Citation Nr: 1017852 Decision Date: 05/13/10 Archive Date: 05/26/10 DOCKET NO. 00-14 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right hip disability, claimed as secondary to a service-connected lumbar spine disability. 2. Entitlement to an increased evaluation for a lumbar spine disability, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from March 1986 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted an increased 40 percent rating for spondylolisthesis of the lumbar spine with intermittent headache, neck pain, and sciatica, and found a well-grounded claim had not been submitted for entitlement to service connection for a right hip disability secondary to a service- connected lumbar spine disorder. The service connection claim was subsequently adjudicated on the merits in a supplemental statement of the case. These matters were previously before the Board in November 2003, June 2005, and November 2007, and were remanded for further development. As discussed below, the Board finds that the RO substantially complied with the mandates of the remands and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The appellant requested a hearing before a Veterans Law Judge, and was scheduled for a Travel Board Hearing in November 2002, but the appellant did not report for the hearing. That hearing request is deemed to be withdrawn. FINDINGS OF FACT 1. The evidence of record does not support a finding that the appellant has a right hip disability that is etiologically related to, or aggravated by the service-connected lumbar spine disability. 2. For the rating period on appeal, service-connected disability of the lumbar spine has been manifested by moderate to severe limitation of range of motion and no ankylosis, with mild neurological findings of bilateral radiculopathy. CONCLUSIONS OF LAW 1. A right hip disability is not proximately due to, the result of, or aggravated by the service-connected lumbar spine disability. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The criteria for an evaluation in excess of 40 percent for a service-connected low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (as in effect prior to September 26, 2003); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect prior to September 23, 2002, and from September 23, 2002 through September 25, 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (as in effect from September 26, 2003). 3. The criteria for a separate 10 percent evaluation for right lower extremity neurologic manifestations of the service-connected low back disability, from September 23, 2002, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect prior to September 23, 2002, and from September 23, 2002 through September 25, 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5239, 5243 (as in effect from September 26, 2003); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009). 4. The criteria for a separate 10 percent evaluation for left lower extremity neurologic manifestations of the service- connected low back disability, from September 23, 2002, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect prior to September 23, 2002, and from September 23, 2002 through September 25, 2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5239, 5243 (as in effect from September 26, 2003); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009). The United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. The U.S. Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A letter dated in January 2010 fully satisfied the duty to notify provisions of Vazquez-Flores, Quartuccio, and Dingess/Hartman . 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187; Dingess/Hartman, at 490. Although this letter was not sent prior to initial adjudication of the appellant's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, he was provided two years to respond with additional argument and evidence and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the appellant in January 2010. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The appellant also received VCAA notice letters in January 2002, March 2004 and June 2005. In light of the foregoing, the Board finds that the requirements of Vazquez-Flores and Dingess/Hartman are met. The Board, therefore, finds that the requirements of Quartuccio are met and that the VA has discharged its duty to notify. See Quartuccio, supra. The Board also concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded June 2009 and January 2010 medical examinations to obtain opinions as to whether his right hip condition had been aggravated by his service-connected lumbar spine disability. These opinions were rendered by medical professionals following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the June 2009 and January 2010 examinations were adequate. See Nieves-Rodriguez, supra. Regarding the appellant's claim for an increased evaluation, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). Where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The RO provided the appellant with appropriate VA examinations in January 2010, September 2009, and June 2009. The appellant also had appropriate VA examinations in August 1999, October 2001, January 2005, and March 2007. The appellant has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The January 2010, September 2009, and June 2009 VA examination reports are thorough and supported by VA treatment records. The examinations in this case are adequate upon which to base a decision. The November 2007, June 2005, and November 2003 Board remands requested VA examinations. As the VA examinations are thorough and adequate upon which to base a decision, the Board finds that the RO substantially complied with the mandates of the remands. See Dyment, supra; Stegall, supra. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Right Hip Disability The appellant contends that he is entitled to service connection for a right hip disability, secondary to his service-connected lumbar spine disability. For the reasons that follow, the Board concludes that service connection is not warranted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may be granted for disability which is proximately due to, the result of, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2009). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. See Wallin v. West, 11 Vet. App. 509. 512 (1998). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disability. 38 C.F.R. § 3.310 (2009). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Id. The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310, effective October 10, 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appear to be substantive changes, and because the appellant's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the claimant. The appellant asserts that service connection is warranted for a right hip disability. At the outset, the Board notes that in this case, the appellant's original claim, notice of disagreement, and substantive appeal make it clear that he contends that his right hip disability is due to his service- connected lumbar spine disability. He has not contended, and the evidence does not suggest, that his right hip condition had its onset during or as a result of service, or that it may be so presumed. He has consistently reported that his right hip condition was caused by a car accident in 1998, seven years after his discharge from service. When neither the appellant nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not, sua sponte, consider and discuss that theory. Therefore, the Board will not discuss direct service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). The appellant is presently service connected for a lumbar spine disability. The January 2010 VA examination report reflects that the appellant had a right hip replacement in 1998 following a car accident. The VA examiner found the appellant currently had a moderate right hip condition. A March 2007 VA fee-basis examination report reflects that the appellant had a right total hip replacement with residual strain due to chronic gait alteration. Finally, a June 2009 x-ray report indicated the appellant had a right hip arthroplasty without evidence of hardware failure. As the evidence indicates the appellant has a right hip disability, the remaining question is whether the lumbar spine disability caused or aggravated the right hip disability. The June 2009 VA examination report found that the appellant had right hip pain with status post-hip arthroplasty, status- post acetabular fracture. An x-ray of the right hip showed a right hip arthroplasty without evidence of hardware failure, and no acute fracture or dislocation. The appellant stated that the pain had gotten worse because he started walking more after his back improved. Consequently, the VA examiner found it was at least a likely as not that the appellant's right hip condition was aggravated by his improvement of his back condition as he started ambulating more when his back improved. The January 2010 VA examination report also reflects that the appellant reported his hip condition became worse as a result of the increase in his activity level following back surgery. On physical examination, the appellant reported pain in his left hip with movement and decreased range of motion in both hips. The January 2010 VA examiner noted that the June 2009 VA examiner had felt there was a connection between the right hip condition and his lumbar spine condition. The VA examiner opined that there was no new objective dispute to dispute this, and therefore, the appellant's hip disability was aggravated beyond the normal course and it was at least as likely as not caused by or a result of his back condition. The VA examiner noted that the appellant's right hip condition was mild prior to back surgery, but there was limited information to establish his baseline level of function. Although the June 2009 and January 2010 VA examiners conducted thorough physical examination and provided reasoning for their opinions, the Board finds the opinions are not probative. Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disability. The June 2009 VA examiner specifically opined that the appellant's right hip condition was aggravated by the improvement of his back condition following surgery. The examiner did not indicate the hip condition was aggravated by the lumbar spine disability itself. Similarly, the January 2010 VA examiner based his reasoning on the fact that the appellant was more active following his back surgery. Both VA examiners essentially opined that the appellant's right hip disability was aggravated by increased movement and activity, not by a service-connected disability. To establish service connection as secondary to a lumbar spine disability, the evidence must show that the service-connected disability aggravated the right hip condition. As the January 2010 and June 2009 VA opinions indicate only that the appellant's right hip disability was aggravated by increased movement, the Board finds that the opinions lack probative value for the purpose of determining whether the appellant is entitled to service connection for a right hip disability, as secondary to his service-connected lumbar spine disability. There is no evidence of record indicating the appellant's right hip disability was aggravated by his lumbar spine disability. Private medical records from November 2005 to November 2009 do not contain any references to a nexus between the right hip disability and lumbar spine disability. Additionally, the January 2010 examiner noted that it would appear from his records and treatment history that the appellant's right hip condition was mild prior to back surgery. The October 2005 VA examiner opined that the appellant's right total hip arthroplasty was not related to his low back condition. The appellant has asserted that his right hip condition was aggravated by his lumbar-spine disability. Although the appellant is competent to testify as to his experiences and symptoms, where the determinative issue involves a question of medicine or science, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (holding that a lay witness can provide an "eye- witness" account of visible symptoms, but cannot offer evidence that requires medical knowledge, such as causation or etiology of a disease or injury.) Little probative weight can be assigned to the lay statements of record regarding the etiology of the right hip disability, as the Board deems such statements to be less than competent. The appellant is competent to comment on his symptoms, but not the cause. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant's statements are not supported by the other evidence of record. Further, the appellant has not been shown to possess the requisite education, skills, or training to provide an opinion requiring medical knowledge, such as a question of medical causation. Espiritu, 2 Vet. App. at 492. Thus, his statements concerning the aggravation of his right hip disability are of limited probative value. To the extent the appellant contends that his right hip condition was aggravated by his service-connected lumbar spine disability, the Board finds that the preponderance of the evidence is against causation. The Board recognizes that the appellant is competent to report his symptoms. However, the appellant has not been shown to possess the requisite skills or training necessary to be capable of making medical conclusions. There is no medical evidence of record indicating the appellant's right hip condition was aggravated by his lumbar spine disability. In sum, the evidence fails to demonstrate that the appellant's right hip condition is proximately due to, the result of, or aggravated by, a service-connected disability. See 38 C.F.R. § 3.310, supra. The Board finds that the preponderance of the evidence is against the appellant's claim for entitlement to service connection for a right hip disability. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Lumbar Spine Disability A. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court recently 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). B. Rating musculoskeletal disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. C. The Spine The schedular criteria for evaluating disabilities of the spine have undergone revision twice since the appellant filed his claim. The first amendment, affecting Diagnostic Code 5293, was effective September 23, 2002. 67 Fed. Reg. 54,345 (Aug. 22, 2002). The next amendment affected general diseases of the spine and became effective September 26, 2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Effective prior to September 26, 2003 As in effect prior to September 26, 2003, 38 C.F.R. § 4.71a, Diagnostic Code 5289, provides that a 40 percent evaluation is warranted for favorable ankylosis of the lumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the lumbar spine. As in effect prior to September 26, 2003, 38 C.F.R. § 4.71a, Diagnostic Code 5292, provides that a 10 percent evaluation is warranted for slight limitation of motion of the lumbar spine. A 20 percent evaluation requires moderate limitation of motion of the lumbar spine. A 40 percent evaluation (the highest rating available under this diagnostic code) requires severe limitation of motion of the lumbar spine. As in effect prior to September 26, 2003, 38 C.F.R. § 4.71a, Diagnostic Code 5295 provides a noncompensable evaluation for lumbosacral strain with slight subjective symptoms only. A 10 percent evaluation is for assignment for lumbosacral strain with characteristic pain on motion. A 20 percent rating is for assignment for lumbosacral strain manifested by muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating (the highest rating available under this diagnostic code) is for application for 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. IVDS - Effective prior to September 23, 2002 As in effect prior to September 23, 2002, 38 C.F.R. § 4.71a, Diagnostic Code 5293, provides that intervertebral disc syndrome is evaluated as noncompensable when postoperative and cured. Mild intervertebral disc syndrome warrants a 10 percent rating. A 20 percent evaluation is for assignment for moderate intervertebral disc syndrome with recurring attacks. Severe intervertebral disc syndrome manifested by recurring attacks, with intermittent relief warrants a 40 percent rating. Pronounced intervertebral disc syndrome, 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, is assigned a 60 percent rating. IVDS- Effective from September 23, 2002 through September 25, 2003 Under the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 through September 25, 2003, IVDS may be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations, along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is assigned. With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is assigned. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assigned. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assigned. Note (1) under this diagnostic code provides that, for purposes of evaluations under DC 5293, 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. 'Chronic orthopedic and neurologic manifestations' means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Effective from September 26, 2003 As in effect from September 26, 2003, under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (for lumbosacral strain), DC 5242 (for degenerative arthritis of the spine), and for DC 5243 (for intervertebral disc syndrome), provides that 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 is rated at 10 percent. A 20 percent evaluation is for assignment where there is 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 there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Note (1) under these diagnostic codes provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a. Effective from September 26, 2003, 38 C.F.R. § 4.71a, also provides that intervertebral disc syndrome may be rated pursuant to Diagnostic Code 5243 under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, or the General Rating Formula for Diseases and Injuries of the Spine (as outlined above), based on whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The criteria for rating intervertebral disc syndrome based on incapacitating episodes remain unchanged from that which became effective September 23, 2002, as outlined above. Pursuant to Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991), where a law or regulation changes after the claim has been filed or reopened, but before administrative or judicial process has been concluded, the version of the law most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. As such, the rating criteria in effect prior to September 26, 2003 (except for the revision to DC effective from September 23, 2002 through September 25, 2003, are for consideration throughout the rating periods on appeal, with application of the version of the law most favorable to the appellant. However, the amendment to DC 5293, effective from September 23, 2002 through September 25, 2003, and the revisions to the rating schedule effective from September 26, 2003, may not be applied retroactively. Hence, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, and the Board considers both the former and the current schedular criteria, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). D. Analysis Historically, a November 1991 rating decision granted service connection for spondylolisthesis grade I-II with chronic back pain, effective May 14, 1991. A January 1995 rating decision granted an evaluation of 10 percent, effective September 28, 1994, under Diagnostic Code 5295. Thereafter, a June 1998 rating decision granted a 20 percent evaluation, effective January 15, 1998. The December 1999 rating decision granted an evaluation of 40 percent for spondylolisthesis of the lumbar spine with intermittent headache, neck pain and sciatica, effective June 23, 1999, under Diagnostic Codes 5299-5293. The appellant requested an increased evaluation for his service-connected lumbar spine disability in June 1999. Therefore, the evidentiary period is from June 1998, one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o)(2) (2009). However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of the disability is for consideration in rating a disability. The Board notes that the appellant has not been specifically service-connected for intervertebral disc syndrome or degenerative joint disease of the lumbar spine (arthritis). However, manifestations of nonservice-connected lumbar spine disability not clinically distinguished in the record from the service-connected disability, will be considered in evaluating the disability at issue. Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice- connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the appellant's favor, and that such signs and symptoms be attributed to the service-connected condition). Additionally, the March 2007 VA fee-basis examination report reflects that the appellant had a diagnosis of lumbar spinal degenerative disc disease with grade 1 spondylolisthesis. As in effect prior to September 26, 2003, Diagnostic Code 5292, concerning limitation of lumbar spine motion, does not afford a rating in excess of 40 percent. As such, that Code section cannot serve as a basis for an increased rating here. Similarly, Diagnostic Code 5295, pertaining to lumbosacral strain prior to September 26, 2003, provides a maximum benefit of 40 percent. Thus, an increased rating is also not possible under that Code section. Furthermore, as in effect prior to September 26, 2003, under Diagnostic Code 5289, a 50 percent disability evaluation is warranted for unfavorable ankylosis of the lumbar spine. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as the complete immobility of a joint in a fixed position). The evidence establishes that the appellant retained a range of lumbar spine motion. The January 2010 VA examination report specifically noted that there was no thoracolumbar spine ankylosis. A March 2007 VA fee-basis examination report reflects that the appellant's dorsolumbar spine had forward flexion of 70 degrees and extension of 10 degrees. Even with consideration of additional functional impairment due to pain, there is no clinical evidence which demonstrates that the disability picture prior to September 26, 2003, approximated unfavorable ankylosis. As such, the Board does not believe that an evaluation in excess of 40 percent under Diagnostic Code 5289 is warranted. The Board must also consider other applicable Diagnostic Codes in effect prior to September 23, 2002, including Diagnostic Code 5285. With regard to the criteria for residuals of fractured vertebra without cord involvement under Diagnostic Code 5285, the Board finds that the appellant has no such demonstrable deformity of a vertebral body. Additionally, as the evidence does not reveal a disability picture analogous to favorable angle ankylosis, Diagnostic Codes 5286 and 5289 do not apply. The Board does not find support for the next-higher 60 percent rating under Diagnostic Code 5293 as in effect prior to September 23, 2002. The January 2010 VA examination report reflects that the appellant described having radiating pain from his mid low-back to right thigh, and from his left leg to his foot. The appellant also had decreased vibratory sense in both of his distal foot and toes. An August 1999 VA examination report reflects that the appellant reported increasing amounts of tenderness in the back that radiate to his legs and feet and occasionally some numbness and tingling. The August 1999 VA examiner noted that the appellant had some static irritation signs, but leg raising caused some back pain for him. However, an August 1999 VA examination report did not note any neurological findings. An October 2001 VA examination report found no sciatic irritation signs. A maximum 60 percent rating required pronounced impairment with persistent symptoms compatible with sciatic neuropathy. Although the evidence reflects that the appellant experienced symptoms of sciatic neuropathy, it does not reflect that the appellant had persistent symptoms of sciatic neuropathy, or that he experienced muscle spasms or ankle jerks. A 60 percent disability rating Diagnostic Code 5293, as in effect prior to September 23, 2002, also contemplates little intermittent relief. However, the medical evidence shows that the appellant, although consistently experiencing some level of pain and related symptoms, does have intermittent relief. The June 2009 VA examination report noted that appellant described having constant pain at a level of 7 out of 10 in the lumbar area with radiation down his left leg and groin. However, the September 2009 VA examination report indicates the appellant had been employed full time for the past five years as a purchasing agent. The October 2001 VA examination report indicated the appellant's symptoms have not been so severe that he was unable to do daily activities. He did not use a cane or wear a brace. The Board finds that the findings detailed above are appropriately reflected in the 40 percent evaluation presently in effect for the appellant's low back disability. Therefore, the assignment of a 60 percent rating for pronounced intervertebral disc syndrome is not warranted under the criteria for intervertebral disc syndrome as in effect prior to September 23, 2002. Effective September 23, 2002, the diagnostic criteria for intervertebral disc syndrome under Diagnostic Code 5293 underwent revision. As revised, prior to September 26, 2003, Diagnostic Code 5293 states that intervertebral disc syndrome is to be evaluated either based on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 the separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The evidence does not establish incapacitating episodes, as defined by Note (1) to Diagnostic Code 5293, having a total duration of at least 6 weeks during a previous 12-month period. Indeed, although the January 2010 VA examination report reflects that the appellant reported having incapacitating episodes five times in the past year, there is no evidence of any bed rest prescribed by a physician. Additionally, the January 2010 VA examination report notes that incapacitating episodes are not due to intervetebral disc syndrome. As such, the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 through September 25, 2003, cannot serve as a basis for an increased rating on the basis of incapacitating episodes. Under the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 through September 25, 2003, the Board must also consider whether separate evaluations for chronic orthopedic and neurologic manifestations of the appellant's service-connected back disability, when combined under 38 C.F.R. § 4.25 with evaluations for all of his other disabilities, results in a higher combined disability rating. As previously discussed, the evidence of record supports a finding of severe limitation of lumbar motion under Diagnostic Code 5292, which accounts for additional functional limitation due to factors such as pain, weakness and fatigability. Such limitation of motion warrants a 40 percent evaluation. As already demonstrated, no other diagnostic code predicated on limitation of motion affords a rating in excess of that amount. Thus, a 40 percent rating for orthopedic manifestations of the appellant's low back disability is for application. The Board will now determine an appropriate rating for the appellant's neurological manifestations of his service- connected low back disability. In the present case, the objective neurological findings relate to the lower extremities. Thus, Diagnostic Codes 8520-8530 are potentially applicable. The Board finds a basis for a 10 percent evaluation for the neurologic manifestations of the appellant's low back disability during the period in question under Diagnostic Code 8520. In this regard, in the medical evidence dating after the September 23, 2002, the effective date of the revised Diagnostic Code, the appellant has made consistent complaints of radicular symptoms, and diminished sensation of the lower extremities has been shown. The January 2010 VA examination report indicates the appellant reported having pain that radiates to his right thigh and left foot, and numbness in the right thigh and left leg to foot. The report notes that the appellant's left foot may drag when walking. The January 2010 VA examiner found the appellant had decreased vibratory sense bilaterally in the distal feet and toes. The June 2009 VA examination report indicates the appellant complained of numbness down his left thigh and left foot. The June 2009 VA examiner noted that electromyography (EMG) of the lower extremity showed a mild chronic old bilateral L5-S1 radiculopathy. A March 2007 EMG report reflects that the appellant had an abnormal study with findings suggestive of a chronic, proximal, neurogenic injury in the left lumbosacral region, most likely at the level of the L5 nerve. A January 2008 private medical record reflects that a sensory examination revealed normal sensation in all dermatomal regions bilateral upper and lower extremities. Motor strength was normal in all myotal regions of the bilateral upper and lower extremities. Fine motor coordination was normal, and gait was normal. The March 2007 VA fee-basis examination report reflects that the appellant had decreased fine touch sensation on the lateral aspect of the lower left leg. A July 2005 private medical record indicates the appellant reported having numbness in his left leg. Consequently, the Board finds that an evaluation of 10 percent for "mild" neurological symptoms of the left and right lower extremities is warranted. In sum, as instructed by the revised version of Diagnostic Code 5293, in effect from September 23, 2002 through September 25, 2003, the Board has considered the chronic orthopedic and neurologic manifestations of the appellant's degenerative disc disease of the lumbar spine. It has been determined that the appellant is entitled to a 40 percent rating under Diagnostic Code 5292 for his orthopedic manifestations, and that he is entitled to a 10 percent evaluation for neurologic manifestations in the left and right lower extremities. The separate orthopedic manifestation and neurologic manifestation ratings must now be combined under 38 C.F.R. § 4.25, along with all other service-connected disabilities. As the appellant has no other service-connected disabilities, only the orthopedic and neurologic manifestation ratings must be combined. Applying the Combined Ratings Table of 38 C.F.R. § 4.25 to the appellant's ratings as set forth above, a combined evaluation of 70 percent is derived, effective September 23, 2002. This combined rating exceeds 40 percent and is thus more favorable to the appellant. Therefore, the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 through September 25, 2003, does entitle the appellant to an increased combined service- connected disability evaluation if he is rated separately for the orthopedic and neurologic manifestations of the disability at issue. As such, the evidence supports a 40 percent rating for the orthopedic manifestations of the disability at issue, and the grant of a separate 10 percent ratings for the neurologic manifestations of the disability at issue in the right and left lower extremities, for the period from September 23, 2002 to September 25, 2003. As discussed above, there is no basis for separate evaluations in excess of those amounts. As noted above, the Diagnostic Code was revised effective September 26, 2003. A preponderance of the evidence of record is against an evaluation in excess of 40 percent for the disability at issue based on the general rating formula for disease or injury of the spine, effective September 26, 2003, for Diagnostic Codes 5237 and 5243. Indeed, a finding of unfavorable ankylosis of the entire thoracolumbar spine is required in order for the appellant to qualify for the next- higher 50 percent evaluation and no such clinical finding is of record. Thus, applying the facts to the criteria set forth above, the appellant remains entitled to no more than a 40 percent evaluation for his service-connected low back disability for the period from September 26, 2003 under the General Rating Formula for Diseases and Injuries of the Spine. The appellant had several VA examinations from January 2005 to January 2010. The January 2005 VA examination report reflects that the appellant's back had forward flexion of 90 degrees with pain from 60 to 90 degrees. He could extend, bend and rotate to 30 degrees, with pain at the extremes. The appellant reported having flare-ups of spina conditions for periods of three to seven days at a time that severely limit his activity. He noted that he used a cane and crutches, and was able to walk more than 1/4 mile, but less than 1 mile. The March 2007 VA fee-basis examination report indicates the appellant's dorsolumbar spine had forward flexion of 70 degrees and extension of 10 degrees, right and left lateral flexion of 10 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 20 degrees, limited by pain and stiffness in the spine. Straight leg raise test was positive bilaterally. The June 2009 VA examination report reflects that the appellant's dorsolumbar spine had flexion of 90 degrees, extension of 30 degrees, right lateral flexion of 30 degrees, left lateral flexion of 30 degrees, right lateral rotation of 30 degrees, and left lateral rotation of 20 degrees secondary to pain at 20 degrees. He had pain at 90 degrees flexion and 30 degrees extension also. The appellant was assessed as having lumbar intervertebral disc syndrome. An MRI showed mild multilevel degenerative disc disease present, but no evidence of central spinal stenosis or neural foraminal stenosis. The January 2010 VA examination report reflects that the thoraco-lumbar spine had flexion of 60 degrees, extension of 15 degrees, left lateral flexion and rotation of 20 degrees, and right lateral flexion and rotation of 20 degrees. There was no objective evidence of pain on active range of motion. Lasegue' s sign was positive on both sides. The Board acknowledges the appellant's complaints of back and leg pain as documented above in the VA treatment records. As a general matter, in evaluating musculoskeletal disabilities, VA must determine whether the joint in question exhibits weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. See DeLuca, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45 (2009). However, where as here, a musculoskeletal disability is currently evaluated under the highest schedular evaluation available based on limitation of motion, a DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Thus, since the appellant has been granted the maximum rating possible under Diagnostic Code 5243, the analysis required by DeLuca would not result in a higher schedular rating. Therefore, based on the analysis of the criteria set forth above, the appellant remains entitled to no more than a 40 percent evaluation for the orthopedic manifestations of his service-connected lumbar spine disability, for the period from September 26, 2003. As instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, associated objective neurological abnormalities should continue to be rated separately under an appropriate diagnostic code. Thus, the 10 percent separate neurologic ratings established beginning September 23, 2002, remain intact. Also, the record does not reveal that the appellant reported any bladder or bowel complaints. The January 2010 VA examination report indicated the appellant reported having pain that radiated to his right thigh and left leg and had decreased vibratory sense bilaterally in the distal feet and toes. The June 2009 VA examination report reflects that the appellant had only mild chronic old bilateral L5-S1 radiculopathy. As the appellant has only mild symptoms, the evidence fails to support a rating in excess of that amount for the appellant's neurologic or other manifestations of his service-connected lumbar spine disability. Thus, from September 26, 2003, the appellant continues to be entitled to separate evaluations for orthopedic and neurologic manifestations of his service- connected lumbar spine disability. There is no basis for separate evaluations in excess of those amounts. The January 2010 VA examination report indicates the appellant's lumbar spine disability is not currently manifested by neck pain or headaches. The January 2010 VA examiner noted that neither condition was caused by or a result of his lumbar spine disability. The Board finds that the clinical evidence of record regarding the increased rating claim does not show distinct time periods exhibiting symptoms warranting further staged evaluations than as already shown by the record. Hart, 21 Vet. App. at 509-10. The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the appellant's low back disability is not inadequate. The appellant has not reported significant treatment, hospitalization or symptoms unaccounted for by the ratings schedule. There is no evidence of the effect of his low back disability on employment. As a result, it does not appear that the appellant has an "exceptional or unusual" disability. He does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. Therefore, the available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. In sum, the Board finds the appellant not entitled to an evaluation in excess of 40 percent for a lumbar spine disability during the period on appeal. The Board also finds that the appellant is entitled to separate 10 percent evaluations for neurologic manifestations of the lower left and lower right extremities, from September 23, 2002. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990). ORDER Entitlement to service connection for a right hip disability, claimed as secondary to a service-connected lumbar spine disability, is denied. An evaluation in excess of 40 percent for a lumbar spine disability is denied. A separate 10 percent rating for neurologic manifestations of the lower left extremity from September 23, 2002, is granted, subject to the applicable law governing the award of monetary benefits. A separate 10 percent rating for neurologic manifestations of the lower right extremity from September 23, 2002, is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs