Citation Nr: 1031285 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 06-11 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an evaluation in excess of 10 percent for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1995 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying a compensable evaluation for a lumbar strain. In April 2005, the Veteran submitted a notice of disagreement, and subsequently perfected her appeal in April 2006. In a February 2006 rating decision, the RO increased the Veteran's disability rating for lumbar strain with disc disease to 10 percent. Because the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In March 2009, the Board remanded the case to the Appeals Management Center (AMC) for further development. In February 2010, the Board again remanded the case for readjudication by the AMC based on new evidence submitted by the Veteran. The AMC continued the previous denial of the claim in a May 2010 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. In April 2006 and December 2009, the Veteran and her husband stated that the Veteran experienced, and was being treated for, depression as a result of her back pain. Thus, the evidence raises the issue of entitlement to service connection for depression on a secondary basis. Thus, a claim of entitlement to depression, secondary to a low back disability, is REFERRED to the RO for further action. FINDINGS OF FACT 1. The evidence shows that the Veteran's service-connected low back disability is manifested by pain, flare-ups, and limitation of motion. The evidence does not show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, 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. 2. The evidence does not show that the Veteran experiences incapacitating episodes requiring bed rest prescribed by a physician and treated by a physician due to her low back disability. 3. The evidence does not show that the Veteran's service- connected low back disability is so exceptional or unusual that referral for extraschedular consideration by a designated authority is required. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for the Veteran's service-connected low back disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating for her service-connected low back disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in March 2009 and February 2010, the Board remanded this claim and ordered the AMC to obtain Social Security Administration (SSA) records, obtain private treatment records, and schedule the Veteran for a new VA examination. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, the AMC attempted to obtain the Veteran's SSA records, and were subsequently informed by SSA in June 2009 that none were available. Further, in a March 2010 letter, the AMC contacted the Veteran and requested that she complete a VA Form 21-4142 Authorization and Consent to Release Information in order to obtain outstanding private treatment records, to include records from Dr. S. The Veteran did not respond to the March 2010 letter. Finally, the Veteran was provided a VA examination in October 2009. The Veteran's low back disability claim was readjudicated via November 2009 and May 2010 SSOC's. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice, and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in December 2004, and notice with respect to the effective-date element of the claim, by letters mailed in March 2006 and March 2009. Although the March 2006 and March 2009 letters were provided after the initial adjudication of the claim, the Board finds that the Veteran has not been prejudiced by the timing of these letters. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the AMC readjudicated the Veteran's claim in November 2009 and May 2010 SSOC's. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate her claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes statements from the Veteran, her husband, and her former co-workers, service treatment records, and private treatment records. As noted above, pursuant to the Board's remand instructions in February 2010, the AMC attempted in a March 2010 letter to locate all treatment records from Dr. S. as well as treatment records referenced in the Veteran's April 2006 statement and her October 2005 hospitalizations. A VA Form 21-4142 Authorization and Consent to Release Information was enclosed with the March 2010 letter for this purpose. As evidenced by the claims folder, the Veteran has not returned the signed authorization form. Although the absence of potentially outstanding private treatment records, to include those from Dr. S., is regrettable, the Board finds that VA adjudication of the appeal may go forward without these treatment records because the Veteran had an obligation to assist VA in the development of her claim by providing the requested signed authorization form. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."); Olson v. Principi, 3 Vet. App. 480, 483 (1992); Hyson v. Brown, 5 Vet. App. 262 (1993) (while the VA does have a duty to assist the veteran in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the veteran to keep the VA apprised of their whereabouts. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him). The Board's decision to not remand the appeal for a third time to obtain these records is supported by the fact that it appears that the AMC made a sufficient attempt to locate the private treatment records. Moreover, as discussed immediately below, in December 2005 and October 2009 VA obtained comprehensive medical examinations which are adequate for the Board to finally adjudicate the appeal. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). The Veteran was afforded VA examinations in December 2005 and October 2009. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed her claims folder, reviewed her past medical history, documented her current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of her claim. She has retained the services of a representative. In her April 2006 substantive appeal [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision. Analysis Pertinent legal criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2009). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2009). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2009); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are 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 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2009). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2009). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2009). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's service-connected lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 [intervertebral disc syndrome]. The evidence of record indicates that the Veteran has been diagnosed with degenerated L4-L5 and L5-S1 intervertebral discs with mild central focal bulge. See a private treatment record from R.K.L., M.D. dated in October 2004. Based on reported symptomatology, and consistent with Diagnostic Code 5243, the Board will rate the Veteran under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician. Specific schedular criteria The Veteran's low back disability is currently evaluated 10 percent disabling. To warrant a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. September 2004 and October 2004 private treatment records from T.E.L., M.D., documented the Veteran's complaints of low back pain. The Veteran believed that her low back pain was aggravated by her day care activities as well as caring for her own children. Upon physical examination, Dr. T.E.L. noted that the Veteran's spine was straight with no tenderness to percussion. However, she reported paraspinal muscle spasm and decreased range of motion with side bending and twisting. She diagnosed the Veteran with a lumbar strain and prescribed medication and probable physical therapy. An October 2004 MRI from Dr. R.K.L. revealed an impression of degenerated L4-L5 and L5-S1 intervertebral discs with mild central focal bulge. The remainder of the examination was otherwise unremarkable. M.H., the Veteran's former supervisor, documented in a statement dated in April 2005 that when he worked with the Veteran, she missed many days due to severe back pain, and that when she was at work, she was unable at times to complete assigned tasks due to the back pain. He also noted that the Veteran often walked "hunched" over and was unable to stand up straight. She experienced visible pain when lifting, sitting, standing, bending, and walking. He further reported that the low back pain caused her to be passed over for a job promotion due to her inability to perform her job and the amount of days that she missed. M.H. also noted that he had seen the Veteran unable to pick up children when performing her daycare duties or move about. The Veteran was afforded a VA examination in December 2005. She complained of aching and sharp sensations in her back. The pain was exacerbated when sitting or standing for too long. She also complained of pain when lifting, in particular when lifting children when she performed her day care duties. She was not taking any pain medication at the time because she was breast feeding. She further indicated that pain was a limiting factor during flare-ups. The VA examiner noted the absence of a back brace or any assistive devices used to ambulate. Although the Veteran was able to walk around the block, she had to rest after walking a couple of blocks due to the pain in her back. She denied any unsteadiness on her feet, although she had fallen twice in the previous six months when going down stairs. The Veteran did not indicate any loss of bowel or bladder control. Upon physical examination, the VA examiner noted a normal gait, no gross deformity, and tenderness to palpation at the lumbar spine without any trigger points. Further, the Veteran was able to tandem walk on heels and toes as well as squat without difficulty. Range of motion testing revealed forward flexion of 85 degrees, extension of 22 degrees, trunk bending to the right of 26 degrees, to the left of 14 degrees, trunk rotation to the right of 65 degrees, and to the left of 42 degrees. The combined range of motion was 254 degrees. The Veteran complained of pain with all ranges of motion, and repetitive motion of the spine caused discomfort. The Board notes that the VA examiner did not indicate when pain began during range of motion testing. An X- ray report of the Veteran's spine revealed a normal impression, and the Veteran was diagnosed with degenerative disc disease. In her April 2006 VA Form 9, the Veteran stated that she was hospitalized when the pain in her back caused her to fall down stairs when she squatted. Further, she noted that she was unable to bend to any degree without pain varying in intensity, was unable to stand straight and walk, could not sleep well at night, and that her back pain extended from the lowest point on her back to the middle point and was tender and hurt when touched. With respect to daily activities, the Veteran was not able to carry her 10-pound infant son without pain, carry grocery sacks, do yard work, or carry a basket of laundry. Moreover, the Veteran stated that she uses muscle relaxers, over the counter medication, and a heating pad at night for treatment. The Veteran's husband reported the Veteran's complaints of pain in her back and inability to perform daily activities in a March 2006 statement. Specifically, he noted her inability to lift her baby, carry a basket of laundry, go for walks, shop for groceries, or sit down or stand with her children. These comments were reiterated in a December 2009 statement. Additionally, the Veteran's supervisor at her former daycare job, E.B., reported in a March 2006 statement that the Veteran was unable to go to work 10-12 times during the five-month period of employment due to her back pain. Further, the Veteran was unable to pick up the children, sit on the floor, or participate in the indoor and outdoor activities. E.B. stated that she therefore had to end the daycare contract with the Veteran. M.H. stated similar problems that the Veteran experienced at the daycare due to her low back pain in a March 2006 statement. Private treatment records dated in June 2006 document the Veteran's continued complaints of daily low back pain which became worse with activity and disrupted her sleep. Upon physical examination, the Veteran's spine was noted as normal. Further, no rheumatological cause of the Veteran's pain and limitation of activity was offered. The Veteran was diagnosed with spine pain and muscle pain. The Veteran was provided a VA examination in December 2009. The Veteran complained of a constant throbbing, aching sensation in her lower back without flaring, although the pain could be moderate to severe. She further stated that picking up her children or doing housework exacerbates the pain. For pain relief, the Veteran takes muscle relaxants and occasionally has her lower back massaged. She denied any loss of bowel or bladder control. Upon physical examination, the VA examiner noted that the Veteran ambulated independently without the use of assistive devices and her gait was normal. Notably, the Veteran had no pain with palpation of the low back or paraspinal muscle spasm. Moreover, there was no adema or muscle atrophy. Range of motion testing revealed forward flexion of the low back up to 90 degrees with some stretching sensation beginning at about 70 degrees, extension up to 27 degrees, right and left lateral flexion up to 26 degrees, and right and left rotation up to 28 degrees with some stretching sensation in particular on the left. The combined range of motion is 205 degrees with pain considered. After repetitive motion testing the Veteran's range of motion remained the same and there was no further functional impairment due to pain, fatigue, incoordination, or instability. Additionally, the Veteran was able to stand on her heels and toes without difficulty, tandem gait was normal, and Waddell's was negative. An X-ray report revealed an impression of small spurs involving the anterior margins of L4 and L5 with no other abnormalities. The VA examiner diagnosed the Veteran with a lumbar strain. In a December 2009 statement, the Veteran continued her complaints of constant back pain, inability to sit or stand for any length of time as well, difficulty sleeping, and inability to hold infants as part of her daycare duties. Further, activities such as walking to the zoo with her children require her to remain in bed for the rest of the day. As discussed above, to warrant a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. However, review of the evidence of record reveals that the Veteran's low back symptomatology does not approach a 20 percent disability rating during the period on appeal. Specifically, range of motion testing conducted during the December 2005 and October 2009 VA examinations (the only range of motion testing of record which were measured) revealed forward flexion of 85 degrees and 70 degrees, respectively, and combined range of motion of 254 degrees and 205 degrees, respectively. These measurements are well beyond the 120 degree combined range of motion contemplated by a higher rating [specifically, forward flexion of the lumbar spine not greater than 60 degrees and combined range of motion not greater than 120 degrees]. Additionally, the evidence of record does not indicate that the Veteran has exhibited muscle spasms or guarding severe enough to result in abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board notes that Dr. T.E.L. reported paraspinal muscle spasm during September and October 2004 private treatment examinations. However, the remainder of the evidence of record is pertinently absent any indication that paraspinal muscle spasm exists, to include the October 2004 MRI. Crucially, the December 2005 VA examiner reported that an examination of the Veteran's spine revealed no gross deformity, and that the Veteran had tenderness to palpation of the lumbar spine with no trigger points. Moreover, the October 2009 VA examiner noted that the Veteran had no pain with palpation of the low back or paraspinal muscle spasm. Further, there was no adema or muscle atrophy, and the Veteran's gait was normal. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2009). See DeLuca, supra. The Board recognizes the Veteran's complaints of functional loss as a result of her low back disability, notably her difficulty with performing daily activities, flare-ups, pain, weakness, and inability to sit or stand for long periods of time. See, e.g., the December 2005 VA examination report; see also the Veteran's statement dated in December 2009. S.K., M.H., and E.B. also submitted statements detailing the Veteran's complaints of functional loss. However, the Board places greater probative value on the objective clinical findings which do not support either the Veteran's contentions or those of S.K., M.H., or E.B. regarding the severity of the Veteran's disability. In this regard, the competent medical evidence of record does not indicate significant functional loss attributed to the Veteran's back complaints to warrant an increased disability rating. Specifically, during the most recent VA examination in October 2009, the Veteran was able to maintain forward flexion up to 70 degrees, extension up to 27 degrees, right and left lateral flexion up to 26 degrees, and right and left rotation up to 28 degrees with a combined range of motion of 205 degrees. The December 2005 VA examiner similarly noted forward flexion of 85 degrees, extension of 22 degrees, trunk bending to the right of 26 degrees, to the left of 14 degrees, trunk rotation to the right of 65 degrees, and to the left of 42 degrees with a combined range of motion of 254 degrees. The October 2009 VA examiner specifically noted that with repetition there was no increase in loss of range of motion and there was no further functional impairment due to pain, fatigue, incoordination, or instability. Based on this record, the Board is unable to identify any clinical findings that would warrant an increased evaluation for the Veteran's low back disability under 38 C.F.R. § 4.40 and 4.45. The current 10 percent rating adequately compensate the Veteran for any functional impairment attributable to her service-connected low back disability. See 38 C.F.R. §§ 4.41, 4.10 (2009). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2009); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2009); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran has complained of radiating pain down her legs to her knees bilaterally. See the December 2005 VA examination report. Moreover, Dr. T.E.L. noted upon physical examination in September 2004 that Achilles deep tendon reflexes were 0 to 1+ bilaterally. Private treatment records dated in June 2006 also note 1+ reflexes in the lower extremities bilaterally. However, the competent and credible evidence of record does not indicate neurological impairment sufficient to warrant a separate disability rating. Specifically, the Veteran denied any numbness or tingling as well as motor extremity weakness to Dr. T.E.L. in September 2004 and October 2004. Further, although Dr. T.E.L. noted 0 to 1+ Achilles deep tendon reflexes, she also noted that lower extremities motor strength was 5/5 and equal bilaterally, and that patellar deep tendon reflexes were 2+. Additionally, the December 2005 VA examiner indicated muscle strength of 5/5 in the lower extremities, deep tendon reflexes of 2+ in the knees and ankles, a normal sensory examination, and negative straight leg raising bilaterally. Moreover, the October 2009 VA examiner reported deep tendon reflexes of 2+ bilaterally, muscle strength of 5/5 bilaterally, and no deficit to vibratory sensation or to light touch sensation. Finally, the Veteran has not identified any bladder or bowel dysfunction, and none has been diagnosed. Based this record, and although not necessarily disputing that certain neurological symptoms may be present in the Veteran's bilateral lower extremities, the Board finds that separate ratings for neurological impairment of the bilateral lower extremities are not warranted. The Board additionally notes that although the Veteran has been diagnosed with degenerative disc disease of the lumbar spine, this disease manifests in back pain based on identified symptomatology. Accordingly, separately rating the diagnosis would amount to prohibited pyramiding. See 38 C.F.R. § 4.14 (2009) [the evaluation of the same disability under various diagnoses is to be avoided]. In Hart, supra, the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). After a careful review of the record, the Board can find no evidence to support a finding that the Veteran's low back disability was more or less severe during the appeal period. Specifically, as discussed above, the December 2005 and October 2009 VA examination reports, as well as private treatment records, indicate that the Veteran's low back symptomatology has remained relatively consistent throughout the period. No evidence was presented to allow for the assignment of an increased disability rating at any time during the period here under consideration. As such, there is no basis for awarding the Veteran a disability rating other than the currently assigned 10 percent for any time from November 2003 to the present. In sum, the Board finds that a disability rating in excess of 10 percent for the Veteran's low back disability under the General Rating Formula for Disease and Injury of the Spine is not warranted. Intervertebral Disc Syndrome Based on Incapacitating Episodes Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Further, as noted in the schedular criteria, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran has contended that her low back disability causes flare-ups, pain, and interference in daily activities. However, the medical evidence does not indicate, and the Veteran does not contend, that she has been prescribed bed rest by a physician based on incapacitating episodes. Therefore, the Veteran's service-connected low back disability does not warrant an increased disability rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Extraschedular consideration The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's low back disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b)(1) (2009). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. The evidence of record indicates that the Veteran previously worked in the telecommunications industry, but had to leave that job due to her severe low back pain. See statement from M.H. dated in March 2005. The Veteran currently works at home and provides daycare to two or three children. See the October 2009 VA examination report. The Board notes the Veteran's complaints throughout the record with respect to her difficulty taking care of the children, to include her complaints of difficulty lifting the children as well as participating in activities that require long periods of sitting or standing. Indeed, there is no reason to doubt that the Veteran's low back symptomatology adversely impacts her employability; however, this is specifically contemplated by the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In addition, there is no evidence in the medical records of an exceptional or unusual clinical picture. The Veteran has stated that she required emergency room treatment on two occasions because of back pain when climbing up stairs. See the Veteran's statement dated in December 2009. The Board notes that the evidence of record is absent any emergency room treatment for the Veteran's lower back. In any event, the remainder of evidence is absent any indication of hospitalization for the service- connected low back disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Rice Consideration In denying the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Board notes that the Veteran has stated that she is unable to work in her previous field of employment in the telecommunications field because of her low back disability. However, the evidence of record does not show, and the Veteran has not asserted, that she is unemployable because of her service-connected low back disability. On the contrary, she currently works providing daycare to several children. Notably, she reported in the December 2009 statement that her disability rating should reflect "80% disability," indicating that she did not feel that she was totally disabled as a result of her low back disability. Accordingly, the Board concludes that the issue of TDIU has not been raised in this case. ORDER Entitlement to an evaluation in excess of 10 percent for a low back disability is denied. ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs