Citation Nr: 1007286 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-31 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Entitlement to an initial rating higher than 20 percent for a low back disability. 2. Entitlement to a separate rating for associated radiculopathy of the right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Elie Halpern, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Veteran's spouse ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1967 to January 1969. This appeal to the Board of Veterans' Appeals (Board) is from an August 2005 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC, which granted service connection for a low back disability and assigned an initial 20 percent rating retroactively effective to the date of filing, January 30, 1998. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). A June 2007 rating decision denied entitlement to a TDIU. The Veteran filed a timely Notice of Disagreement. Following the issuance of the Statement of the Case, the Veteran failed to perfect his appeal by filing a timely Substantive Appeal. Ordinarily, the Veteran's claim would no longer be on appeal. However based on the Court's holding in Rice v. Shinseki, --- F.3d --- (Fed. Cir. 2009) that a TDIU is a derivative claim to a claim for increased rating, and not a stand alone claim, the Veteran's TDIU claim remains on appeal until the increased rating claim is finally decided. Additional evidence was received after the issuance of the last supplemental statement of the case. However, the Veteran's representative subsequently submitted a waiver of RO consideration of this evidence. See 38 C.F.R. §§ 20.800, 20.1304(c) (2008). In September 2008 and May 2009, the Board remanded the Veteran's claim to the RO via the AMC. In June 2009, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ), commonly referred to as a Travel Board hearing. A transcript of this hearing is associated with the claims folder. After receiving a copy of the transcript, the Veteran submitted a short statement. As this statement was meant to supplement his hearing testimony, the Board does not find that it requires initial review by the RO. For reasons and bases that will be discussed, in this decision the Board is granting a higher combined 30 percent rating for the Veteran's low back disability with associated radiculopathy. Since, however, these are his only service- connected disabilities, he does not satisfy the threshold minimum rating requirements for consideration of a TDIU on a schedular basis, that is, under the provisions of 38 C.F.R. § 4.16(a) because in this circumstance (i.e., only one service-connected disability) he needs at least a 60 percent rating. The Veteran may still qualify for a TDIU, however, on an extra-schedular basis under § 4.16(b). See also 38 C.F.R. § 3.321(b)(1). But the Board is prohibited from assigning a TDIU on an extra-schedular basis in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). Instead, if, as here, the Board determines this special consideration is warranted, the Board must remand so the case may be referred to VA's Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service. Bowling v. Principi, 15 Vet. App. 1 (2001). FINDINGS OF FACT The Veteran's low back disability is manifested by motion in all directions with forward flexion to 35 degrees, including additional loss of motion on repetitive testing, no incapacitating episodes, and mild associated radiculopathy of the right lower extremity. CONCLUSION OF LAW 1. The criteria are not met for an initial rating higher than 20 percent for a low back disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code 5292, 5295 (effective prior to September 26, 2003), 5235-5243 (effective since September 26, 2003). 2. The criteria are met for a separate 10 percent rating for the Veteran's associated radiculopathy of the right lower extremity since September 23, 2002. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.71a, 4.124a , Diagnostic Code 5295 (applicable September 23, 2002 to September 26, 2003), 5235-5243 (effective since September 26, 2003), 8520 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Since the Veteran filed his claim for service connection in January 1998, Congress passed the Veterans Claims Assistance Act (VCAA) in November 2000. As provided by the VCAA, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). The VCAA notice requirements apply to all five elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit held that any error in a VCAA notice, concerning any element of a claim, is presumed prejudicial, and that VA then bears the burden of rebutting this presumption. However, the Supreme Court of the United States recently reversed the Federal Circuit's holding in Shinseki v. Sanders, 556 U. S. ___ (2009). The Supreme Court held that the Federal Circuit placed an "unreasonable evidentiary burden upon the VA..." by creating a presumption of prejudice with regard to deficient VCAA notice. (slip. op. at 11). The Supreme Court reiterated that "the party that 'seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.'" Id., citing Palmer v. Hoffman, 318 U. S. 109, 116 (1943); see also Tipton v. Socony Mobil Oil Co., 375 U. S. 34, 36 (1963) (per curiam); United States v. Borden Co., 347 U. S. 514, 516-517 (1954); cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 553 (1984); Market Street R. Co. v. Railroad Comm'n of Cal., 324 U. S. 548, 562 (1945) (finding error harmless "in the absence of any showing of . . . prejudice"). The Supreme Court emphasized that its holding did not address the lawfulness of the U.S. Court of Appeals for Veterans Claims' reliance on the premise that a deficiency with regard to informing a Veteran about what further information was necessary to substantiate his claims had a "natural effect" of prejudice, but deficiencies regarding what portions of evidence VA would obtain and what portions the Veteran must provide did not. (slip. op. at 3). Prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008) (reversed on other grounds in Vazquez-Flores v. Shinseki, --- F.3d ---- (Fed. Cir. 2009)) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post- decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, letters satisfying the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in June 2004, August 2006, and December 2006. These letters informed him of the evidence required to substantiate his initial, underlying claim for service connection (keeping in mind his claim arose in that context), since granted, as well as apprised him of his and VA's respective responsibilities in obtaining supporting evidence. In cases, as here, where the claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection, and this claim since has been granted and he has appealed a downstream issue such as the initial disability rating assigned, the underlying claim has been more than substantiated - it has been proven, thereby rendering § 5103(a) notice no longer required because the intended purpose of the notice has been fulfilled. See Goodwin v. Peake, 22 Vet. App. 128 (2008). In any event, here, VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), by also apprising the Veteran in the more recent August 2006 and December 2006 letters of the downstream disability rating and effective date elements of his claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). And since providing those additional Dingess notices in August 2006 and December 2006, the RO has gone back and readjudicated his claim in the February 2009 SSOC - including considering any additional evidence received in response to that additional notice. See again Mayfield IV and Prickett, supra. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained all relevant medical records that he and his representative identified. In addition, the Veteran was examined for VA compensation purposes in September 1998, February 2003, July 2004, and October 2008. Cumulatively, these examination reports are adequate for rating purposes with respect to his low back disability, insofar as determining the relative severity of this condition. 38 C.F.R. § 4.2. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board finds that the current record contains sufficient medical evidence with which to accurately evaluate his low back disability. The AMC also substantially complied with the Board's September 2008 and May 2009 remand directives in further developing the claim. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board finds that no further development is needed to meet the requirements of the VCAA or the Court. II. Entitlement to a Initial Rating Higher than 20 Percent for a Low Back Disability In August 2005, the AMC granted service connection for the Veteran's low back disability and assigned an initial 20 percent rating. He has appealed for a higher initial rating for this condition. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). For the reasons and bases discussed below, the Board finds that a rating higher than 20 percent is not warranted under the former or revised criteria for the Veteran's orthopedic manifestations. However, the Veteran does warrant a separate 10 percent rating for his associated radiculopathy of the right lower extremity since the date of the revision of the criteria, September 23, 2002. Disability ratings are determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The criteria for rating disabilities of the spine were amended on two occasions since the Veteran filed his claim in January 1998. The Board is required to consider his claim in light of both the former and revised standards to determine whether an increased rating for his low back disability is warranted. But VA's Office of General Counsel has determined that the amended rating criteria, if more favorable to the claim, can be applied only prospectively for periods from and after the effective date of the regulatory change. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g); and 38 C.F.R. § 3.114. The Veteran's low back disability was initially rated under the former DC 5293, for intervertebral disc syndrome (IVDS, i.e., disc disease). This DC provided for a 10 percent rating for recurring attacks of mild IVDS; a 20 percent rating for recurring attacks of moderate IVDS and a 40 percent rating for recurring attacks of severe IVDS with intermittent relief. A 60 percent rating required pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. See 38 C.F.R. § 4.71a, DC 5293 (1998). At the time the Veteran filed his claim, spine disabilities could also be rated under DC 5292 for limitation of motion of the lumbar spine. DC 5292 provided for a 10 percent rating for slight limitation of motion, a 20 percent rating for moderate limitation of motion, and a 40 percent rating for severe limitation of motion. The words "slight," "moderate," and "severe" are not defined in the Rating Schedule. However, the Rating Schedule provides some guidance by listing normal ranges of motion of the thoracolumbar spine for VA purposes to be 90 degrees of flexion, 30 degrees of extension, 30 degrees of lateral flexion, and 30 degrees of rotation. See 38 C.F.R. § 4.71a, Plate V. 68 Fed. Reg. 51,458 (Aug. 27, 2003). The orthopedic manifestations could also be rated under the DC 5295 for lumbosacral strain. The former DC 5295 provided for a 20 percent evaluation if there was muscle spasm on forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent evaluation was assigned if there was a severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). The first amendment pertaining to IVDS became effective on September 23, 2002. Under the revised criteria, IVDS is rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, DC 5293 (September 23, 2002). Under these revised criteria, a 10 percent rating requires incapacitating episodes having a total duration of at least at least one week but less than two weeks; a 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months and a 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS requiring bedrest and treatment "prescribed by a physician." Id. As to the determination of the neurological manifestations, DC 8520 pertains to paralysis of the sciatic nerve. Under this provision, mild incomplete paralysis warrants a 10 percent disability evaluation; moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent disability evaluation; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability evaluation. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. The second amendment, effective September 26, 2003, involved a revision of the portion of the rating schedule to which diseases and injuries of the spine are evaluated. In particular, DC 5293 for rating IVDS was changed to DC 5243, which provides that ratings are now based on either the General Rating Formula for Diseases and Injuries of the Spine (effective September 26, 2003), or on the basis of incapacitating episodes (the criteria for which remain unchanged from September 23, 2002), whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is between 120 and 235 degrees, or where muscle spasm or guarding does not result in an abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, DC 5237. A 20 percent rating is assigned where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned if evidence shows forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a 50 percent rating if the evidence shows unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating if the evidence shows unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Applying these criteria to the facts of this case, the Board finds that the Veteran's low back disability has not met either the former or revised standards for a rating higher than 20 percent for IVDS since January 30, 1998, the date his claim for service connection was filed. However in light of the fact that the Veteran experiences radiculopathy to his right lower extremity, the Board finds that the Veteran's condition would warrant a higher combined rating if his orthopedic and neurological manifestations were rated separately. See 38 C.F.R. § 4.71a, 4.124a, DC 5292, 5235- 5243, 8520; see also Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). The Board finds that the Veteran's condition warrants 20 percent rating for the orthopedic manifestations and a separate 10 percent rating for the neurological manifestations since the effective date of the regulatory change, September 23, 2002. The medical evidence for consideration includes three VA examination reports, a QTC examination, two private examinations by T.L.G., M.D., and the Veteran and his spouse's testimony at the June 2009 Travel Board Hearing. The report of the September 1998 VA examination shows a diagnosis of chronic low back strain with intermittent right- sided L4 radiculopathy and osteoarthritis and degenerative joint disease. The Veteran had flexion to 45 degrees, extension to 30 degrees, lateral flexion to 5 degrees bilaterally, and lateral rotation to 45 degrees bilaterally. The examiner noted moderate tenderness on palpation on the right side of the low back. He also noted paraspinous muscle spasm on forward bending. The examiner noted no weakness or atrophy in the lower extremities. The Veteran reported shooting pain in the low back lasting five to ten minutes and relieved by lying down. A February 2003 VA examination found that the Veteran walked with a moderate right limp but the Veteran attributed it to a recent right heel injury. The Veteran did not use an assistive device. The examiner noted tenderness along the midline of the lumbar and thoracic spine but no paraspinous tenderness or sciatic notch tenderness in either buttock. The examiner found forward flexion to 90 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, right lateral rotation to 85 degrees and left lateral rotation to 75 degrees. The examiner noted that motion was further limited by pain, weakness and fatigability on repetitive testing by 5 degrees on back extension and lateral rotation. The examiner noted negative straight leg raises and noted normal motor strength, muscle tone and reflexes in the lower extremities. The examiner attributed his findings of numbness in the right thigh as secondary to an iliac bone graft procedure. The examiner indicated a moderate functional impairment due to the Veteran's low back condition. A July 2004 VA examination found no history of incapacitating episodes. The Veteran reported daily flare-ups of about 30 minutes relieved by lying down. The examiner found a slow gait but no limp. The Veteran had a walking stick but did not require it to walk. The Veteran had flexion to 85 degrees, extension to 10 degrees, lateral flexion to 25 degrees bilaterally, and lateral rotation to 40 degrees bilaterally. The examiner noted that range of motion was limited by pain, weakness and fatigability on repetitive use by 10 degrees of extension and 5 degrees in all other directions. The examiner noted no sciatic notch tenderness in either buttock and negative straight leg raises bilaterally. The examiner noted normal muscle strength in the lower extremities but diminished knee reflexes and absent ankle reflexes. The examiner noted normal sensation in the back and lower extremities. X-rays showed normal alignment of the lumbosacral spine. A private examination by Dr. T.L.G. dated October 2005 noted that the Veteran had an antalgic gait and abnormal posture- flat lumbar lordosis and mild lumbar scoliosis to the left side. This examination used inclinometer testing which the Board is unable to convert to the goniometric testing used in the rating criteria. The examiner noted positive straight leg raises bilaterally. He found normal strength and reflexes in both lower extremities but sensory loss in the right thigh consistent with the surgical scars from the Veteran's iliac bone graft surgery. A September 2008 QTC examination found no incapacitating episodes. The examiner noted that the Veteran's gait and posture were within normal limits and he required no assistive device to walk or stand. The Veteran's flexion was to 60 degrees, extension to 25 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 30 degrees all with pain at the end of the motion. The examiner noted that the Veteran's range of motion was limited by pain, weakness and lack of endurance on repetitive use but not to a measurable degree. The Veteran complained of pain radiating down his right leg. The examiner noted positive straight leg raises on the right but normal sensation, motor function and reflexes in the right lower extremity. A later March 2009 examination by Dr. T.L.G. found a short shuffling gait and poor posture. The Veteran was using an assistive device. The Veteran's flexion was to 35 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, lateral rotation to 25 degrees bilaterally. The examiner noted paravertebral muscle spasm on the right side. The Veteran had positive straight leg raising on the right at 50 degrees. The Veteran also had sensory loss in the right lower extremity in a long-stocking distribution. At the June 2009 Travel Board hearing, the Veteran testified that he had pain radiating down the left side of his right leg. The Veteran testified that he had to lie down 15-20 minutes a couple times a day to relieve the pain in his low back and right leg. The Veteran's spouse confirmed the Veteran's symptoms, although she stated that he laid down five to six times a day. The Veteran stated that he stopped working in 1998 due to his heart condition. In October 2009, the Veteran submitted a short statement supplementing his hearing testimony, the Veteran and his wife stated that they had underestimated how many times a day he needs to lie down and that on average he lies down eight times a day and some days he does not leave his bed at all. A. Criteria in Effect Prior to September 23, 2002 Neither of these examination reports mentioned suggest the Veteran's low back disability is manifested by "severe" IVDS, as required for a higher 40 percent rating under the former DC 5293. The determinative issue is one of degree, considering the relative frequency and severity of his symptoms. See 38 C.F.R. §§ 4.2, 4.6. The Veteran reported no more than minor flare-ups of the condition and had not indicated doctor prescribed bedrest for his condition. The examinations showed some symptoms of mild sciatic neuropathy - some pain and decreased sensation in the right lower extremity and a low back muscle spasm. Although the Veteran reported episodes of severe pain lasting 15 to 30 minutes, the objective findings did not account for more than moderate symptoms of IVDS. In sum, these examination reports do not show the Veteran's low back disability is manifested by severe IVDS, thereby providing evidence against the claim for a rating at this higher 40 percent level. None of the examinations showed more than moderate limitation of motion, so no more than a 20 percent rating under the former DC 5292. At all examinations the Veteran had range of motion in all directions, albeit less than full range of motion. See 38 C.F.R. § 4.71a, Plate V. While the Veteran consistently had decreased extension, he had full range of motion or greater in the directions of lateral flexion and lateral rotation at many of the examinations and full range of flexion at the February 2003 and July 2004 examinations. Without more significant limitations of motion, his limitation of motion would not be considered severe. The Board also finds that a disability rating higher than 20 percent is not warranted based on functional loss due to pain, weakness, fatigability, or incoordination of the lumbar spine. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). Although the Veteran complained of low back pain during all examinations, the examiners did not observe physical findings that would account for or otherwise explain the level of pain that he had described. At two examinations, the examiners stated that the motion of his low back was further limited on repetitive use by pain, weakness and fatigability. However, the September 2008 examiner stated that the limitation was not to a measurable degree and the July 2004 examiner stated that there was a 10 degree loss of extension and 5 degree loss in all other directions. Considering the Veteran's range of motion was nearly full at the July 2004, there is no basis to assign a rating higher than 20 percent for additional limitation of motion due to pain, weakness and fatigability. In light of these findings, there are simply no grounds to assign a disability rating higher than 20 percent based on these factors. The Veteran does not warrant a higher 40 percent rating under DC 5295 either. None of the examinations indicated severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. There was only an indication of abnormal posture at one examination in October 2005, which was described as mild lumbar scoliosis to the left side, so not listing of the whole spine. The Veteran's range of motion was not markedly limited as he had greater than 30 degrees of flexion at all examinations and full range of motion at some. The Veteran also had lateral motion at all examinations and his joint spaces were preserved. B. Criteria in Effect from September 23, 2002 to September 26, 2003 With respect to the revised rating criteria for IVDS, effective September 23, 2002, the Board notes that the evidence does not establish the occurrence of any incapacitating episodes - much less of sufficient duration and frequency as to warrant assigning a higher rating. At all examinations, the Veteran described low back pain that limited his activities and at times required him to lie down for up to an hour to relieve the symptoms. However, he did not indicate or imply that he had required any bedrest in the last year because of his low back disability or that a doctor had prescribed him bedrest in the past year. In his October 2005 report, Dr. T.L.G. attempted to aggregate the Veteran's 15 to 20 minutes of recumbency per day to 11 days per year. However, the Board notes that the unit of measurement in the regulation is "weeks." See 38 C.F.R. § 4.71a, DC 5243. Therefore, the Veteran does not have the 2 to 4 weeks of prescribed bedrest in the past year needed for his current 20 percent rating. Under DC 5293, however, the Board must also consider whether separate ratings for the chronic orthopedic and neurologic manifestations of the Veteran's low back disability, when combined under 38 C.F.R. § 4.25 with evaluations for all other disabilities, result in a higher combined evaluation. As discussed above, the Veteran's orthopedic manifestations could be rated as moderate limitation of motion under DC 5292. And as for his neurological manifestations, there are objective findings of mild radiculopathy/sciatic neuropathy of the right lower extremity. The September 1998 examination diagnosed right-sided L4 radiculopathy. At the September 1998 and March 2009 examinations, the examiners noted muscle spasms on the right side of the low back on forward bending, and at the October 2005, September 2008, and March 2009 examinations, the examiners all found positive straight leg raises on the right. All examinations found normal motor strength and function in the lower extremities, although the July 2004 examination found absent ankle jerks. Diminished sensation in the Veteran's right thigh was also noted on several occasions but attributed to an iliac bone graft surgery. Because the findings are largely sensory and do not result in decreased strength or function of the right lower extremity, these findings are consistent with a mild neurological impairment and warrants no more than a separate 10 percent rating for the associated radiculopathy of the right lower extremity under DC 8520. C. Criteria in Effect since September 26, 2003 Lastly, the Board finds that a disability rating in excess of 20 percent is not warranted for the Veteran's low back disability under the General Rating Formula for Diseases and Injuries of the Spine. At all examinations the Veteran had motion in every direction. His most severe limitation of motion is noted at the March 2009 examination in which his flexion of 35 degrees was still greater than the 30-degree limitation necessary for the higher 40 percent rating. Hence, there is no basis to assign a higher 40 percent rating under the new criteria. Additionally as discussed above, the only examinations evidencing further limitation of motion on repetitive use showed range of motion far in excess of his currently assigned 20 percent rating, flexion to 60 and 85 degrees. As these ranges of motion findings far exceed that necessary for his current 20 percent rating even when factoring in additional limitation on repetitive use , they can not be used to support a higher orthopedic rating under Deluca. For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating higher than 20 percent for the orthopedic manifestations of his low back disability. This is true since the grant of service connection, under either the old or new criteria, so there is no basis to "stage" the ratings under Fenderson. The Board finds, however, that the Veteran's condition does warrant a separate 10 percent rating for the associated radiculopathy of the right lower extremity since the effective date of the regulatory change, September 23, 2002. See VAOPGCPREC 3- 2000; 38 U.S.C.A. § 5110(g); and 38 C.F.R. § 3.114. III. TDIU The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or impairment caused by any disabilities that are not service connected. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of at least 70 percent. 38 C.F.R. § 4.16(a). Based on the above decision, the Veteran has a 20 percent rating for a low back disability, and a 10 percent rating for the associated radiculopathy of the right lower extremity. His combined disability rating is 30 percent. 38 C.F.R. § 4.25. Therefore, he does not satisfy the threshold minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU on a schedular basis. As a result of this decision, the Veteran now has a higher combined 30 percent rating for his low back disability and associated radiculopathy. But he has no other service- connected disabilities. Therefore, he does not satisfy the threshold minimum percentage rating requirements of § 4.16(a) for schedular consideration of a TDIU because his low back disability needs to be rated as at least 60-percent disabling. ORDER The claim for an initial rating higher than 20 percent for a low back disability on a schedular basis is denied. A separate 10 percent rating for the associated radiculopathy is granted since September 23, 2002. His claim for a TDIU, however, is denied (to the extent predicated on a schedular basis under 38 C.F.R. § 4.16(a)). REMAND The record shows the Veteran has been unemployed since 1998. At that time the Veteran was unable to continuing working due to a heart condition. See SSA's July 1998 disability determination and the Veteran's testimony at the June 2009 Travel Board Hearing. The Veteran now claims that his low back disability precludes him from engaging in any type of substantially gainful employment. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. See also Thun v. Peake, 22 Vet. App. 111 (2008). Additionally, it is possible to receive a TDIU on an extra- schedular basis, under 38 C.F.R. §§ 3.321(b)(1) and 4.16(b), if it is determined the Veteran is incapable of obtaining and maintaining substantially gainful employment on account of his service-connected disability, even if, as here, the rating for the disability does not meet the threshold minimum rating requirements of § 4.16(a). However, the Board may not assign an extra-schedular rating in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008). Accordingly, this case is REMANDED for the following development and consideration: 1. Refer this case to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation for the Veteran's service- connected low back disability in accordance with 38 C.F.R. § 3.321 and extra-schedular consideration of a TDIU in accordance with § 4.16(b). 2. If the disposition is unfavorable, provide the Veteran and his representative a supplemental statement of the case and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining issue. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs