Citation Nr: 1001968 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 01-06 458 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a low back disorder. 2. Entitlement to a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kathryn M. Fallon, Attorney WITNESS AT HEARING ON APPEAL Appellant, with separate appearance by attorney at another hearing ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served a period of active duty for training (ACDUTRA) from January 1977 to September 1977. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Boston, Massachusetts. This matter had been remanded by the Board several times for additional development, adjudicative actions, and due process actions. Most recently, in November 2007, the Board remanded the claims at issue herein for a new VA examination to determine the current severity of the Veteran's low back disability. This matter has now been returned to the Board for adjudicative action. The Veteran testified at a hearing before a Member of the Board in July 2002. However, during the course of the appellate proceedings herein, that Member left the Board. Therefore, the Veteran was afforded the opportunity to be heard by a current Member of the Board. In August 2007, the Veteran's attorney presented argument and documentary evidence to the undersigned Veteran's Law Judge at an August 2007 video teleconference hearing. While this case was undergoing remand development, the rating for the low back disorder was raised from 20 to 40 percent, effective the date of the reopened claim. The matter is back before the Board to evaluate whether a further increase is in order. FINDINGS OF FACT 1. Prior to July 19, 2007, the Veteran's low back disability was not shown to be productive of pronounced intervertebral disk syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings; it was also not shown to be productive of incapacitating episodes having a total duration of 6 weeks during any 12 month period; and there was no evidence of ankylosis of the spine. 2. Beginning July 19, 2007, the Veteran's low back disability was shown to more likely than not be productive of pronounced intervertebral disk syndrome. There was no evidence of spinal ankylosis. 3. Prior to July 19, 2007, the Veteran was service connected for cervical spine spondylolisthesis, rated 20 percent disabling; a low back disorder, rated 40 percent disabling; and spastic dysphonia, rated 0 percent disabling. Her combined disability rating was 50 percent. 4. Prior to July 19, 2007, the evidence did not show that the Veteran was unable to engage in substantially gainful employment solely as a result of her service connected disabilities. 5. Beginning on July 19, 2007, the Veteran's had a single disability rated 60 percent disabling and a combined disability rating of 70 percent. 6. It is more likely than not that beginning on July 19, 2007 the Veteran was shown to be unable to engage in substantially gainful employment as result of her service connected disabilities. CONCLUSIONS OF LAW 1. Prior to July 19, 2007, the criteria for a rating in excess of 40 percent for the Veteran's low back disability were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, diagnostic code 5293 (1999); 38 C.F.R. § 4.71a diagnostic code 5293 (2003), 38 C.F.R. § 4.71a diagnostic codes 5237, 5243 (2009). 2. With resolution of reasonable doubt, beginning July 19, 2007, the criteria of a rating of 60 percent, but no higher, for the Veteran's low back disability were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, diagnostic code 5293 (1999); 38 C.F.R. § 4.71a diagnostic code 5293 (2003), 38 C.F.R. § 4.71a diagnostic codes 5237, 5243 (2009). 3. Prior to July 19, 2007, the Veteran did not meet the criteria for TDIU. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.343, 3.344, 4.16. 4. Giving the benefit of the doubt to the Veteran, beginning July 19, 2007, the Veteran was shown to be unable to work due to her service connected cervical spine, low back, and spastic dysphonia disorders. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321, 3.343, 3.344 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist During the pendency of this appeal, Congress enacted the Veterans Claims and Assistance Act of 2000 (VCAA). The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect on the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004 (July 16, 2004). The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre- adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In 2007, the Court of Appeals for Veterans Claims (Court) held that the VCAA's notice requirements are applicable to all five elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, a claimant must be notified that a disability rating and an effective date for the award of benefits will be assigned if service connection is for a claimed disability is awarded. Id at 486 In this case, the Veteran was sent notices that explained the respective duties of VA and the claimant to obtain evidence in support of the claims advanced herein. A December 2003 letter explained that, in order to receive an increased rating for a service connected disability, the Veteran needed to show that the disability got worse. It also explained that VA would request all records held by Federal agencies and would make reasonable efforts to assist the Veteran in obtaining private records or evidence necessary to support her claim. In January 2009, the Veteran was sent a letter that generally explained the manner in which VA assigns disability ratings as well as the criteria applicable to the Veteran's specific claim(s). While the Veteran was not provided VCAA notice specific to the criteria for receiving TDIU, nor were the procedures for assigning effective dates for awards of benefits explained, the Board finds that these errors were harmless in this case. The Veteran's claim has been pending since 1999, and several Board remands and Supplemental Statements of the Case have explained to the Veteran what she needed to show in order to receive TDIU, as well as an increased rating for her low back disability. The Veteran demonstrated her knowledge thereof in an October 2008 letter in which she acknowledged that she understood why she did not meet the schedular criteria for a 100 percent rating but believed that her case should be evaluated under the provisions applicable to extraschedular ratings for TDIU. The Veteran or her attorney, also had 2 hearings before Veteran's Law Judges concerning the claims herein at which she or her representative had the opportunity to obtain additional clarification as to these matters if desired. Furthermore, the Veteran is represented by an attorney in these proceedings who may be presumed to know the applicable provisions of the law and to have communicated them to the Veteran. See Overton v. Nicholson, 20 Vet. App. 427, 438-439 (2006). In light of these circumstances, and the completeness of the record herein, the Board finds that any notice errors that occurred were harmless insofar as the Veteran was provided a full and fair opportunity to advance all of her contentions regarding her claimed entitlements to the benefits sought. In addition to its duties to provide various notices to claimants, VA also must make reasonable efforts to assist them in obtaining evidence necessary to substantiate their claims, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. In this case, the evidence of record includes service treatment records, VA treatment records, VA reports of examination, private treatment records, written statements and affidavits submitted by the Veteran, documents pertaining to the Veteran's disability retirement for her former occupation as a police officer, and the transcripts of two Board hearings, one of which involved testimony by the Veteran and the second of which involved an oral presentation by the Veteran's attorney together with the submission of additional exhibits. There is no indication that additional evidence material to this claim exists and was not obtained. The Board has also reviewed the instructions that were set forth in its prior remands and concludes that they were substantially complied with herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). See also Dyment v. West 13 Vet. App. 141, aff'd sub nom Dyment v. Principi, 287 F.3d 1377, 147 (2002) (remand not required under Stegall where Board's remand instructions were substantially complied with). II. Factual Background The Board reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In December 1999, the Veteran was terminated from her employment as a police officer due to various work related injuries. Prior to this time, the Veteran was diagnosed with various disabilities including posttraumatic stress disorder (PTSD), a neck injury with subluxation and pain, rheumatological causes of pain, spastic dysphonia, tennis elbow, tendonitis of the right wrist, bursitis, and inverted biceps jerks consistent with C5 radiculopathy but no overt signs of lumbar radiculopathy. A January 2000 regional medical panel noted the Veteran's diagnoses a spastic dysphonia, cervical strain, and low back strain by history. The panel noted that, in light of the spastic dysphonia which had persisted for over 10 years, the Veteran was permanently physically incapable of performing the duties of a police officer. Thereafter, she was placed on disability retirement. a) VA examinations The Veteran was first examined by VA in December 1999 with respect to her claims for higher evaluations for her neck and low back disabilities. At that time the Veteran had normal gait and erect posture. There were no abnormalities of the back noted and there was no paravertebral muscle spasm. The range of motion of the Veteran's lumbosacral spine demonstrated that she could achieve 70 degrees of forward flexion, 10 degrees of backwards extension, side flexion to 20 degrees to each side, and rotation to 20 degrees to each side. The limiting factor in her range of motion was pain. The Veteran's gait was normal and her posture was erect. She complained of weakness in her arms. The motor power of the feet and quadriceps muscles were within normal reflexes. The tendon reflexes at the knees and ankles were normal. The Veteran had normal sensation to touch is all the dermatomes of the legs and feet. The Veteran had a normal range of motion of her neck without pain. She had normal motor power in her elbow and girdle. The reflexes at the elbows and wrists were normal and she had normal sensation to touch in all of the dermatomes of the arms and hands. The examiner diagnosed low back pain without clinical evidence of motor or sensory nerve compression, and spastic dysphonia. The examiner noted that the latter disorder was "apparent" when the Veteran spoke. In January 2004, the Veteran was reexamined by VA. The Veteran again related her original injuries in service as well as numerous on the job injuries thereafter which also affected her neck and back. The Veteran reported that at times she was unable to bend or walk and required bed rest for a week at a time. She was also noted to have spastic dysphonia, fibromyalgia, tendinitis, and bursitis. The Veteran reported that she experienced burning pain in her neck, right shoulder, and entire back, numbness, and tingling in her arms and hands. She denied experiencing flare ups, but reported that she used a brace and cane when her back "goes out." She reported that she could walk for only 5 minutes but was able to perform her activities of daily living. An MRI of the spine showed various cervical spine abnormalities. The Veteran also was shown to have diffuse disk bulge at L2-L3 causing mild narrowing of the neuro foramina without canal stenosis. The bone density of the spine was normal. Upon examination, the Veteran's entire spine was tender. She had a mild decreased range of motion of the cervical spine as well as some straightening thereof. She had no paracervical or paralumbar spasm. Her motor strength was 5/5, her senses were intact to pin prick and vibration, her deep tendon reflexes were 3+, indicating that they were hyperactive without clonus, in her arms, knees, and ankes. She had an inverted radial on the right which was much greater than the left and an upper motor neuron sign in the right upper extremity but her toes were downgoing. She had a spastic voice. She had mild ataxia and could not stand with her eyes open and feet together. The examiner opined that neither the Veteran's neck nor low back pains were manifested by weakened movement. She did have excessive fatigability and incoordination but the examiner was uncertain that this was related to either the Veteran's neck or her low back disabilities. She did have pain on motion which the examiner attributed to the Veteran's neck and low back disabilities. The examiner opined that while he believed that the Veteran's pain could significantly limit her function during flare ups, she did not report any flare-ups but rather claimed to have pain all of the time. The examiner diagnosed various cervical spine disorders, and an L2-L3 disc bulge. The examiner did not find any neurological abnormalities at that time. He also noted the Veteran's spastic dysphonia was present but was unable to provide an opinion as to the etiology thereof. The Veteran was again reexamined by VA in December 2004. At that time, the Veteran reported that her low back "[went] out" approximately once per month and that, at those times, she was unable to move for more than 3 to 4 days. Then, she would return to her normal condition which was described as fairly constant low back pain, more severe on the left than the right, with radiation to her right buttock and thigh and leg into her left foot. The Veteran reported that she took various pain medications and did yoga to alleviate her back pain. She reported that she had a back brace which she wore if she planned to be more active, and a cane that she used when she was in a great deal of pain. She was not using either assistive device on the date of her examination. She denied any history of bowel or bladder complaints. The Veteran reported her cervical spine was fairly constantly painful at 5 out of 10 on the pain scale, but that it could get much worse "on a bad day." Upon examination of the cervical spine, the Veteran's range of motion was somewhat limited but the motions were not accompanied by increased discomfort. The lumbodorsal spine demonstrated a left lumbar right dorsal scoliosis in the range of 15 degrees, which was present even with repeated motions and was present as a bit of a right "rib hump" of 1 cm or less upon forward bending. The lumbar spine had a normal lordosis of 20 degrees. The Veteran could achieve 60 degrees of forward flexion and 15 degrees of extension. She could side bend 10 degrees to the right and 15 degrees to the left and could rotate to 45 degrees bilaterally but this motion was performed by the Veteran using her hips and upper spine and neck rather than her lumbar spine. None of the motions were painful and the range of motion did not decrease upon repetition. The Veteran reported that when her back "goes out" she is unable to bend or extend her low back at all and has greatly reduced strength. Neurologically, the Veteran had deep tendon reflexes of 2+ (normal) at the biceps and triceps, 1+ (hypoactive) at the brachial radialis, 3+ (hyperactive) at the knees, and 2+ at the ankles bilaterally. Plantar reflexes were downgoing. There were no pathologic reflexes in either the Veteran's upper or lower extremities. The Veteran's motor strength was intact to hand tests in the upper extremities. Hand and body tests in the lower extremities were accompanied be cogwheel rigidity, but a body test indicated that all muscles were in the 5/5 range in the lower extremities. The Veteran's senses were intact to pinprick and light touch in the cranial, cervical, and lumbar nerves. Radiographic studies were performed that showed abnormalities of the cervical spine, a disc protrusion with some deformity at the L2-L3 level of the lumbosacral spine, and at the midline a disc protrusion with some deformity of the spinal fluid and perhaps bilateral L3 nerve root pressure. The examiner diagnosed cervical spine spondylolisthesis without lysis, C5-C6; lumbar dorsal scoliosis; and lumbar disc protrusion with evidence by MRI of pressure of on the L3 nerve roots. The Veteran's spine was again reexamined by VA in June 2008. At that time, the Veteran reported having had major lumbar spinal surgery performed within the past year. The examiner indicated that the Veteran provided copies of private medical records confirming flare-ups of back pain associated with bilateral extremity weakness, ultimately resulting in a lumbar laminectomy at L4-L5 with bilateral L4 and L5 foraminotomies, excision of a lateral left-sided disk and fusion with K2 pedicle screws under fluoroscopic visualization and a local bone graft and allograft. The surgery was performed approximately one year prior to the examination. The Veteran reported that the surgery "completely changed her life" because she could now walk, which was previously impossible. The examiner noted that the Veteran initially injured her spine during her military service and then reinjured it during her work as a police officer, ultimately resulting in her removal from that position. Numerous diagnositic studies confirmed significant degenerative lumbar disc disease at L4- L5. The examiner noted that the Veteran was brought by ambulance to the VA hospital on two occasions when she could not get up. The Veteran reported that since the surgery, she still required pain medication but was "delighted" with her ability to walk and no longer required the use of a cane although ambulation was still somewhat difficult. She also reported occasional pain in the left leg down to her ankle. She was able to arise from her chair without assistance. While standing, she had satisfactory overall alignment of her entire cervical skeletal axis but some tenderness in the lower portion of the midline at approximately the lumbosacral level. She could flex her spine forward to only 40 degrees and had limited left and right lateral flexion. She was unable to rotate her spine to either side. Her deep tendon reflexes were intact in the patella and Achilles level on both sides and they appeared to be symmetrical and equal. While sitting and supine, her straight leg raising was limited to 50 degrees in each lower extremity. She had satisfactory great toe extension in both feet and diminished sensation over the lateral aspect of the left toe and ankle. The examiner diagnosed degenerative spondylolisthesis with spinal stenosis at L4-L5, status post (s/p) laminectomy L4-L5 with bilateral L4 and L5 foraminotomies and excision of lateral left sided disk materials, and s/p fusion at L4-L5 with K2 pedicle screws with local bone graft and allograft. A neurological examination was also performed in June 2008. The Veteran reported flare ups of her low back problems which where aggravated by the weather and sitting and that alleviating factors included stretching. She reported daily exacerbations which she treated by lying down. At those times, she reported pain and functional loss but no weakness. She complained of numbness in both of her feet, especially her big toes. She noted that from May to September of the prior year she was unable to walk and had to either stay in bed or crawl. The examiner noted that, upon examination, the Veteran had spastic dysphonia and scoliosis in the low thoracolumbar areas. Screws and rods in the lumbar area were visible on x- ray. Her motor strength was 5/5 except for food dorsiflexion which was 4/5 on the left. Her great toe dorsiflexion was 3/5 on the left and 4/5 on the right. Her sensations were intact to pin and vibration. Her deep tendon reflexes were 2+ and equal in the biceps and triceps. She had a positive Hoffman's bilaterally and inverted radials. She had 4+ knee jerks, 2+ ankle jerks, and downgoing toes. The examiner noted mild paraspinal muscle spasm and left sciatic notch tenderness. The examiner diagnosed spondylolisthesis with spondylolysis of L4-L5 s/p surgical intervention with L5 radiculopathy, left greater than right and spinal stenosis with ongoing neurological impairment. With regard to whether the Veteran experienced functional loss due to weakened movement, the examiner opined that she did insofar as her dorsiflexor on her left foot was week as were her great toe dorsiflexors, which might give her a bit of an antalgic gait. Further, he attributed some weakness and incoordination to the Veteran's scoliosis. With respect to the frequency and duration of the Veteran's incapacitating episodes over the last 12 months, the examiner noted that she was essentially bedridden for that period of time so she was incapacitated. With respect to neurological manifestations, the examiner noted radiation of pain from the Veteran's back into her great toe and "all the signs consistent with the L4-L5 level of abnormality." The examiner also opined that a patient who has sponylolysis and spondylolisthesis has it from birth, and that the symptoms could be brought on by any injury, such as the one that occurred in the service. He opined that the post service reinjury "just made [the Veteran's cervical and lumbar spine disabilities] worse." b) VA and Private Treatment records The Veteran submitted numerous private treatment records pertaining to both her service connected and nonservice connected disabilities. For example, a May 1999 letter from a private physician indicated that the Veteran had recurrent right brachialgia, recurrent low back pain that some times resulted in her taking bed rest for 3 or 4 days, right sided sciaticas, tennis elbow, tendonitis of the right wrist, right bursitis, right trochanteric bursitis, inverted biceps jerks consistent with C5 radiculopathy but no myleopathy, and no overt signs of lumbar radiculopathy. A November 1999 treatment note indicated that the Veteran experienced some tingling and numbness in her hands and spasm in her back, neck, and shoulders. Subluxation of a cervical vertebra was noted on x-ray and was deemed to be the most likely cause of her neck pain. The diagnoses at that time were spastic dysphonia, neck injury with subluxation and pain, and rheumatologic causes of pain. The Veteran's neck and low back disabilities were also evaluated by a private physician in August 2000. At that time, the Veteran related that she originally injured her neck and back during her service but subsequently reinjured these areas on multiple occasions while working as a police office. She complained of persistent radiating neck and low back pain. She further related that every 3 to 4 months her pain increased to the point where she was bedridden for 3 to 4 days. The Veteran denied any generalized weakness or any bowel or urinary problems. She reported that she had no problems with self care and driving except during flare ups. Her ability to shop was limited by her inability to life heavy objects. Family and friends assisted her in performing household tasks. She exercised by walking a quarter mile every day. The physician noted that the Veteran's other significant medical problems included PTSD, fibromyalgia, a prior right shoulder ligament injury and hypertic dysphoria. The Veteran is not service connected for any of these disabilities. The physician noted that generally the Veteran did not require any assistive devices, although she reported that she sometimes required a back brace or cane during flare-ups of her back pain. However, there were no signs of abnormal weight bearing and the Veteran did not then have limited function with regard to walking and standing. Upon examination, of the patient's lumbar spine, her posture was normal and there was no evidence of weakness or tenderness. The range of motion of her lumbar spine was 75 degrees of forward flexion, 25 degrees of extension, 40 degrees lateral flexion bilaterally, and 60 degrees of rotation bilaterally. The examiner interpreted the reduced range of motion as due to pain and weakness. The patient's motor, sensory, and reflex examinations of the lower extremities were all within normal limits. An x-ray showed degenerative changes and minimal scoliosis of the lumbar and thoracic spine. The physician diagnosed longstanding lumbosacral and neck sprain that initially began during her military service but which worsened after she was reinjured several times while working as a police officer. Chiropractic treatment records from 2000 through 2003 indicated that the Veteran complained of tightness in her low back, upper back, and neck, and occasionally the paraspinal muscles were noted to be spastic. In 2004, the Veteran's chiropractor wrote a letter in which he noted that the Veteran continued to be treated for her neck and low back disorders and that her symptoms of neck pain, right per scapular pain, and low back pain remained fairly constant throughout 2004. The chiropractor noted that the Veteran experienced some numbness in her upper extremities. Additional private treatment records show essentially similar findings and other treatment records pertain to the Veteran's nonservice connected fibromyalgia, carpal tunnel syndrome, psychiatric disorders, and various other non-service connected disabilities. Treatment records from the Veteran's primary care physician indicate that she was treated for problems including headaches, neck pain, shoulder pain, straightening of the cervical lordosis, cervical spine ligament injury, carpal tunnel syndrome, and scoliosis. In August 2007, this physician opined that the Veteran's constellation of various medical problems rendered her totally disabled and unable to work. On July 19, 2007 the Veteran was admitted for one day to the Emergency Department (ED) of the VA Medical Center (VAMC) at West Roxbury complaining of worsening left leg pain and weakness since 3 weeks prior which caused her difficulty ambulating as well as the onset of voiding delay. The Veteran described the symptoms as coming on suddenly while vacuuming. Thereafter, she needed to use a walker to ambulate. She was discharged the next day with a discharge diagnosis of L5 radiculopathy versus sciatic nerve neuropathy. A few days later she returned to the ED complaining of increased pain, was provided medication and was released. In September 2007, the Veteran underwent an L4-L5 lumbar laminectomy with bilateral L4 and L5 foraminotomies, excision of lateral left-sided disk material, and fusion L4-L5 with pedicle screws with a local bone graft and allograft. The indication for the procedure was noted as "debilitating leg pain secondary to spinal stenosis." c) Testimony by the Veteran The Veteran testified before a Member of the Board in July 2002. At that time, her attorney alleged that the Veteran had chronic pain, anxiety, and depression, and that the Veteran's anxiety and depression prevented her from working and that any work related stress also exacerbated the Veteran's service connected spastic dysphonia. The Veteran's attorney noted that the Veteran experienced persistent neck pain and lower back pain that was alleviated only by bed rest. She occasionally used a back brace or cane, and friends assisted her with her with her day to day chores. The Veteran alleged she also had difficulty sleeping due to her pain. The Veteran testified that she did experience muscle spasms in her back and that her back would "give out" and cause her to become bedridden approximately every other month. She denied that she had difficulty walking or balancing. In August 2007, the Veteran's attorney presented documentary evidence, largely consisting of documents discussed elsewhere herein, and argument on behalf of the Veteran at a hearing before the undersigned Veteran's Law Judge. The Veteran's attorney noted that the Veteran's spinal disability had recently worsened and that she was scheduled to soon undergo a lumbar laminectomy as a result. The Veteran's attorney alleged that the Veteran had "snapped her back" and, since then, was "basically unable to move". If the Veteran got out of bed, she had to crawl around her house. The attorney also noted the Veteran had various other disabilities that interfered with her employability including her service connected spastic dysphonia and her nonservice connected flat feet. In August 2007, the Veteran submitted an affidavit in which she alleged that she attempted to complete a vocational rehabilitation program that was offered by VA but was discharged from the program because he various disabilities, including her service connected back problems and her non- service connected carpal tunnel syndrome, rendered her incapable of reentering the workforce. The Veteran reiterated that every few months, her back pain increased to the point where she becomes bedridden for 3 or 4 days at a time. She related that, for the past year, her back pain increased in severity to the point that she became essentially housebound for the past year and bedridden for the past three months. She related that she could not drive for more than 10 to 20 miles without experiencing severe pain. She no longer performed household chores and utilized a walker if she needed to walk. In August 2008, the Veteran submitted a written statement in which she noted that her severe neck and back pain made it difficult to sit for extended periods of time or to walk for more than a few minutes at a time which impacts her employability. She noted that she has difficulty communicating, especially speaking on the phone, due to her spastic dysphonia. She also argued that her carpal tunnel syndrome and fibromyalgia make it difficult for her to work. She asked to be considered for an extraschedular TDIU rating because she has been unable to work since being medically retired from the police force. III. Increased Rating-Low Back Disability The Veteran contends that the symptoms of her low back disability are more severe than is contemplated by the 40 percent disability rating currently assigned thereto. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where entitlement to compensation for a service-connected disease or injury already has been established and entitlement to an increase in the disability rating is at issue, the present level of disability is of primary importance. See, e.g., Franciso v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the Veteran's low back disability is currently rated 40 percent disabling pursuant to Diagnostic Code 5293, intervertebral disk syndrome, as that code existed in 1999. This rating was granted in a September 2008 rating decision issued by the RO, effective the date of the Veteran's claim. VA's General Counsel has held that where a law of regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the Veteran. If the application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2009). Prior to the effective date of the change in the regulation, the Board may apply only the original version of the regulation. VAOGCPREC 3-2000. In this case, pursuant to the criteria in effect in November 1999, a 40 percent rating was assigned for severe, recurring attacks of intervertebral disk syndrome with little intermittent relief. A 60 percent rating was assigned for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological finding appropriate to the site of the diseased disc with little intermittent relief. See 38 C.F.R. § 4.71a, diagnostic code 5293 (1999). Effective September 23, 2002, the criteria for evaluating intervertebral disk syndrome changed. Pursuant to the new criteria, a 40 percent disability rating was applicable where the Veteran experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent rating was assigned where the Veteran experienced incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (2003). For purposes of applying the above criteria, an incapacitating episode was defined as "a period of acute signs and symptoms due to intervertebral disk syndrome that required bed rest prescribed by a physician and treatment by a physician." Alternatively, intervertebral disk syndrome could be evaluated by combining under 38 C.F.R. § 4.25 all chronic orthopedic and neurologic manifestations caused by the Veterans' intervertebral disk syndrome if this resulted in a higher disability rating. Under the criteria applicable to orthopedic manifestations of spinal disabilities, a 40 percent rating was available for severe limitation of motion of the lumbar spine. Separate ratings for neurological disabilities were available if the Veteran's spinal disorder resulted in paralysis, incomplete paralysis, neuritis, or neuralgia of an affected nerve. See 38 C.F.R. § 4.124a. Effective September 26, 2003, the criteria for spinal disabilities was again revised. While the formula for rating intervertebral disk syndrome based on incapacitating episodes remained unchanged, a "general criteria for rating disabilities of the spine" became applicable as an alternate method of rating spinal disabilities. Pursuant to the new rating criteria applicable to orthopedic manifestations of spinal disabilities, a 40 percent rating could be assigned for unfavorable ankylosis of the entire cervical spine, or forward flexion of the cervical spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating was applicable where there was unfavorable ankylosis of the entire spine, and a 100 percent rating was assigned where there was unfavorable ankylosis of the entire spine. These criteria apply 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. Additionally, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown , 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. In this case, the Board finds no evidence that the Veteran's symptoms met the criteria for a higher evaluation prior to July 19, 2007, when the Veteran was admitted to the VA hospital complaining of neurological impairment of her lower extremities. VA examinations in December 1999, January 2004, and December 2004 did not show symptoms that were more severe than contemplated by the 40 percent rating assigned for severe, recurring intervertebral disk syndrome with little intermittent relief. There was no evidence of persistent symptoms compatible with significant neurological impairment during this period; rather, the Veteran's visit to the VAMC ED is the first evidence of significant neurological impairment resulting from her back disorders. Moreover, application of the more recent rating criteria to the periods commencing with the enactment thereof would not yield higher ratings than 40 percent. Under the criteria for rating intervertebral disk syndrome based on incapacitating episodes, as noted above that terms is specifically defined by regulation as "a period of acute signs and symptoms requiring treatment by a physician and bed rest prescribed by a physician." 38 U.S.C.A. § 4.71a. Therefore, although the Board notes that the Veteran alleged that her back pain caused her to intermittently require bed rest to alleviate her pain, this did not meet the criteria for a higher rating based on incapacitating episodes as that term is defined by regulation. Moreover, it is unclear that, even if these episodes were accepted as physician directed bed rest, that they would have involved a total duration of at least 6 weeks per year during the period at issue. Similarly, the rating criteria premised upon limitation of motion to the spine would not yield a higher rating because a rating in excess of 40 percent required ankylosis of the thoracolumbar spine or the entire spine However, the evidence shows that the Veteran's disability significantly worsened on July 19, 2007 when she was admitted to the West Roxbury VAMC ED. At that time, she complained of the sudden onset of worsening left leg pain and weakness that became so severe that the Veteran was unable to walk without the assistance of a walker. She was then diagnosed with L5 radiculopathy versus sciatic nerve neuropathy. Only a few days later, she returned to the ED complaining of worsening pain which, giving the benefit of the doubt to the Veteran, left her essentially bedridden until spinal surgery could be performed in September 2007. Thereafter, the Veteran reported improvement, but still experienced difficulties walking, sitting, and neurological impairments consistent with the L4-L5 level of abnormality. The Board finds that these signs and symptoms most approximately a 60 percent rating pursuant to 38 C.F.R.§ 4.71a, diagnostic code 5293, for pronounced intervertebral disk syndrome. The Board considered the more recent diagnostic codes applicable to the Veteran's disabilities and concluded that they would not yield higher ratings. The highest rating available under the diagnostic code related to incapacitating episodes in also 60 percent, and application of this code may be less favorable to the Veteran since her recent surgery leaves it unclear whether she will continued to experience such incapacitating episodes after her surgery. Moreover, she does not have spinal ankylosis so the criteria for a higher rating based on limitation of motion for not apply herein. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. With respect to the period before July 19, 2007, the preponderance of the evidence was against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Therefore, the benefit of the doubt was resolved in favor of the Veteran as to this issue as of that date. III. TDIU The Veteran claims that she is unable to work due to her service connected disabilities. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Additionally, it "is the established policy of the [VA] that all Veterans who are unable to secure and follow a substantially gainful employment by reason of service connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the director, Compensation and Pension service, for extraschedular consideration all cases of Veterans who are unemployable by reason to service connected disabilities but who are unable to meet the [percentage standards set forth above.]" 38 C.F.R. § 4.16(b). The Veteran is service connected for a cervical spine disorder, rated 20 percent disabling, a low back disorder rated 40 percent disabling from the date of claim to July 19, 2007 and 60 percent disabling thereafter, and spastic dysphonia rated 0 percent disabling. Her combined disability rating was 50 percent prior to July 19, 2007 and is 70 percent commencing July 19, 2007. As noted above, the Veteran was terminated in 1999 from her position as a police officer after she experienced various on the job injuries, some of which exacerbated her preexisting service connected cervical spine and low back disorders. She also developed spastic dysphonia, presently 0 percent service connected, which made communication and utilizing the phone difficult. As a result, she was awarded a disability retirement from the police force. According to her testimony, affidavit, written statements, and argument submitted by her lawyer, the Veteran has not worked since that time. The Board notes that while the Veteran may have been let go from her job as a police officer due to her neck, back, and spastic dysphonia disabilities, this does not establish that she is unable to work in another setting despite these problems. Moreover, other disorders, non- service connected have also been implicated over the years as causing employment interference. As an initial matter, the Veteran did not meet the schedular criteria for TDIU until July 19, 2007. 38 C.F.R. § 4.16(a) Moreover, with respect to the claimant's contention that she should be entitled to an extraschedular TDIU rating , the evidence does not show that the Veteran was unable to work solely due to her service connected disabilities prior to July 20, 2007. While certain medical records reference the Veteran's inability to work, they do not attribute this solely to her cervical spine, low back, and spastic dysphonia disabilities. For example, in February 2003, the Veteran's clinical social worker opined that she was unable to perform phone work and computer data entry because her PTSD worsened her dysphonia, back and neck injuries, and arthritis. The Veteran is not service connected for either PTSD or arthritis. The Veteran submitted evidence that she was forced to leave her vocational rehabilitation program in 2006 after she developed carpal tunnel syndrome in both hands; again, the Veteran is not service connected for this. She is also not service connected for residuals of a right shoulder injury, bursitis, or flat feet, all of which she, her doctors, or her lawyers, have indicated contribute to her inability to work. Therefore, the evidence does not show that referral for extraschedular consideration is warranted for this period. 38 C.F.R. § 4.16(b). The evidence indicates that the Veteran's medical condition deteriorated beginning July 20, 2007, when she went to the VAMC ED complaining of an inability to walk unassisted. At her subsequent VA examination in 2008, the examiner noted that despite the Veteran's recent surgery she remained "unable to do much." An August 2007 letter from the Veteran's private physician as well as a an August 2008 letter from her chiropractor also indicate that the Veteran cannot work. While the Veteran's treatment records from her private physician show that she has various other medical disorders including toxoplasmosis, questionable fibromyalgia, hypothyroidism, oseteopnea, and possible carpal tunnel syndrome, it appears from the notes that the most severe of these problems relate to the Veteran's back and neck pain. The Veteran's chiropractor specifically opined that the Veteran's back, neck, and right shoulder pain prevent her from working. While the Veteran is not service connected for her right shoulder pain, the chiropractor noted various incidents of "severe and incapacitating" low back and left lower extremity pain. As indicated by the evidence previously discussed, the Veteran's pain in her left lower extremity has been assessed as radiculopathy from her low back. Additionally, while the Veteran reported benefits from her recent surgery, the VA examinations indicated that she still had difficulty walking and was "unable to do much." Neurological abnormalities persisted, and the Veteran still claimed to experience difficulty sitting and driving. Therefore, resolving all doubt in favor of the Veteran, TDIU is granted effective July 19, 2007. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 40 percent for a low back disorder is denied for the period prior to July 19, 2007. A rating of 60 percent, but no higher, for a low back disorder is granted for the period beginning July 19, 2007. TDIU is denied for the period prior to July 19, 2007. TDIU is granted for the period beginning July 19, 2007. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs