn't find anything wrong, but he continued to have problems with his back. The veteran indicated that he had a pinch in his lower back that would bring on episodes of pain with activity; he noted that, with severe episodes, he had severe headaches not curable by any medication. The veteran stated that his headaches have gotten gradually worse over the years. Submitted in support of the veteran's claims were VA outpatient treatment notes. During a clinical visit in September 1995, the veteran complained of intermittent lower back pain since service; he stated that he was evaluated then and told that it was a muscle problem. The veteran reported that forward bending caused pain in his back. The impression was history of low back pain. When seen in January 1997, it was noted that the veteran now had confirmed central herniated nucleus pulposus at L4-5 and L5-S1. The veteran complained of increased low back pain with symptoms of headaches, blurred vision, dizziness, impaired balance and weakness (fatigue). The pertinent diagnostic impression of herniated nucleus pulposus L4-5 and L5-S1. At a May 1997 VA neurological examination, the veteran complained of low back pain without leg pain. On evaluation, deep tendon reflexes were 2+, his gait was normal, and there were no paraspinal muscle spasms. The assessment indicated no radicular findings. The veteran was afforded a VA examination in June 1997, at which time he reported getting a pinch in his back that will send him to his knees. The veteran also stated that he now has increased episodes up to three times a month. The veteran also reported having severe headaches about five times a year. He stated that he becomes weak and even bedridden. The veteran also states that he can't bend over and pick anything up even if he bends his knees. Examination of the spine did not reveal any postural abnormalities and no fixed deformity; musculature of the back was within normal limits. Forward flexion was 100 degrees, backward extension was 20 degrees, lateral flexion was 25 degrees bilaterally, and rotation was 50 degrees bilaterally. The veteran indicated that although he is not really limited by pain, it just hurts all the time. No neurological involvement was identified. A CT scan of the lumbar spine showed a centrally herniated disc at L4-L5 and L5-S1; there was moderate spinal stenosis at the L4-L5 level. The pertinent diagnosis was status post herniated disc, L5, with moderate spinal stenosis, and centrally herniated disc, L5-S1. A neurological evaluation was also conducted. At that time, the veteran stated that he got a headache every time his back hurts. The veteran indicated that the pain worked up the back of his neck and can happen 2 to 3 times per day. He stated that he had no photophobia, nausea or vomiting; he stated that he took Motrin which takes care of the headache. The pertinent diagnoses were herniated disc L4-5 and L5-S1; moderate spinal stenosis L4-5; and stress headaches, by history. By a rating action in September 1997, the RO denied service connection for herniated disc and stress headaches. In a statement in support of claim (VA Form 21-4138), received at the RO in February 1998, the veteran expressed his disagreement with the denial of service connection for herniated disc and stress headaches. A statement of the case, addressing that issue (listed as issue #3), was issued in April 1998. In an appeal to Board of Veterans' Appeals (VA Form 9), received in May 1998, the veteran specifically stated that he was appealing issue #3. At a personal hearing in May 1998, the veteran maintained that he did not get headaches as a result of stress; rather, he argued that the headaches were brought on by severe back pain. He stated that, while the headaches eventually went away, he got headaches every time he had another severe episode of back pain. The veteran also described the severity of his low back disorder. On the occasion of a VA examination in July 1998, the veteran indicated that his back hurts constantly, but several times per month he experienced mild and severe attacks. He described a mild attack as one that feels like a crick in his back and lasts for 3 to 4 days and that Motrin provides some relief. A severe attack requires him to go to bed and lasts 5 to 6 days, and nothing provides relief. He stated that he can perform normal activities in between these attacks. On evaluation, no tenderness or muscle spasms were noted. He could heel and toe walk. Range of motion exercises revealed forward flexion to 90 degrees, extension to 33 degrees, lateral bending to the right to 20 degrees and to the left to 30 degrees, and bilateral rotation to 45 degrees. Contemporaneous x-rays of the lumbar spine revealed mild narrowing of the L4 disc space. The diagnosis was central disc herniation at L4-5 with mild spinal stenosis. The examiner noted that when the veteran is asymptomatic, he can do anything he wants, but that he does have rather frequent episodes of flare-ups in his low back. A VA progress note, dated in August 1998, indicates that the veteran was seen reporting that he ran out of Motrin and was told that he needed to see a physician for refill. He reported increased episodes of pain over the past 1 to 2 months. Physical examination and neurological findings were within normal limits. The prescription was refilled. A Hearing Officer's decision, dated in August 1998, granted service connection for herniated disk, L4-L5 with spinal stenosis; a 20 percent evaluation was assigned, effective February 14, 1997. Received in January 1999 was a statement in support of claim (VA Form 21-4138), wherein the veteran indicated that he was seeking service connection for "migraine headaches" secondary to his service-connected back disorder. At his January 1999 hearing, the veteran testified that he handles his pain about 10 to 15 percent of the time with medication, back support and breaks; however, about 30 to 40 percent of the time, he has moderate to severe episodes which render him ineffective because he cannot sit up or do anything. He stated that he has never experienced pain radiating into his legs, but that it seems to radiation into his upper body. The veteran indicated that, during the medium episodes, he gets blurred vision, dizziness and migraine headaches. The veteran also stated that his head simply throbs during severe episodes. The veteran reported that he has not worked since 1993, because he cannot find a job that will allow for inability to work during his frequent episodes of back pain. Another VA examination was conducted in March 1999, at which time the veteran described his lumbar pain as extremely sharp in nature; the pain was very intermittent and came in mild, moderate and severe presentation. He noted that the pain was severe about six times per year and incapacitated him for about five days. The veteran reported mild symptoms about three times every two months, which enabled him to maintain some work and engage in physical activity. He noted that the moderate pain is also about the same frequency or more severe with associated symptoms, such as headache and blurry vision. He indicated that the pain is increased with bending or rotation and the pain is decreased with rest and taking Motrin. It was also noted that associated symptoms were headache and blurry vision. The veteran reported no bowel or bladder changes. On examination, it was noted that the veteran had a normal gait. Observation of the posterior spine revealed no tenderness with palpation. There was no scoliosis, spinal spasms or limp. The veteran had full forward flexion. He was able to flex to 100 degrees. Extension was to 20 degrees. Rotation was to 40 degrees bilaterally. The veteran had no pain with these movements. The neurological examination revealed L2-S1 motor reflexes and sensory examination to be normal. Reflexes were symmetrical bilaterally. Babinski toes were down going bilaterally. There was no clonus present. There were no neurotension signs. The veteran had negative straight leg raise test. The examiner indicated that he was unable to elicit pain at the extremes of motion with this. The veteran had no neurological abnormalities and no postural deformities. X-ray study of the lumbar spine revealed AP and lateral spot films of the lumbar spine, joint spaces were all well observed and there were some mild arthritis in the L5-S1 facet. There were no scoliosis apparent and no bony lesions. The sacrum appears normal. The examiner stated that the pain in the back was associated with bending and rotational movements and can occur and provide incapacitating pain to the veteran, limiting his physical activity. The pertinent diagnosis was lumbar degenerative joint disease of the L5-S1 facet. At a personal hearing in June 1999, the veteran indicated that he has been suffering from headaches ever since he began experiencing back problems. In a July 1999 VA neurological evaluation, the examiner noted the veteran had severe headaches approximately two times per months. The headaches, when they occurred, lasted approximately 2 to 3 days. It was noted that the veteran had not been treated at the VA Medical Center (VAMC) for this headache condition. Neurological evaluation was completely within normal limits. The examiner reported that his description of the headaches were more consistent with musculoskeletal-type headaches. An MRI study had indicated "a very small central herniated disc at the C4-5 level" which was causing "mild spinal stenosis." It was indicated this could be related to his current low back pain. It was noted that the veteran was currently being treated for these chronic, recurring headaches and it was recommended that he be followed in the neurological clinic for evaluation and treatment of this condition. Regarding the question of whether or not the migraine headaches are related to his lumbar disc, the examiner stated that the "answer is we do not feel that he has migraine headaches related to his lumbar disc disease." In August 1999, the veteran wrote to the Board and noted that in July 1999 he met with a neurologist in Memphis. The veteran stated that he had been informed that his headaches were probably musculoskeletal headaches rather than migraines. He was informed that musculoskeletal headaches could be worse than migraines because the pain from a musculoskeletal headache can last from 3 to 5 days. The veteran contended that this is what he experiences approximately twice monthly. He also stated that he had been informed that there were tests for both types of headaches but that this testing could be "fatal." He indicated that he went to see this physician in August 1999 regarding the report the physician had written in July 1999. The veteran noted that this report had made his problem sound "small compare to migraines." The veteran stated that the physician had to write this report that way because of the format. At another hearing in April 2001, the veteran described mild, medium, and severe episodes (as indicated above). The veteran noted the use of pain pills to treat this disorder. During severe episodes, he contended that he was bedridden from anywhere from 3 to 6 days. The veteran noted weakness, blurred vision, nausea and dizziness during the severe episodes. With regard to the veteran's work history, he reported that he has not been permanently employed for approximately eight years. The veteran noted sporadic employment as a substitute teacher and with a temp agency. The veteran indicated that he wished to work but could not. The veteran was seen at a clinic on April 30, 2001 with a 4 day history of recurrence of central low back pain extending into his neck with a full type, generalized headache with photophobia and tiredness. The veteran reported that the pain in his back to his neck felt like somebody was ringing his back like a wet rag; he stated that those symptoms were not unusual for him. The veteran stated that the symptoms occurred a couple of times a year and lasted 4 to 5 days. Evaluation of the spine revealed no appreciable spasm. The assessment was lumbar disc condition with associated headaches by history. The veteran was seen at a VA neurosurgery clinic on July 8, 2003, at which time it was noted that he had a longstanding history of low back pain that is manifested as back pain with radiation into L4 and L5 on the left. On examination, motor strength was 5/5 in both lower extremities; reflexes were 1+ and symmetric. Sensation was intact. An MRI revealed slight worsening of the disk bulges at L3-4, L4-5, and L5-S1. The assessment was degenerative disk disease. In October 2003, the veteran was seen for a follow up evaluation of his low back pain. He stated that his condition had gotten worse; he reported experiencing sudden numbness with walking. The veteran indicated that Ibuprofen works when the pain is mild; however, he had difficulty getting out of bed when the pain is bad. The assessment was back pain. An MRI of the lumbar spine, dated in December 2003, noted a small herniated disc unchanged from April 2003. The veteran was seen for a physical therapy consultation in December 2004. At that time, the veteran stated that his back pain was intermittent, exacerbated by quick movements which feels like a pinch in his back; it was noted that the veteran is laid up for 3 to 5 days during such episodes. The veteran reported that he sometimes wakes up and 90 percent of his back feels like it is on fire. The assessment was chronic low back pain from degenerative joint disease of the lumbar spine. Of record is a treatment report from Lawrence S. Nichols, D.C., dated in March 2005, indicating that the veteran was seen at the clinic complaining of severe low back pain with radiation of pain into the lower extremities; he also complained of neck pain. Examination of the lumbar spine revealed a restricted range of motion with pain upon flexion, extension, right rotation, left rotation, left lateral flexion, and right lateral flexion at the level of L1-L5. Static palpation revealed rigidity and myospasms at the quadrates lumborum and the sacroiliac joints bilaterally. Motion palpation demonstrated abnormal segmentation at L3, L4, and L5. Deep tendon reflexes of the patellar were diminished bilaterally. Bilateral straight leg raising, Galdthwaites, and Kemps tests were positive. X-ray study of the lumbar spine revealed degenerative changes at L4-L5 and L5-S1, and there appeared to be a spondylolisthesis present at L5-S1. The pertinent diagnosis was subluxation complex L5-S1, secondary to spondylolisthesis L5-S1 complicated by degenerative changes at L4-L4 and L5-S1. The veteran was afforded a VA spine examination in May 2005. The veteran indicated that he had three levels of pain in his back. He noted that, when the pain was mild, he had a pinch in his back with decreased range of motion. When the pain was medium, he also experienced a pinch in his back with diffuse pain and headaches; he also became fatigued and unable to sit up. And, when the pain became severe, he would be bedridden for 4 to 6 days at a time. The veteran indicated that his back pain radiated into his legs. He also reported episodes of numbness that occurred from the waist down that had caused multiple falls. The veteran related that he had muscular headaches that produced severe episodes 1 to 2 times a week and lasted 5 to 6 hours; and, when the headaches occur, he was useless. The veteran described his pain as 6 out of 10 in intensity; he also reported weakness, fatigability, limitation of repetitive and lack of endurance. The veteran stated that the pain was constant; he also reported flare-ups. The veteran indicated that, in the past 12 months, he has been bedridden anywhere from 3 to 6 days; he stated that physical therapy did not provide any relief. On examination, it was observed that the veteran ambulated with a limp and he had a cane. He had paraspinal tenderness. The lumbar spine had a forward flexion from 0 degrees to 90 degrees, extension was from 0 degrees to 30 degrees, rotation was from 0 to 30 degrees bilaterally, and lateral flexion was 0 degrees to 30 degrees, bilaterally. The veteran did have muscle spasms; he had pain with movement and fatigued with movement. Motor examination appeared to be 5/5 in his bilateral lower extremities; he had normal sensation. Deep tendon reflexes were 2+ throughout. Lasegue's sign was negative. The pertinent diagnoses were chronic low back pain, and lumbar radiculopathy. The examiner indicated that the veteran had a mild decrease in range of motion; he ambulated well with a cane and he had a limp, but he had normal motor function. A VA neurological examination was also conducted in May 2005. At that time, the examiner reported that a brain MRI conducted in February 2005 noted normal findings. Based on this history and examination, the VA examiner commented that the veteran's neurological examination was benign. It was noted that cervical spine problems could sometimes lead to headaches, but there was no similar association with low back pain. However, the examiner also commented that chronic pain of any sort, including low back pain, could produce stress and lead to a tension headache, that is, an indirect effect. During a clinical visit in June 2005, it was noted that cranial nerves II through XII were intact. Motor strength was 5/5 in both lower extremities. Deep tendon reflexes were 1+. Sensory intact to pinprick in the lower extremities, bilaterally. Vibration was intact in the lower extremities. The examiner noted that the veteran had a past diagnosis of multi-level degenerative disc disease; he seemed to be getting some relief from chiropractor visits. In a medical statement, dated in July 2005, the veteran's treating VA neurologist indicated that the veteran had chronic low back pain due to degenerative joint disease and spondylosis; he noted that the veteran has difficulty getting out of bed when he gets the pain attacks. The physician indicated that he suggested that the veteran take be rest for 3 to 4 days when he gets severe pain. In another letter, dated in September 2005, the veteran's treating physician indicated that the veteran had been under his care for degenerative disc disease since 1995; he noted that the condition is chronic and will only get worse. The physician noted that the veteran suffers from a myriad of symptoms, to include chronic fatigue, inability to sit up straight for long periods, frequent severe headaches, and intermittent episodes of immobility. The physician opined that, because of his back condition, the veteran has not been able to handle a regular job. In yet another medical statement, dated in October 2005, the veteran's treating physician noted the veteran's headaches were not entirely typical for migraines, but they were being treated as such. He further commented that he had no doubt that the veteran's pain during headaches was caused by the lower back condition. On the occasion of a VA examination in February 2006, the veteran stated that the back pain radiates up his spine into his head, which is non-organic. He also stated that he gets pain and tingling that radiates down the posterior aspect of his thigh to just above his knees; he noted that most of the pain occurred in the back of his thighs. The veteran described his pain as 6 out of 10 in intensity; he also described the pain as intermittent. It was noted that the back pain is exacerbated by quick movements and long periods of sitting. He reported flare-ups 3 to 4 times a week, which lasts 15 to 20 minutes. He had no bowel or bladder incontinence. He walked with a cane when he had pain. He was currently unemployed; and he reported difficulty with activities of daily living secondary to having to be in bed for long periods of time during the day. The veteran also reported some dizziness, which he relates to the headaches. On examination, the veteran had forward flexion from 0 to 90 degrees, and extension was from 0 to 25 degrees both active and passive. He had lateral flexion from 0 to 20 degrees both active and passive; he also had right and left lateral rotation from 0 degrees to 30 degrees active and passive. He reported pain with extremes of motion. There was no additional limitation of motion with repetitive motion. The veteran reported having numerous incapacitating episodes over the last 12 months that led to bed rest for several days. The veteran had no tenderness to palpation. He had no step off and no deformities. He had no evidence of muscle spasm when he walked some place. He had 5/5 strength in his quads, TIB anter, EHL and gastrocs bilaterally. He was fully sensate to light touch bilaterally. He had decreased deep tendon reflexes of his Achilles and quad tendon although they were equal. He had no clonus. He had downgoing toes with Babinski. He had negative straight leg raise bilaterally. He had negative flip sign bilaterally. He had negative Lasegue sign. He did have a couple of positive waddell signs, one being axial compression. He did have pain with rotation, which is another. The assessment was lumbar strain. The examiner noted that there was some pain with range of motion testing at this time. The examiner explained that, it is conceivable that pain could further limit function as described particularly after being on his feet all day; it is not feasible, however, to attempt to express any of this in terms of additional limitation of motion, as those matters cannot be determined with any degree of medical certainty. Of record is the report of an EMG, dated in April 2006, which revealed a normal nerve conduction velocity and EMG of the upper extremity and lower extremities was normal. The examiner noted that x-rays of the lumbar spine were normal. The examiner further noted that, during the history and physical, there were no persistent symptoms compatible with sciatic neuropathy. There were no abnormalities with deep tendon reflex testing. There were really no abnormalities with neurologic testing whatsoever. The examiner stated that, by his examination and the x-rays and EMG, there was no subjective or objective evidence consistent with intervertebral disk syndrome. The veteran was afforded another VA examination in June 2007. He reported a fair amount of low back pain that radiates up the spine into his head; he stated that he has severe headaches that are incapacitating 1 to 2 times a month, each episode lasting anywhere from 5 to 7 days. He described those as migraine type headaches in which he has visual disturbances, eye sensitivity to light and dizziness. He essentially has to be bed ridden during those spells. The veteran reported getting the headaches in association with back pain, but he does get back pain without associated headaches. The examiner noted that the veteran has not had, per his own account, a physician prescribed bed rest to him in the past 12 months. The veteran did report that, when he gets attacks of severe back pain, he takes Percocet and rests. He described the intensity of this pain as 7 out of 10 and stated that it is fairly constant. It was noted that the painful episodes have left the veteran unable to hold a regular job due to the severity and frequency of his episodes. It was noted that his most recent MRI, dated in December 2006, revealed early degenerative disc disease manifested by dehydration of the disks at L3-4 and 5 with bulging of the annulus fibrous at L3-4, and 5 and a right paracentral subannular disk protrusion at L3 without foramen stenosis or nerve root impingement. There were no objective findings of foramen stenosis or nerve root impingement. He did not currently wear brace for his back, but did ambulate with a cane in the left hand. He denied any bowel or bladder symptoms such as incontinence. He also complained of radiating pain down the front of the left leg thigh region that does not extend below the level of the knee. On examination, it was noted that the veteran walked with a well balanced gait. He did ambulate with a cane in the left hand. There was no significant antalgia seen. Clinically, there was no abnormal curvature to the spine in either the coronal or sagittal plane. There was no paraspinal spasm or tenderness to touch at the thoracic lumbar spine. Spinous processes were non-tender. Range of motion of the lumbar spine revealed a forward flexion to 90 degrees, extension to 30 degrees, right and left lateral rotation to 35 degrees, and 35 degrees of right and left flexion. The examiner noted that the veteran did have some discomfort with repetitive motion but no loss of motion with repetitive use of the lumbar spine. He demonstrated 5/5 muscle strength in all muscle groups of the lower extremities including hip flexors, abductors, quads, hamstrings, anterior tibialis, gastrocsoleus and EHL muscles. He had normal sensation to all dermatomals bilaterally to L3 to S1. He had 2+ dorsalis pedis pulse on both lower extremities. He had a negative straight leg raise bilaterally with no evidence of clonus or spasticity. He had downgoing Babinski bilaterally. His reflexes at the Achilles and patella tendon were symmetric. X-ray study of the lumbar spine showed a normal alignment in the coronal sagittal planes. There was normal vertebral body height. There was no evidence of subluxation during flexion and extension maneuvers. Disk spaces appeared well maintained. There was no evidence of significant degenerative changes seen. The assessment was degenerative disk disease lumbar spine, and lumbar radiculitis left lower extremity. The examiner stated that he did not see any symptoms compatible with sciatic neuropathy or characteristic pain, muscle spasm or neurologic findings to suggest sciatica. The veteran did report a history of burning pain down the front of the thigh on the left to about the level of the knee, but there was no objective evidence of radiculopathy but the findings were more consistent with radiculitis. There were no specific neurologic findings appropriate to the site of the diseased disk other than pain. There was no reflex or motor changes at those levels elicited. The veteran did have intermittent relief with recurring attacks. The veteran reported a total of 12 weeks described as incapacitating episodes stemming from back pain and headaches in the past 12 months; during those periods, bed rest was recommended by his private doctor back in 2005, but he had not seen the doctor in several years. There was pain with range of motion testing. The examiner stated that it was conceivable that pain could further limit function as described; however, it is not feasible to attempt to express any of this in terms of additional limitation of motion as those matters cannot be determined with any degree of medical certainty. III. Legal Analysis-Evaluation of degenerative disc disease, lumbar spine. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 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, No. 05-2424 (U.S. Vet. App. Nov. 19, 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. After careful review of the evidentiary record, the Board concludes that the veteran's low back disorder has not changed and a uniform evaluation is warranted. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; and Gilbert v. Derwinski, 1Vet. App. 49, 55 (1990). The veteran's low back disorder has been rated as 40 percent disabling under the provisions of Diagnostic Code 5293. As a preliminary matter, the Board notes that during the course of this appeal the regulations for rating disabilities of the spine were twice revised effective September 23, 2002, and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002) and 68 Fed. Reg. 51454 (Aug. 27, 2003). The revised amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). The Rating Schedule provides that traumatic and degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2007). Limitation of motion must be objectively confirmed by findings such a swelling, muscle spasm, or satisfactory evidence of painful motion. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2007). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). A VA General Counsel opinion has also held that Diagnostic Code 5293, intervertebral disc syndrome, involved loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 was applicable. VAOPGCPREC 37-97 (O.G.C. Prec. 37-97). Prior to September 2003, the Rating Schedule provided ratings for limitation of motion of the lumbar spine when limitation was slight (10 percent), moderate (20 percent), or severe (40 percent). 38 C.F.R. § 4.71a, Code 5292 (effective before September 26, 2003). For lumbosacral strain ratings were provided when there was evidence of characteristic pain on motion (10 percent), muscle spasm on extreme forward bending with loss of lateral spine motion, unilateral, in a standing position (20 percent), or listing of the whole spine to the opposite side with a positive Goldthwaite's sign, marked limitation of forward bending in a 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 (40 percent). See 38 C.F.R. § 4.71, Code 5295 (effective before September 26, 2003). Prior to September 2002, ratings were provided for intervertebral disc syndrome when the disorder is shown to be mild (10 percent), moderate with recurring attacks (20 percent), severe with recurring attacks and intermittent relief (40 percent), or pronounced with 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 (60 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective before September 23, 2002). Effective September 23, 2002, Diagnostic Code 5293 was revised to evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Ratings were provided for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months (10 percent), with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months (20 percent), with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months (40 percent), or with incapacitating episodes having a total duration of at least six weeks during the past 12 months (60 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). It was noted that for purposes of evaluations, an incapacitating episode was a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" meant orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that were present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1). It was further noted that when evaluating on the basis of chronic manifestations, orthopedic disabilities were to be evaluated using criteria for the most appropriate orthopedic diagnostic code or codes and neurologic disabilities were to be evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (2). If intervertebral disc syndrome was present in more than one spinal segment, provided that the effects in each spinal segment were clearly distinct, each segment of the spine was to be evaluated on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (3). The Rating Schedule provides ratings for disability of the sciatic nerve (or neuritis or neuralgia) when there is evidence of mild incomplete paralysis (10 percent), moderate incomplete paralysis (20 percent), moderately severe incomplete paralysis (40 percent), severe incomplete paralysis with marked muscular atrophy (60 percent), or complete paralysis when the foot dangles and drops, has no active movement possible of muscles below the knee, and with flexion of knee weakened or (very rarely) lost (80 percent). See 38 C.F.R. § 4.124, Diagnostic Codes 8520, 8620, 8720 (2007). It is noted that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor. Effective September 26, 2003, the regulations for rating disabilities of the spine were revised with reclassification of the diagnostic codes. These reclassified diagnostic codes include 5237 (Lumbosacral or cervical strain), 5242 (Degenerative arthritis of the spine), and 5243 (Intervertebral disc syndrome). Reference is made to Diagnostic Code 5003 for degenerative arthritis of the spine and to the formula for rating intervertebral disc syndrome based on incapacitating episodes with instructions to apply the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, The Spine (effective from September 23, 2003). The September 2003 regulation amendments provide a general rating formula for diseases and injuries of the spine (for diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) 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 as follows: For unfavorable ankylosis of the entire spine (100 percent); For unfavorable ankylosis of the entire thoracolumbar spine (50 percent); For unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 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 (20 percent); and For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height (10 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (effective from September 23, 2003). It is noted that diseases and injuries of the spine should be evaluated upon any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion as noted. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). Range of motion measurement are to be rounded off to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). The September 2003 regulation amendments also provide a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent); With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective from September 26, 2003). In the present case, the Board finds that the evidence of record does not warrant a rating in excess of 40 percent under either the former or revised spinal disorders rating criteria. Based on the above, with consideration of DeLuca and the veteran's symptomatology in total, the Board finds that the veteran's back disorder is manifested by no more than severe limitation in range of motion and severe lumbosacral strain warranting a 40 percent rating, under the former Diagnostic Codes 5292 and 5295. 38 C.F.R. § 4.71a, Diagnostic Codes 5292 and 5295 (2002). A 40 percent was the maximum rating under both of these former diagnostic codes. Johnston v. Brown, 10 Vet. App. 80, 85 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). In order to warrant a higher evaluation for the low back disability, the evidence must demonstrate pronounced intervertebral disc syndrome or unfavorable ankylosis. The evidence does not show that the veteran suffers from pronounced intervertebral disc syndrome indicated by 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. The Board acknowledges that the veteran's treating physician, Dr. U.K.S., in July 2005, suggested that the veteran take bed rest for 3 to 4 days when he gets severe back pain; however, a review of the voluminous record fails to show that the veteran has been prescribed bed rest as part of a treatment plan. In fact, during the June 2007 VA examination, the veteran stated that, in the last 12 months, he had not had a physician prescribed bed rest to him. While the veteran reported flare-ups of back pain during examination in February 2006, there is no credible evidence of record that the veteran has suffered any incapacitating episodes. It is noteworthy that, in April 2006, a VA examiner noted that x-rays and EMG studies revealed no subjective or objective evidence consistent with intervertebral disc syndrome. An x-ray study in May 2007 showed disk spaces to be well maintained; and, there was no evidence of significant degenerative changes. Moreover, there was no radiculopathy noted in the lower extremities. In fact, the June 2007 VA examination report indicates that there were no specific neurologic findings appropriate to the site of the diseased disk other than pain. As such, the Board finds that the preponderance of the evidence is against a 60 percent evaluation for intervertebral disc syndrome under Diagnostic Code 5293 or the revised criteria. In addition, the veteran does not warrant a higher evaluation under the new general rating criteria. Under the general rating, a 50 percent evaluation is warranted upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. There is no evidence demonstrating unfavorable ankylosis. At the VA examination of June 2007, the veteran was found to have forward flexion to 90 degrees, extension was 30 degrees, and lateral bending was 35 degrees. Clearly, there is no unfavorable ankylosis. The Board acknowledges that the veteran reports weakness and numbness in the lower extremities. He has also reported flare-ups three times a week with increased pain rated a 9 out of 10. Although the veteran is competent to report that he has weakness and numbness, the Board concludes that the examination reports prepared by a skilled professional is more probative of the degree of the veteran's impairment. Because the 40 percent evaluation is the maximum for limitation of motion without ankylosis further DeLuca consideration is not warranted. Johnston. Accordingly, a higher rating pursuant to the general rating formula effective September 2003 is also not warranted. Thus, a rating under the former or revised Diagnostic Codes 5293/5243 for IDS is not warranted. 38 C.F.R. § 4.71a (2002, 2007). Although a separate evaluation may be assigned for neurological deficits, the most probative evidence establishes that the veteran does not have neurological deficits. In this regard, in March 2005, Dr. Nichols reported findings of diminished reflexes in the lower extremities; he also noted that bilateral straight leg raising, Goldthwaite's, and Kemps tests were positive. However, in April 2006, a VA examiner noted that there were no abnormalities with deep tendon reflex testing. On the recent VA examination in June 2007, it was noted that there was no objective evidence of radiculopathy and no specific neurologic findings appropriate to the site of the diseased disk other than pain. In light of these findings, the Board finds that a mere finding of diminished reflexes in 2005 does not warrant a separate evaluation for neurological impairment or a rating in excess of 40 percent. Given the evidence described above, the Board finds that there is no basis under the former Diagnostic Code 5293 or the revised Diagnostic Codes 5237 or 5242 for awarding an evaluation in excess of 40 percent. The Board acknowledges that, over the past 10 years, the veteran has continuously maintained that his back manifests three levels of pain; and, on occasions when the pain is severe, he often becomes paralyzed. However, throughout those 10 years, the veteran has never submitted any probative evidence in support of his claim. In fact, the clinical findings of record have shown a normal range of motion in the lumbar spine; and, his neurological evaluations have been essentially normal. Consequently, his contentions regarding the severity of his back disorder and his report of little intermittent relief are unsupported and not credible. In reaching this determination, the Board has considered the provisions of Diagnostic Code 8520 and guidance established in 38 C.F.R. §§ 4.123, 4.124. However, the voluminous record does not establish that the veteran manifest the symptoms which would warrant a separate evaluation for neurological dysfunction. In essence, the veteran's neurological manifestation is pain. Beyond that subjective complaint, the evidence shows a normal motor examination, normal reflexes, and no other organic neurological changes such as muscular atrophy or trophic changes. Therefore, the Board finds that a higher rating under the combined criteria is not warranted. The Board has also considered the issue of whether the veteran's service-connected degenerative disc disease alone presents an exceptional or unusual disability picture, as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (1) (2006); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Significantly, no reliable evidence has been presented showing factors not already contemplated by the rating criteria, such as frequent periods of hospitalization or incapacitating episodes, due solely to the veteran's service-connected degenerative disc disease of the lumbar spine, as to render impractical the application of the regular schedular standards. There is no evidence of an unusual clinical picture, symptoms which are out of the ordinary, or any other factor which could be characterized as exceptional or unusual regarding the veteran's lumbar spine disability, and the veteran has pointed to no such symptoms. There is no evidence that the veteran's low back disability has resulted in him being hospitalized in recent years. The only evidence of record regarding the affect of the back disorder on employment is the veteran's statements, which are not supported by the evidentiary record. In September 2005, the veteran's treating physician indicated that he could not handle a regular job due to his back disorder; however, he did not submit any clinical findings in support of that statement. In February 2006, the VA examiner stated that it was conceivable that pain could further limit function particularly after the veteran has been on his feet all day; however, he stated that it was not feasible to attempt to express any of this in terms of additional limitation of motion. Based on this evidence, the Board finds that the veteran's low back disability, while impacting his ability to work, has not caused a marked interference with his ability to be employed. Thus, the level of interference with the veteran's industrial abilities due to the low back disorder is fully contemplated in his current evaluations under the rating schedule. The Board finds that the veteran's service- connected low back disability does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. In light of the foregoing, the Board finds that the criteria for submission for assignment of an extraschedular rating under 38 C.F.R. § 3.321(b) (1) are not met. As the preponderance of the evidence is against the claim for a higher evaluation, the benefit-of-the-doubt doctrine does not apply; therefore, the claim for a higher evaluation must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Legal Analysis-EED-S/C headaches. Unless specifically provided otherwise, the effective date of an award of compensation based on an original claim shall be fixed in accordance with facts found but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C.A. § 5110(a). The implementing VA regulation provides that the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(a). The effective date for an award of service connection for a disability shall be the day following separation from active service or date entitlement arose if the claim was received within one year after separation from service; otherwise, the effective date shall be date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b) (2) (i). An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.302(b) (2007). The law requires that a substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent possible, the argument should be related to specific items in the SOC. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.202. The RO assigned an effective date of January 29, 1999 for the grant of service connection for headaches on the basis that a claim to reopen entitlement to service connection for headaches was received on that day. The veteran seeks an earlier effective date. He argues that he filed a notice of disagreement in January 1998 with the denial of service connection for headaches in the September 1997 rating decision and that therefore the February 24, 1997 claim remained open. In a statement, dated in February 1997, the veteran raised the issue of service connection for headaches associated with back pain. Date stamps on this document show that it was initially stamped as being received on February 24, 1997. In a September 1997 rating decision, service connection was denied for herniated disc and stress headaches. The veteran filed a timely notice of disagreement with the denial of service connection for headaches in January 1998. The RO issued a statement of the case on April 23, 1998, wherein it listed issue # 3 as entitlement to service connection for herniated disc and stress headaches. The veteran submitted a VA Form 9 to the RO on May 27, 1998, in which he stated that he was appealing issues #1 and 3 listed on the statement of the case. [Although he made no specific argument, none was required. While the regulation defining a substantive appeal indicates that the substantive appeal "should set specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed," the regulation does not require such arguments. 38 C.F.R. § 20.202 (2007).] In a statement attached to the Form 9, the veteran indicated that he was treated for complaints of headaches in service, and he has suffered from headaches for many years. It is also noteworthy that, during a personal hearing at the RO in May 1998, the veteran offered testimony regarding his claim for service connection for headaches. As was described in the Introduction, service connection was ultimately granted for chronic headaches, effective January 29, 1999. The January 29, 1999 effective date was based upon the receipt of a statement in support of claim (VA Form 21- 4138), where the veteran requested service connection for migraine headaches, secondary to his service-connected back disorder. The RO has stated that the veteran was informed of the denial of his claim for headaches by letter dated on September 15, 1997, but he did not file an appeal of that denial. In this regard, the question is whether the veteran filed an appeal to the September 1997 rating action. When it is not clear from an NOD which of multiple issues addressed in the rating decision the claimant desires to appeal, the RO should request clarification from the claimant. 38 C.F.R. § 19.26. If RO personnel have a question as to the adequacy of an NOD, the procedures of an administrative appeal must be followed 38 C.F.R. § 19.27 (2007). Administrative appeals are initiated by a VA official, and the claimant must be notified if such an appeal is filed. 38 U.S.C.A. § 7106 (West 2002); 38 C.F.R. §§ 19.50, 19.52 (2007). The veteran's January 1998 letter can reasonably be understood as expressing disagreement with the September 1997 decision denying service connection for headaches. The RO's issuance of the April 1998 statement of the case is a demonstration that RO personnel acknowledge receipt of the veteran's NOD to the September 1997 rating decision. Thus, the veteran initiated an appeal of the September 1997 denial of service connection for headaches. And, he submitted an appeal to the Board of Veterans' Appeals (VA Form 9) in May 1998, in response to the SOC issued in April 1998. As such, the veteran's appeal of the September 1997 decision remained open, and had not become a final decision, when the RO granted service connection for chronic headaches in the January 2006 rating decision. The veteran never withdrew his claim of entitlement to service connection for headaches. Because the veteran filed his claim on February 24, 1997 and continuously pursued the claim thereafter, the date of receipt of his claim, February 24, 1997, is the effective date of the grant of service connection for headaches. After having carefully considered the matter, and for reasons expressed immediately below, the Board finds that the veteran filed a valid NOD as to the denial of service connection for headaches in the September 1997 rating decision. Because the veteran filed a NOD, the September 1997 RO rating decision which denied the claim did not become final. The claim of entitlement to service connection for headaches was continually prosecuted by the veteran since February 24, 1997. Therefore, the effective date for the grant of service connection for headaches is February 24, 1997. In summary, for reasons and bases expressed above, the Board concludes that an effective date of February 24, 1997 may be assigned for service connection for headaches. To that extent, the appeal is allowed. ORDER A rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. An effective date of February 24, 1997 is assigned for the grant of service connection for headaches. REMAND As noted above, the VCAA requires that VA must provide notice that informs the claimant (1) of the information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. Furthermore, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). The veteran indicates that he suffers from severe incapacitating headaches at least 1 to 2 times per month, which lasts anywhere from 5 to 7 days. The veteran described visual disturbances, eye sensitivity to light and dizziness associated with the headaches. He reported taking an assortment of medications to control the headaches, including Amitriptyline and Imipramine. The Board notes that the criteria for evaluating the severity of migraines, 38 C.F.R. § 4.124a Diagnostic Code 8100, requires consideration as to the frequency of prostrating attacks due to migraines. Upon review of the evidentiary record, the Board finds that the May 2005 VA examination report does not specifically address the frequency or duration of the veteran's headaches or whether he experiences "prostrating" attacks. Consequently, the Board finds that further medical evaluation as to this issue would also be helpful. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that in the case of a TDIU claim, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the veteran's service- connected disability has on his ability to work. 38 C.F.R. § 5.107(a) (West 2002); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.10, 4.16(a) (2007); see also Colayong v. West, 12 Vet. App. 524, 540 (1999). In this case, there is no examination report of record assessing the effect of the service-connected PTSD on the veteran's ability to maintain gainful employment. To ensure that VA has met its duty to assist and to ensure full compliance with due process requirements, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO should request the veteran to identify all medical care providers who have treated him for his chronic headaches since May 2005. The RO should obtain a copy of all treatment records referred to by the veteran, and which have not already been associated with the claims folder. Any and all VA treatment records not already on file must be obtained regardless of whether in fact the veteran responds to the foregoing request. 2. The veteran should be afforded an examination to determine the severity of his service-connected headaches. The claims file must be made available to the examiner for review. All studies deemed appropriate should be performed and all findings should be set forth in detail. The frequency and duration of attacks and description of level of activity the veteran can maintain during attacks should be noted. The examiner should specifically state whether the attacks are prostrating in nature. The examiner should also indicate the precipitating factors, aggravating factors, alleviating factors, current treatment, response, and side effects. 3. The RO should obtain an appropriate medical opinion as to the effects of the veteran's service-connected disabilities on his ability to obtain and maintain gainful employment. 4. Thereafter, the RO should readjudicate the issues of entitlement to a compensable evaluation for chronic headaches, and entitlement to a total compensation rating based on individual unemployability. Thereafter, the case should be returned to the Board for the purpose of appellate disposition, if indicated. The purposes of this REMAND are to further develop the record and to accord the veteran due process of law. By this REMAND, the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs