Citation Nr: 1018335 Decision Date: 05/18/10 Archive Date: 06/04/10 DOCKET NO. 05-10 685A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable initial disability rating percent for service-connected spondylolysis, L5, prior to July 22, 2009. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected spondylolysis, L5, from July 22, 2009. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ann L. Kreske, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1997 to May 2004. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which, inter alia, granted service connection for spondylolysis, L5, and assigned a noncompensable evaluation, effective May 8, 2004. In an October 2009 rating decision, the RO increased the evaluation to 10 percent, effective July 22, 2009. As this rating does not represent the highest possible benefit, this issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2006, as support for his claim, the Veteran provided testimony at a hearing before RO personnel. The transcript of the hearing has been associated with the claims file and reviewed. FINDINGS OF FACT 1. Prior to January 9, 2007, the Veteran's service-connected spondylolysis, L5, was manifested by forward flexion of the thoracolumbar spine varying from 4 degrees to 90 degrees, without muscle spasm, guarding, but with mild local tenderness, not resulting in abnormal gait or abnormal spinal contour or vertebral body fracture with loss of 50 percent or more of the height; although the Veteran complained of pain with virtually all motion of the lumbar spine, objective findings conflicted with the Veteran's subjective complaints. 2. From January 9, 2007, the Veteran's service-connected spondylolysis, L5, was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees, without muscle spasm or guarding, but with mild local tenderness, not severe enough to result in an abnormal gait or abnormal spinal contour, by complaints of pain with virtually all motion of the lumbar spine, and the Veteran requested and was provided with a back brace and a TENS (transcutaneous electrical nerve stimulation) unit. 3. From December 12, 2008, the Veteran's complaints of pain with virtually all motion of the lumbar spine were accompanied by additional objective findings, although the Veteran continued to manifest actual range of motion of the lumbar spine up to 90 degrees of forward flexion. CONCLUSIONS OF LAW 1. Prior to January 9, 2007, the criteria for a compensable disability rating have not been met for spondylolysis, L5. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5299-5239 (2009). 2. From January 9, 2007 through December 11, 2008, the criteria for a 10 percent initial disability rating, but no higher evaluation, have been met for spondylolysis, L5. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5299- 5239 (2009). 3. From December 12, 2008, the criteria for a 20 percent initial disability rating, but no higher evaluation, have been met for spondylolysis, L5. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5299-5239 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) specifies VA's 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, 3.326(a) (2009). Review of the claims folder reveals compliance with the VCAA, supra. The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in July 2004 and October 2005. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claim, (2) informing the Veteran about the information and evidence the VA would seek to provide, and (3) informing the Veteran about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Thus, the Board finds that the RO has provided all notice required by the VCAA as to the three elements of notice. 38 U.S.C.A. § 5103(a). See Pelegrini II, Quartuccio, supra. Here, the Veteran is challenging an initial evaluation assigned following the grant of service connection for a low back disorder. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that an appellant's filing of a notice of disagreement (NOD) regarding an initial disability rating or effective date, such as the case here, does not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Indeed, the Court has determined that to hold that 38 U.S.C.A. § 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render 38 U.S.C.A. §§ 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess, supra. The Court then clarified its holding in Dingess, indicating that the holding was limited to situations where service connection was granted and the disability rating and effective date were assigned prior to the November 9, 2000 enactment of the VCAA. If, as here, this did not occur until after that date, the Veteran is entitled to pre-decisional notice concerning all elements of his claim, including the downstream disability rating and effective date elements. Moreover, if he did not receive this notice, for whatever reason, it is VA's obligation to explain why the lack of notice is not prejudicial - i.e., harmless - error. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Finally, the Court most recently clarified in Goodwin v. Peake, 22 Vet. App. 128, 137 (2008), that where a service connection claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream initial rating and effective date elements. The Court added that its decision was consistent with its prior decisions in Dingess, Dunlap, and Sanders, supra. In this regard, the Court emphasized its holding in Dingess that "once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. Thereafter, once a NOD has been filed, only the notice requirements for rating decisions and SOCs described within 38 U.S.C.A. §§ 5104 and 7105 control as to further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements ...." Id. In this case, prior to the grant of service connection for low back disability, no notice was provided regarding criteria for assignment of a disability rating and an effective date. Dingess, supra. However, after providing VCAA notice in July 2004 and adjudicating the case in a November 2004 rating decision, the RO readjudicated the claim, issuing an April 2005 SOC and SSOCs dated in October 2005, January 2007 and October 2009. In short, the content error here does not affect the essential fairness of adjudication of this case, and is not prejudicial, given the multiple readjudications. In any event, the Veteran has never alleged how any content error prevented him from meaningfully participating in the adjudication of his claims. As such, the Veteran has not established prejudicial error in the content of VCAA notice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009). Additionally, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has been provided with several examinations as to his low back disability, including in 2004, 2005, and 2009. VA treatment records and private treatment records also have been obtained. The Veteran has not indicated that there are any other available records or alternative records that might be relevant to the claim addressed on the merits in this decision. Furthermore, the Veteran has provided several statements on his behalf. He also provided testimony before RO personnel in February 2006. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Appellate review may proceed. Analysis - Initial Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficiently characteristic to identify the disease and the resulting disability, and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For claims involving an initial rating assignment, as the case here, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection (here, May 8, 2004) until the present. This could result in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of the Veteran's award when his disability has been more severe than at others. See again Fenderson, 12 Vet. App. at 125-26. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Historically, the Veteran's service treatment records reflect frequent and continuous complaints of low back pain and leg pain in 2003 while in service. A May 2003 X-ray of his lumbar spine revealed a question of spondylolysis at L5-S1; otherwise, results were unremarkable. However, a July 2003 X-ray of the lumbar spine revealed no spondylolysis. Here, the Veteran seeks an initial compensable disability rating for his spondylolysis, L5, which was rated as noncompensable effective May 8, 2004, and is currently rated as 10 percent, effective July 22, 2009. The disability is rated by analogy under Diagnostic Code 5239 (spondylolisthesis or segment instability). 38 C.F.R. § 4.71a. Disabilities may be rated by analogy to a closely related disease where the functions affected and the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. The Board notes that the criteria for spine disorders were amended in September 2002 and September 2003. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002); 68 Fed. Reg. 51,454 (August 27, 2003). In this case, the Veteran's claim was received in May 2004, subsequent to the final amendments. Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is applicable. Under the current version of the Rating Schedule, all spine disorders, including Diagnostic Code 5237 (lumbosacral or cervical strain) and with the exception of Diagnostic Code 5243 (intervertebral disc syndrome), are rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine (General Formula), which rates spine disorders as follows: 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: A 10 percent rating requires 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. A 20 percent rating requires 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. 38 C.F.R. § 4.71a, Diagnostic Code 5239. 1. Initial rating prior to July 21, 2009 a. Prior to January 9, 2007 An August 2004 VA examination report shows that the Veteran could stand erect without pelvic obliquity or scoliosis. He had full range of motion of the lumbar spine with complaints of pain at the extremes of motion in all planes. His flexion was to 90 degrees, his extension to 30 degrees, right and left lateral bending was to 30 degrees and right and left rotation was to 30 degrees. Repetitive motion did not change his range or symptoms. Axial compression caused low back pain and pseudo-rotation, which involved no motion or stress to the back, and also brought forth complaints of low back pain. The examiner noted that these were non-anatomical (Waddell) signs. Deep tendon reflexes were active and equal in the knees and ankles bilaterally. There was no weakness or sensory loss in either lower extremity detected. X-rays revealed a spondylolysis of L5. There was no subluxation of L5 on S1, and no narrowing of the disc, osteophyte formation, or other deformities in the lumbar area. The diagnosis was spondylolysis, L5. The examiner noted that he could not detect any objective evidence of weakness, incoordination, fatigability, or loss of motion due to the above. A January 2005 letter to the Veteran from a VA examiner notified him that he had a pars defect, also known as spondylolysis. Even with consideration of the Veteran's complaints of pain, the Veteran's range of motion to 90 degrees of flexion, did not meet the criteria for a 10 percent disability rating. In particular, the Board notes that the examination report clearly reflects that repetitive motion did not increase the Veteran's symptoms or decrease his range of motion. Moreover, the examiner explained that the Veteran's complaints were non-anatomic, that is, were not related to the service-connected lumbar disability. In particular, axial compression, which the examiner explained involved no motion or stress to the back, elicited subjective complaints of pain. Thus, the Veteran's complaints of pain on flexion do not establish that he had pain on flexion at the part of the range of flexion above 60 degrees, which would warrant a 10 percent evaluation, or at the part of the range above 30 degrees, which would warrant a 20 percent evaluation. The evidence is unfavorable to a compensable evaluation. February 2005 private medical records showed that the Veteran was in a motor vehicle accident. The Veteran complained of low back pain. Upon examination, there was tenderness of the left lumbosacral area and no spinous tenderness. He was diagnosed with strain of the back, and was discharged in stable condition. February 2005 VA medical records disclose that there was no point tenderness and no paraspinous spasm. March 2005 through June 2005 private medical record showed treatment from S.E.G., D.C., with the Veteran reporting severe pain in his lower back. Upon palpation, he had severe hypertonicity of the lumbar paraspinal muscles bilaterally. May 2005 private medical records disclose that the Veteran continued to complain of back pain following a February 2005 motor vehicle accident. On standing forward bend, he could get to his mid-calves. He had limited extension and bilateral rotation. He was tender in the left lumbosacral area. A contemporaneous magnetic resonance imaging (MRI) study showed that the Veteran had a mild degenerative disc at L4-L5 and a moderate degenerative disc at L5-S1. A May 2005 VA medical record showed that the Veteran had limited range of motion of his back, negative tenderness, and positive straight leg raising. He was diagnosed with chronic low back pain with paresthesias. The Veteran indicated that his pain was associated with tingling and numbness to the legs, with no weakness. An August 2005 VA medical record showed that the Veteran was a candidate for lumbar stabilization surgery. In contrast, the examiner who conducted November 2005 VA examination noted that the Veteran did not describe true sciatic symptoms or anything of a dermatomal nature. The examiner noted that the Veteran exhibited normal motions while getting dressed and undressed, and did not seem to have any difficulty. The Veteran walked with a normal gait, but then seemed to have difficulty when asked to heel-toe walk on the left side. He complained of low back pain to light touch of the skin in the lower lumbar area and of low back pain with gentle pressure to the top of his head and gentle manipulation of the left shoulder. There was no list of his spine or palpable spasm of the musculature. At the November 2005 VA examination, the Veteran's range of motion was forward flexion to 4 degrees, extension to 12 degrees, left lateral flexion to 12 degrees, right lateral flexion to 10 degrees, and left and right lateral rotation to 10 degrees each. The Veteran complained of pain at the end point of each of these motions. There was no change with repetitive motion. He also complained of back pain while rotating strictly from the hip. Deep tendon reflexes were 2+ knee jerk and ankle jerk. He complained of back pain with straight leg raising to 30 degrees. He complained of back pain with the hips and knees flexed at 90 degrees, and of low back pain with Patrick's test, a test for hip disease. The examiner noted that, with the Veteran in the sitting position and with distraction, he was able to straight leg raise to 80 degrees bilaterally without apparent discomfort. There was no deformity of the spine or lower extremities, and no evidence of muscle wasting. The examiner again noted that the Veteran had a 5/5 positive Waddell test as well as a false test involving gentle manipulation of the shoulder, stating that this also caused low back pain. X-rays revealed a spondylolysis of L5-S1 without slippage; in other words, no spondylolisthesis. The examiner noted questionable slight narrowing of the L5-S1 disc space. The examiner diagnosed unilateral spondylolysis at L5. The examiner indicated that he could find no objective evidence that the Veteran had any physical impairment to his back. The examiner further noted that the Veteran had some very strong inorganic signs, which suggested to the examiner that something other than organic disease was the cause of the rather severe subjective symptoms that were elicited. The examiner indicated that, during a flare-up, the Veteran could have further limitations of motion and amount of pain, but the extent of the increased limitation could not be estimated without resorting to speculation. The examiner's conclusion that he could find no objective evidence that the Veteran had any physical impairment to his back conflicts with the disability picture raised by the Veteran's limitation of motion to 4 degrees of forward flexion on testing of motion. The Veteran's severe limitation of motion contrasts with the examiner's notation that the Veteran had normal back motion when getting dressed and undressed. The Veteran's complaints of lumbar pain with pressure to the top of his head and with manipulation to the shoulder were among the findings that the examiner apparently considered in the conclusion that there was no objective evidence of physical impairment of the lumbosacral spine. The examiner's conclusions, including the finding that there was no objective evidence of weakness, incoordination, fatigue, or lack of endurance, strongly contrast with the Veteran's apparent limitation of forward flexion to 4 degrees. The Veteran walked with a normal gait and there was no list of his spine or palpable spasm of the musculature. He also complained of low back pain with Patrick's test, which was primarily a test for hip disease. With the Veteran in the sitting position and with distraction, he was able to straight leg raise to 80 degrees bilaterally without apparent discomfort, in contrast to the complaint of pain at 30 degrees when not distracted. The examiner noted that the Veteran had a 5/5 positive Waddell test as well as a false test involving gentle manipulation of the shoulder. The examiner indicated that he could find no objective evidence that the Veteran had any physical impairment to his back and that he had some very strong inorganic signs that suggested to the examiner that something other than organic disease was the cause of his rather severe subjective symptoms. As such, the Board finds that the results of this examination, specifically the range of motion measurements which disclose that the Veteran had essentially no range of motion without pain, are not given any probative value for rating purposes. Based upon the examiner's observations, it appears that the Veteran's assertions with regard to his back pain were not credible. The Board finds that consideration of the Veteran's subjective complaints of pain does not warrant a compensable evaluation during this period. Moreover, since the Veteran's complaints of pain remained essentially unchanged from February 2005 though November 2005, the Board finds that it is not appropriate to assign a compensable evaluation during any portion of the period from August 2004 though November 2005. A February 2006 VA medical record revealed that the Veteran complained of chronic back pain that had flared over the previous week, with pain to the left leg. The Veteran had no external abnormalities and mild tenderness over the left lower back. The assessment was lumbago secondary to chronic spine instability. The examiner noted that the Veteran had a standing appointment with neurosurgery to provide repair of the pars defect when the Veteran desired. September 2006 and October 2006 VA medical records indicated that the Veteran was seen for back pain, which had flared up. He was given medication. His back had normal symmetry and no point tenderness. Straight leg raise was negative, the motor strength was 5/5 in both lower extremities, and deep tendon reflexes were 2+ and equal. The examiner noted that sensation was reduced in the left leg from a previous injury, an apparent reference to the Veteran's left Achilles tendon repair, but was otherwise normal. This evidence establishes that, although the Veteran was still considered a candidate for repair of the pars defect to prevent spondylolisthesis, no slippage had yet occurred at the pars defect and there were no neurologic abnormalities due to the defect. (b). From January 9, 2007 through December 11, 2008 A January 9, 2007 VA medical record showed that the Veteran indicated that his pain was an aching pain that became sharp with activity, and radiated down both legs to the calf. Upon examination, the Veteran had muscle strength of 5/5 in the lower extremities and ambulation within normal limits. The Veteran was limited in extension and flexion, and extension produced pain at axial lowering. The straight leg test was positive bilaterally, but Lasegue and Patrick tests were negative. There was moderate tenderness bilaterally between L3-L4 and L4-L5 levels. The examiner noted that the Veteran had an X-ray done in August 2005, which showed that there was a narrowing of disc space noted at L5-S1. The impression was lumbar facet arthropathy involving bilateral L4-L5, L5-S1 level and pars interarticularis effect involving the L5 level. This examination report reflects that the examiner determined that there was an organic basis for the Veteran's complaints of pain. The provider increased the Veteran's narcotic analgesic (Tramadol), and again advised the Veteran that he was a candidate for surgical correction. The Board finds that a compensable, 10 percent evaluation is warranted from January 9, 2007, based on the objective indicators of pain due to the service-connected disability. A June 2007 VA medical record shows that the Veteran was provided with a back brace. VA medical records from June 2007 through December 2008 show that the Veteran was seen for lumbar spine pain, which the Veteran reported was mostly the aching type and radiated down both legs. The Veteran also complained of pain radiating to the knees during this period. The diagnosis was status post lumbar facet arthropathy involving bilateral L3 to S1 and pars interarticularis defect involving L5-S1. The providers changed the Veteran's narcotic analgesic several times. The Veteran continued to decline epidural injections or other treatment modalities. The Veteran requested and was provided a back brace and a TENS unit. The records from January 2007 through December 2008 disclose no objective change in the severity of impairment due to service-connected lumbar disability. In his February 2007 substantive appeal, the Veteran reported that he was experiencing "severe pain." The Veteran did not identify any objective change in the level of impairment due to the service-connected back disability. January 2007 VA clinical records reflect that the Veteran was working as a school supervisor, which required no lifting, bending, squatting, or similar activities. The Veteran declined any treatment modality other than chiropractic treatment. The Veteran's complaints of pain with motion remained unchanged, and examiners continued to report that the Veteran had some limitation of motion, although specific measurements of the Veteran's range of motion were not noted. The Veteran's objective findings on radiologic examination, together with his complaints of pain, warrant a 10 percent evaluation, but no higher evaluation, during this period. In particular, there is no objective evidence to support the Veteran's complaints that pain severely limited his motion, or than pain was present with flexion of less than 60 degrees. Given the contrast between the Veteran's complaints and the objective evidence, the Board finds that the Veteran's complaints are not credible to warrant an evaluation in excess of 10 percent during this period. (c) From December 12, 2008 On December 12, 2008, the Veteran sought evaluation for increased back pain. His back brace was replaced and a TENS unit was provided. A May 2009 VA medical record shows that the Veteran continued to complain of low back and leg pain. He indicated that his low back pain had increased and was at a level of 8/10. It began in the low back and radiated down into the leg. He denied any numbness or tingling. Range of motion of the lumbar spine was "slightly reduced" on objective examination, although flexion produced pain at beginning at 15 degrees. Axial loading produced pain. Palpation of the lumbar facets revealed mild discomfort, but no paraspinal tenderness was noted. Straight leg raise test was positive on the left with reproduction of pain in the back. The impression was lumbar facet arthropathy involving bilateral L3-S1, lumbar radiculitis/radiculopathy, and a pars defect at L5 through S1. MRI examination in June 2009 disclosed a broad-based disk bulge at L5-S1. The examiner who conducted the July 2009 VA examination opined that this disc bulge was age-related. However, no examiner differentiated service-connected symptoms from symptoms unrelated to service-connected back disability. A July 2009 VA spine examination report showed that the Veteran reported severe pain and soreness in his back with back spasms, loss of strength, and limitation of motion. He reported radicular symptoms down his legs. Upon examination, the Veteran walked with a normal gait pattern with no assistive devices, and was able to stand erect. He had forward flexion of 90 degrees, extension to 15 degrees, right and left lateral bending to 10 degrees each, right lateral rotation to 20 degrees, and left lateral rotation to 10 degrees. He had complaints of pain throughout the entire range of motion accompanied by grimacing. He reported pain in the lower back radiating down into the groin area and left leg on all range of motion testing. There was no additional limitation of motion after repetitive motion. Subjective complaints of tenderness were noted in the left paravertebral area with slight flinching. There was no objective evidence of spasm. The examiner noted that May 2009 X-rays revealed spondylolysis at L5-S1 with modest narrowing of the L5-S1 disc space, and arthritic disease along the sacroiliac joint. An MRI study from June 2009 revealed broad-based disc bulge at L5-S1 with posterior facet hypertrophy, as well as ligamentum flavum hypertrophy, at this level. These changes were also present to a moderate degree at other levels. A bilateral pars interarticularis defect at L5 was noted. The impression was L5 spondylolysis, multilevel lumbar facet arthropathy, and degenerative disease of the sacroiliac joint. The examiner noted that, to address the Deluca provisions, there was no additional limitation of motion after three repetitive motions. Additional limitation of motion during a flare-up could not be determined without resorting to speculation. A July 2009 VA neurological examination report revealed that the Veteran reported pain in his back, more on his left side, which radiated down the back of his legs into all the toes. He denied numbness, but had weakness about the left knee and sometimes the ankle. The examiner found that the Veteran had a normal gait and station, and tandem walked well. He would not get on his heels and toes. Motor strength was 5/5 with give way weakness proximal lower extremity and poor effort distally, with normal tone and bulk. Sensory was intact to pin prick except over the surgical scar overlying the left Achilles tendon. Reflexes were 2+ and equal, and straight leg raising was negative. The assessment was that he had neither physical nor imaging finding of lumbar root involvement. A 20 percent evaluation has been granted, as of July 2009. The Board finds that the objective evidence reflects that the radiologic findings which warrant the increased evaluation to 20 percent are disclosed by increased symptomotology beginning with the December 12, 2008 request for evaluation. The Board finds that, based upon the evidence of record, the Veteran's service-connected back disability warrants a 20 percent evaluation, beginning December 12, 2008. However, the evidence does not warrant a disability rating in excess of 20 percent during this period. In order to warrant a 20 percent disability rating, the Veteran's disability would need to show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. However, the July 2009 VA spine examination report showed that the Veteran had forward flexion of 90 degrees, extension to 15 degrees, right and left lateral bending to 10 degrees each, right lateral rotation to 20 degrees, and left lateral rotation to 10 degrees. This results in a combined range of motion of 155 degrees. While he had complaints of pain throughout the entire range of motion accompanied by grimacing, there is no evidence that this pain limited his range of motion. There was no additional limitation of motion after repetitive motion. As such, even factoring in the Deluca provisions, the Veteran's symptomatology does not meet the criteria for a 20 percent disability rating under the General Formula as of July 22, 2009. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The Board also notes that there is no evidence that the Veteran has had any incapacitating episodes as contemplated by the rating criteria. Therefore, a higher disability rating under the Formula for Incapacitating Episodes is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that the rating criteria provide for separate disability ratings for any neurological deficits associated with the Veteran's service-connected lumbar spine disability. In this case, the Veteran has complained of pain radiating into his legs and has been diagnosed with paresthesia and lumbar radiculitis/radiculopathy. However, for the following reasons, the Board finds that separate disability ratings are not warranted. First, the August 2004 VA examination report shows that the deep tendon reflexes were active and equal in the knees and ankles bilaterally, and there was no weakness or sensory loss detected in either lower extremity. The November 2005 VA examination report showed that the Veteran did not describe true sciatic symptoms or anything of a dermatomal nature. September 2006 and October 2006 VA medical records showed that the Veteran had motor strength of 5/5 in both lower extremities, and deep tendon reflexes were 2+ and equal. Finally, the July 2009 VA neurological examination report indicated that the Veteran had motor strength was 5/5 with give way weakness and poor effort distally, with normal tone and bulk. Sensory was intact to pin prick except over the surgical scar overlying the left Achilles tendon, reflexes were 2+ and equal, and straight leg raising was negative. The assessment was that he had neither physical nor imaging finding of lumbar root involvement. As such, the Board finds that the evidence of record is against separate disability ratings for neurological deficits associated with his service-connected lumbar spine disability. The Board has considered and staged the evaluations assigned during this initial evaluation period. The evidence does not warrant a finding that the Veteran's service-connected lumbar spine disability should be increased for any other separate period based on the facts found during the appeal period. Fenderson, 12 Vet. App at 125-26. Finally, the Board finds that the disability picture is not so exceptional or unusual as to warrant a referral for an evaluation on an extraschedular basis. For example, there is no competent evidence that the Veteran's service-connected spine disability has resulted in frequent hospitalizations or marked interference in his employment at any time over the appeals period. Therefore, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2009). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As the preponderance of the evidence is against the Veteran's claim for increased ratings for his lumbar spine disability, the "benefit-of-the-doubt" rule is not applicable and the Board must deny his claim. See 38 U.S.C.A. § 5107(b). In addition, there is no evidence that the Veteran's service- connected lumbar spine disability was manifested by 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. While the records reflect that the Veteran complained of tenderness in his spine area, there is no evidence that there was localized tenderness to warrant a compensable disability rating. A February 2005 VA medical record reflected that there was no point tenderness. September 2006 and October 2006 VA medical records also showed that he had no point tenderness. As such, a compensable disability rating for the Veteran's service-connected lumbar spine disability is not warranted for the period from May 8, 2004 through July 21, 2009 under the General Formula. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The Board has considered whether rating the Veteran's service-connected lumbar spine disability under Diagnostic Code 5243 (intervertebral disc syndrome) under the Formula for Incapacitating Episodes would provide him with a compensable disability rating for the period from May 8, 2004, through July 21, 2009; however, there is no evidence that the Veteran has had any incapacitating episodes, as contemplated by the rating criteria, during this time. Therefore, a higher disability rating is not warranted under Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. ORDER Prior to January 9, 2007, an initial compensable disability rating for spondylolysis, L5, is denied. From January 9, 2007, through December 11, 2008 the initial disability rating for spondylolysis, L5, is increased from noncompensable to 10 percent disabling, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. From December 12, 2008, an increased initial disability rating to 20 percent is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ______________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs