Citation Nr: 1021033 Decision Date: 06/07/10 Archive Date: 06/21/10 DOCKET NO. 03-01 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 20 percent from July 16, 1999, through March 7, 2010, and in excess of 40 percent from March 8, 2010 for the orthopedic manifestations of a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from November 1994 to July 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2006, the Board denied entitlement to an initial rating in excess of 20 percent for lumbosacral strain. The Veteran appealed the case to the United States Court of Appeals for Veteran's Claims (Court). A Memorandum decision was received in May 2008, and the Court entered Judgment the following month, vacating the Board's February 2006 decision, and remanding the claim to the Board for readjudication consistent with the Memorandum decision. In October 2008, the Board remanded the claim for additional development, to include the obtainment of contemporaneous orthopedic and neurological examinations which were conducted in March 2010. In an April 2010 rating decision, the RO granted an increased rating of 40 percent for the Veteran's low back disorder, now classified as mild degenerative disc disease (DDD) and facet arthrosis at L5/S1 with annular bulge. The 40 percent rating was assigned effective from March 8, 2010. The April 2010, rating determination also assigned separate 10 percent ratings for lumbar radiculopathy of the right and left lower extremities. These 10 percent ratings were assigned effective from September 23, 2002 the date the change of pertinent rating criteria. The Veteran has not expressed disagreement with the grant of service connection for lumbar radiculopathy of the right and left lower extremities, nor the assignment of 10 percent ratings. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement (NOD) must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Therefore, those matters have been resolved and are no longer in appellate status and the issue on the title page has been recharacterized appropriately. In a May 2010 written brief presentation, the Veteran's service representative raised the issue of entitlement to a total disability rating based upon individual unemployability (TDIU). This issue has not been properly developed or certified for appellate consideration. This matter is referred to the RO for such further action as is deemed appropriate. FINDINGS OF FACT 1. For the period from July 16, 1999, through March 7, 2010, the Veteran low back disorder was classified as lumbosacral strain and was manifested by back pain and moderate limitation of motion of the lumbar spine; and the evidence preponderates against a finding that the service-connected lumbosacral strain was manifested by symptomatology of more than moderate severity or more than moderate functional impairment due to pain; nor was there evidence of ankylosis of the thoracolumbar spine. 2. For the period from March 8, 2010, the Veteran's low back disorder orthopedic manifestations are demonstrated by clinical findings of mild DDD and facet arthrosis at L5-S1 with annular bulge and marked limitation of motion; and the evidence preponderates against a finding that the service- connected low back disorder is manifested by more than severe symptomatology or more than moderate functional impairment due to pain; nor was there evidence of ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for mild DDD and facet arthrosis at L5/S1 with annular bulge for the period from July 16, 1999, through March 7, 2010 and in excess of 40 percent from March 8, 2010, are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 &Supp. 2009); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (prior to September 26, 2003), DC 5293 (prior to September 26, 2003); and DCs 5242 and 5243 (effective September 26, 2003, and currently). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in May 2002, January 2005, and November 2008) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in letters dated in March 2006, November 2008, and April 2010. Historical Background Service treatment records (STRs) include a January 1998 radiology report of an X-ray of the Veteran's lumbar spine. It was noted that he complained of low back pain radiating into his left leg. The radiologist's impression was evidence of DDD at L5-S1 with no evidence of compressive disk herniation at that level or other level and no spinal stenosis. There was also no evidence of fracture. A February 1998 magnetic resonance image (MRI) was positive for degenerative changes at L5-S1. The Veteran's back pain was treated with epidural injections. A December 1998 Medical Board report includes diagnoses of chronic low back pain and left sciatica, and secondary DDD and left sided radiculitis at L5-S1. A May 1999 private MRI report of the Veteran's lumbar spine includes an impression of disc signal alteration noted at L5- S1 consistent with DDD, no obvious disc bulge or herniation and no evidence for central, neural foraminal or lateral recess encroachment. Post service, the Veteran, who was 27 years old, underwent VA general medical examination in August 1999. According to the examination report, he complained of low back pain that started in1997 and said a physician diagnosed degenerative joint disease (DJD). On examination, his gait was non antalgic, without use of assistive devices, and he did not limp. Active range of motion of the lumbosacral spine was flexion to 75 degrees, extension to 30 degrees, and lateral flexion to 35 degrees, bilaterally, that the examiner reported was normal range of lumbosacral spine motion. There was some pain on palpation of the lumbosacral spine at L3-4 and L4-5. There were no bony or soft tissue abnormalities of the lumbosacral spine and no muscle spasm or fasciculation of the lumbosacral paraspinal muscles. The clinical assessment noted low back pain, with focal findings being some pain on palpation of the lumbosacral spine. There were no other significant focal neuromuscular or functional deficits noted. According to a November 1999 private treatment record from N.E.M., M.D., the Veteran complained of back pain and denied any leg radiating pain, burning, dysesthesias, or incontinence. He had no spasm of the low back. There were no abnormal contours with it. He could do a sit up without difficulty. On forward bending, the Veteran was able to get his fingertips within 4 inches of his toes. Backward bending was more painful, but was fuller. There was no problem with lateral bending in pain or limitation. Straight leg raise was negative. MRI of the back showed colorimetric changes at the L5-S1 disk consistent with degenerative disk disease. There was no neural encroachment, no stenosis and otherwise it appeared normal. The pertinent diagnosis was DDD. In an April 2002 written statement the Veteran requested re- evaluation of his knee and back disabilities and said he was unable to work due to his disabilities and recent motor vehicle accident. According to a May 2002 private medical record from C.J.N., M.D., the Veteran was seen for complaint of neck pain associated with an April 2002 rear-end collision that also aggravated his low back pain. Prescribed medication did not resolve his pain. He denied any bowel or bladder dysfunction and had some bilateral extremity weakness. It was noted that the Veteran had a history of mild chronic type low back pain at the time of the accident that was significantly increased after the accident. On examination, the Veteran had significant reduction in range of motion of his lumbar spine with increased lumbar paraspinal pain upon palpation. He had a positive straight leg raise, bilaterally, and pain with range of motion of his lumbar spine. It was noted that a MRI of the lumbar spine taken at the time, revealed degenerative disc disease that was mild at L5/S1 with a disc bulge at L5- S1. Diagnoses were intervertebral disc disorder of the cervical and lumbar spine, and degenerative disc lumbar spine. Treatment included epidural injection. VA outpatient treatment records, dated in May and June 2002, reflect the Veteran's complaints of neck and back pain. In June 2002, he reported that his back gave out several times a month, when he was unable to walk and lift with his arms. He rated his pain as a 10 on a scale of 1 to 10, and described radiating pain down his legs and from his neck into his arms. He denied numbness/tingling, but had profound weakness with pain that resolved when the pain was gone. He recently received an epidural injection without improvement. X-rays taken at the time showed unremarkable lumbar and cervical spines. The Veteran underwent VA orthopedic examination in July 2002. According to the examination report, he gave a history of low back pain that radiated to his left leg and sometimes up to his spine, with occasional perceptions of leg weakness that never led to falling. He still had these symptoms that worsened and were constantly present, to some extent at a relatively low level of intensity. Once or twice a month his back went out, that was an exacerbation of the intensity of back pain, lasted about two days, and involved use of rest, local heat and prescribed medication to get him back to his steady state. He also recently had two epidural steroid injections with some degree of improvement. The Veteran's back pain limited his ability to bend, lift, participate in sports or hobbies or walk, or sit comfortably for more than 15 or 10 minutes. He was unemployed, not due to back pain, but due to additional symptoms incurred in an April 2002 motor vehicle accident. He was employed full time before that situation. On examination, the Veteran had bilateral knee pain and walked with a guarded gait. Straight leg raising testing was negative in the sitting position and produced complaints of low back pain at almost 90 degrees. Straight leg testing in the supine position produced a complaint of pain at a level of between 60 and 75 degrees on each side. Range of motion of the lumbar spine was flexion to 60 degrees, extension to 15 degrees, and lateral bending to 30 degrees, bilaterally. Rotation was adequate and without complaints of pain. Diagnoses included mechanical low back pain and it was noted that recent X-rays did not show any arthritis or degenerative changes. During his March 2003 personal hearing at the RO, the Veteran complained of having spasms and radiating pain into his legs, several times a month that required bedrest for several days. During the hearing, the Veteran's accredited representative suggested consideration of the Veteran's service-connected back disability under DC 5293 that evaluates intervertebral disc syndrome (IDS). The Veteran underwent VA orthopedic examination in April 2004. According to the examination report, the Veteran complained of constant low back pain that radiated to his legs. He had increased intensity with flare ups that occurred with long standing or sitting, or bending. He avoided lifting. He took pain medication. The Veteran denied numbness, weakness, and bladder or bowel complaints. He had some erectile dysfunction. He was able to achieve an erection but lost it with back pain. He did not walk with assistive devices and denied having back surgery. The Veteran was able to bathe and dress himself. He worked as a bus driver and missed a few days in the past year due to his back disability. On examination, there was no spinal deformity noted. Forward flexion of the dorsolumbar spine was to 60 degrees (out of 90 degrees), backward extension was to 10 degrees (out of 30 degrees), lateral flexion was to 10 degrees (out of 30 degrees bilaterally) and rotation was to 20 degrees (out of 45 degrees bilaterally). All the movements caused pain and the Veteran stopped when the pain started. There was no fatigue, weakness or lack of endurance and no increase in loss of range of motion with repetitive movements. The examiner stated that any estimate of loss of motion from a flare up would be pure speculation. There was no spasm, weakness or tenderness and no postural abnormalities noted. Neurological examination findings were physiological. As to IDS, the VA examiner noted that the Veteran had MRIs that showed DDD and had radiating pain into his legs, but the VA examiner reported that no intervertebral disc symptoms were seen during the current examination. The diagnosis was DDD with residuals. An April 2004 private MRI report of the Veteran's lumbar spine includes an impression of mild degenerative changes at L5-S1 with a small central protrusion that was not compressive. According to private medical records dated in May 2004, the Veteran was referred to T.H.R., M.D., for evaluation of lower back pain with radiation into the legs, associated with pain and numbness. The Veteran's symptoms were typically brought on with physical activity and prolonged sitting also exacerbated his symptoms. It was noted that the Veteran's symptoms started in service, but increased after a rear-end collision. Findings of an electromyography (EMG)/nerve conduction study (NCV) indicated an abnormal study that gave evidence suggestive of right S1 radiculopathy. In a May 2004 written statement, Dr. T.H.R. said the Veteran had symptoms of lower back pain with radiation of bilateral numbness to his buttocks and legs. The Veteran worked as a bus driver and prolonged sitting exacerbated his symptoms, particularly his numbness. However, if he was active and changing positions constantly, he hardly had any symptoms at all. Dr. T.H.R. said the Veteran had S1 radiculopathy by nerve conduction EMG study and L5-S1 disc degeneration with minimal focal central protrusion and no compression. In a February 2005 letter, Dr. T.H.R. said he treated the Veteran for S1 radiculopathy that caused bilateral lower extremity pain that was moderate to severe in severity. The diagnosis was confirmed by MRI and EMG/NCV findings. Treatment included physical therapy and prescribed medication ( which made him drowsy). Dr. T.H.R. stated that the Veteran currently worked as a bus driver and prolonged sitting affected his physical condition. According to this physician, the Veteran's symptoms progressively worsened and his currently employment was a direct trigger for worsening his existing condition. Dr. T.H.R. said that the Veteran's condition was currently "moderate" and did not require surgical intervention. In February 2005, the Veteran underwent VA orthopedic examination. According to the examination report, the VA examiner reviewed the Veteran's medical records and noted the April 2004 VA examination report, described above. The Veteran complained of constant back pain. He had intermittent but recurrent radiating pain down the back of both legs and numbness to his feet, bilaterally. He took a variety of pain medications and said lying down provided some relief. He had no real specific flare-ups and had increased pain with any kind of weight bearing, standing, walking, etc., that worsened the longer he was up. Further, there were no incapacitating episodes in the last year with the Veteran ordered to bed for any length of time by his physician. He complained of erectile dysfunction that he said was due to pain he had in his back. He also felt as though he had to defecate and urinate but when he felt that he eliminated appropriately and did not soil himself. He had no evidence of incontinence according to the history. The Veteran said he really did not do any kind of walking or running or any kind of long period of time ambulation activities due to his back. He did not use a cane, crutches or a walker. He did not wear a back brace. He used a back support when he worked driving a bus. He said he could probably walk or stand for 15 to 20 minutes. He denied any unsteadiness, aside from his first steps in the morning after lying down and had no history of falls. Functionally, the Veteran had pain with any of his activities. He had no problem with his activities of daily living. He lost about 30 days in the past year from his bus driver position due to problems driving and the aggravation of twisting, bending, and stooping. He was unable to do any recreational activities and was unable to do much in the way of chores around the house due to his problem. On examination, the Veteran's back was normal. He had midline tenderness in the entire lumbar area to direct palpation. He had tenderness over the right sacroiliac and the left sciatic notch areas, but not the left sacroiliac and right sciatic notch areas. Range of motion was backward bend to about 15 degrees when he complained of pain and stiffness and stopped. Lateral bending was to 25 degrees with complaints of pain at that point. Rotation was to 45 degrees in each direction with a lot of pain reported at that point. Forward bending was to 60 degrees with pain at that point. There was no change with repetitive motion. Strength in the lower extremities, testing against resistance and activity, elicited a response of pain with wincing in the back. It was noted that it seemed to be worse in the right leg than in the left leg. Knee and ankle jerks were intact and symmetrical, bilaterally. Neurological examination revealed the Veteran was able to perceive light touch symmetrically and equally over both lower extremities. The VA examiner noted that a recent MRI showed some diffuse bulging discs with a prominent disc bulge at the L5-S1 area with degenerative changes at L5-S1 and other discs in the lumbar spine area. The diagnosis was degenerative disc disease/degenerative joint disease of the lumbar spine with lumbar strain and residuals. In a February 2005 written medical evaluation, C.N.B., M.D., a neurologist, said he reviewed the Veteran's medical records for the purpose of making a medical opinion regarding the Veteran's spine injury. Dr. B. said he reviewed post service medical records, imaging reports, other medical opinions, a December 2004 statement from the Veteran and medical literature. He specifically listed excerpts of January and February 1998 medical records, the May 2002 statement from Dr. N., the April 2004 MRI report, May 2004 EMG report, and a December 2004 statement from the Veteran. In Dr. B.'s opinion, the Veteran's back was currently underrated and should be rated as "40 to 60 percent medical diagnostic code category based on his EMG/MRI documented sciatica and radiculopathy". In a July 2005 written statement signed by Dr. T.H.R. and a physician's assistant, it was noted that the Veteran had a history of chronic back pain with radiation to the bilateral lower extremities that was worsened by prolonged sitting and standing. The Veteran also had significant numbness in the bilateral lower extremities with extension of the bilateral lower extremities. Dr. T.H.R. wondered if the Veteran was provided with a full neurological examination. It was noted that the Veteran had intact sensation on examination but did not confirm findings were inconsistent with radiculopathy. According to Dr. T.H.R., the Veteran's reflexes were intact clinically, but that did not rule out the presence of radiculopathy. The Veteran's current occupation required prolonged periods of sitting, as a bus driver. He was unable to medications that addressed his symptoms as they caused drowsiness. In sum, Dr. T.H.R. reported clinical findings consistent with lumbar and S1 radiculopathy confirmed by MRI, EMG and nerve conduction findings. In an August 2005 written statement, the Veteran's wife reported that he was constantly bother with back and leg problems. She said he experienced difficulty sleeping and had morning pain and stiffness. Private treatment records dated from 2006 through 2008 reflect continued treatment for low back complaints. Specifically, when seen by P.R.M., M.D., in December 2006, the Veteran was seen for lumbosacral and cervical radiculopathies. He had had an EMG which showed evidence of right S1 radiculopathy and a mild disc bulge at the L5-S1 level. He was in the middle of a 6 week course of physical therapy which he thought was helping him. The examiner noted that he was being seen at this time due to a recent exacerbation of his pain. He had developed severe lower back and lower extremity pain to the point where he was unable to walk. While this had resolved, he was concerned that it might happen again. The Veteran was seen for similar complaints by in February 2007. He was encouraged to continued with strengthening exercises for his back and with his medications. He was to follow-up in 3 months. In 2008, his gait and station were normal. In employer records (showing that the Veteran was bus operator with the Charlotte Area Transit System) submitted in January 2009, it was reported that the Veteran showed that he missed 35 days of work from January 2006 through January 2007, 28 days from January 2007 through January 2008, and 36 days from January 2008 through January 2009. These absences were attributed to personal days, vacations days, sick days, and pursuant to the Family Medical leave Act (FMLA). In his submitting statement, he alleged that some of his supervisors reported sick days as FMLA days. The evidence received denotes a total of 22 1/2 days under FMLA, but it does not provide any further detail as to the underlying reasons for the absences taken under the FMLA. The evidence shows 11 days taken as sick days. Upon VA orthopedic examination in March 2010, the examiner noted that the claims file was reviewed. It was noted that the Veteran had initially injured his spine in 1994. There was no specific accident, but the Veteran related it to doing a lot of running and lifting. He had had no back surgery and did not wear a back brace. He denied any incontinence of bowel or bladder and any incapacitating episodes. The pain radiated to his feet bilaterally on a constant basis, and he had bilateral lower extremity weakness. The Veteran took numerous medications for his symptoms which helped somewhat. All of them made him drowsy. He was made worse by sitting with his legs elevated an sitting in general while driving a bus. After 30 minutes of sitting, his symptoms bothered him. He could walk 10 minutes and stand for 15 minutes. The cold bothered him as well. He was made better by medications and "time." He flared up about one time per month. He had difficulty with his activities of daily living such as putting on shoes. He had to sit to wash his lower extremities. The bouncing of the bus that he drove for a living also hurt his back. On physical examination, flexion was from 0-30 degrees. This diminished to 0-20 with repetition. Extension was 0-10 degrees. The Claimant could bend to either side 0-25 degrees and rotate to either side 0-30 degrees. Other than flexion, there was no change with repetition. There was pain at the end range of all ranges test. Lower extremity strength revealed grade 5- strength on both side proximally with back pain and grade 5 strength distally bilaterally. Sensation revealed diminished sensation to light touch throughout the remainder of the lower extremities. Deep tendon reflexes were grade 2+ at the knees, 1+ at the ankles, and the toes were downgoing. Toe proprioception was intact. He had a positive straight leg raise bilaterally. He could "up and down' on his toes 5 times. He walked with a normal gait. MRI of the lumbar spine in 2008 showed mild DJD and facet arthrosis at L4-S1 with annular bulge and small broad based right paramedian disc protrusion. The examiner noted that his review of the claims file that there were reports of an EMG in 2006 showing a right S1 radiculopathy. The examiner's impression was of mild DDD and facet arthrosis at L5-S1 with annular bulge. The examiner added that he had been asked to express and opinion whether it was at least as likely as not that the Veteran's service-connected back condition resulted in a marked interference with his employment as a bus driver. Prolonged sitting and the bouncing of the bus caused him pain. As to whether these activities caused a marked interference with his employment, the examiner noted that pain was an entirely subjective sensation and the best it could be stated was that "I cannot state as to how much interference it performs with his occupation without resort to mere speculation." VA neurological examination report from March 2010 shows that the claims file was reviewed. The diagnosis was the same as the orthopedic evaluation. Legal Criteria In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the Veteran's service medical records and all other evidence of record pertaining to the history of his service- connected joint disabilities, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is inadequate for rating purposes. 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. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.10 (2009). Not all disabilities will show all the findings specified in the rating criteria but coordination of the rating with functional impairment is required. 38 C.F.R. § 4.21 (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. 38 C.F.R. § 4.7 (2009). The Veteran's entire history is reviewed when making a disability rating. 38 C.F.R. § 4.1 (2009). The Board notes that the September 1999 rating decision granted service connection and the currently assigned 20 percent disability evaluation. In November 1999, the RO received the Veteran's notice of disagreement with the disability evaluation awarded to his service-connected back disability. The U.S. Court of Appeals for Veterans Claims has addressed the distinction between a Veteran's dissatisfaction with the initial rating assigned following a grant of entitlement to compensation, and a later claim for an increased rating. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court noted that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) as to the primary importance of the present level of disability, is not necessarily applicable to the assignment of an initial rating following an original award of service connection for that disability. Rather, the Court held that, at the time of an initial rating, separate ratings could be assigned for separate periods of time based upon the facts found - a practice known as assigning "staged" ratings. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In Meek v. West, 12 Vet. App. 352 (1999), the Court reaffirmed the staged ratings principle of Fenderson and specifically found that 38 U.S.C.A. § 5110 (West 2002 & Supp 2009) and its implementing regulations did not require that the final rating be effective the date of the claim. Rather, the law must be taken at its plain meaning, and the plain meaning of the requirement that the effective date be determined in accordance with facts found is that the disability rating must change to reflect the severity of the disability as shown by the facts from time to time. In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2009). Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45 (2009). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2009). The Board recognizes that the Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995) held that, where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45 (2009). The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and/or impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Board notes, however, that the Court has held that section 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board observes that the words "slight", "moderate", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2009). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002 and Supp. 2009); 38 C.F.R. §§ 4.2, 4.6 (2009). Except as otherwise provided in the Rating Schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. § 4.14 (2009); see Esteban v. Brown, 6 Vet. App. 259 (1994). The critical inquiry in making such a determination is whether any of the symptomatology is duplicative or overlapping; the appellant is entitled to a combined rating where the symptomatology is distinct and separate. Esteban, supra. During the pendency of the Veteran's claim and appeal, the rating criteria for evaluating IDS were amended. 38 C.F.R. § 4.71a, DC 5293, effective September 23, 2002. See 67 Fed. Reg. 54,345-49 (Aug. 22, 2002). In 2003, further amendments were made for evaluating disabilities of the spine. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2003)). An omission was then corrected by reinserting two missing notes. See 69 Fed. Reg. 32,449 (June 10, 2004). The latter amendment and subsequent correction were made effective from September 26, 2003. Where a law or regulation (particularly those pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The effective date rule established by 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2009), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. The Veteran does get the benefit of having both the old regulation and the new regulation considered for the period before and after the change was made. Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the pertinent amended regulations). Accordingly, the Board will review the disability rating under the old and new criteria. The RO evaluated the Veteran's claim under the old regulations in making its rating decisions dated in November 1999 and September 2002. The December 1999, December 2002 and January 2003 SOCs evaluated the Veteran's claim using the old regulations. In May 2004, the RO issued an SSOC that evaluated the Veteran's claim using the new regulations effective from September 26, 2003. The Veteran was afforded an opportunity to comment on the RO's action. Accordingly, there is no prejudice to the Veteran in our proceeding under Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). The Veteran's service-connected back disability was evaluated under DC 5003-5295. Hyphenated DCs are used when a rating under one diagnostic code requires use of an additional DC to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27 (2009). The hyphenated DC in this case indicates that degenerative arthritis under DC 5003 is the service-connected disorder, and impairment of the lumbosacral spine under DC 5295 is a residual condition. Under DC 5003, degenerative arthritis (hypertrophic or osteoarthritis), established by X-ray findings, is rated on the basis of the limitation of motion under the appropriate DC for the specific joint or joints involved. Normal range of motion of the thoracolumbar spine is flexion- extension from 0 to 90 degrees and 0 to 30 degrees; lateral flexion from 0 to 30 degrees and rotation from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Under the old regulations, effective prior to September 2003, under DC 5295, a 20 percent rating was warranted for lumbosacral strain where there was muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. 38 C.F.R. § 4.71a, DC 5295, effective prior to September 26, 2003. A 40 percent evaluation required severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion. Id. Under DC 5292, limitation of motion in the lumbar spine was assigned a 40 percent rating when severe, a 20 percent rating when moderate, and a 10 percent rating when slight. 38 C.F.R. § 4.71a, DC 5292 (2002), effective prior to September 26, 2003. Under the old regulations for DC 5293, in effect before September 23, 2002, a 20 percent evaluation was warranted for IDS if the disability was moderate with recurring attacks. 38 C.F.R. § 4.71a, DC 5293, effective prior to September 23, 2002. A 40 percent evaluation was assigned if it is severe with recurring attacks with intermittent relief. Id. An evaluation of 60 percent was warranted when the disability was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Id. Under the current rating criteria, that became effective on September 26, 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine. See 68 Fed. Reg. 51,454-51,458 (Aug. 27, 2003); 69 Fed. Reg. 32,449, 32,450) (June 10, 2004) (codified at 38 C.F.R. § 4.71a, DCs 5235 to 5343 (2009)). Under the revised criteria, lumbosacral strain is evaluated under DC 5237. Under the current regulations, a 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. Id. A 20 percent evaluation is appropriate 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 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. Id. These evaluations are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. (This clearly implies that the factors for consideration under the holding in DeLuca v. Brown, supra, are now contemplated in the rating assigned under the general rating formula.) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate diagnostic code. Id., Note (1). However, there is no showing that the Veteran objectively manifested neurologic symptoms as a consequence of his service-connected lumbar spine disorder. Nor is there medical evidence of record to reflect that he had forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent evaluation under the regulations currently in effect. Ankylosis, whether favorable or unfavorable, involves fixation of the spine. Id. at 51,457, Note (5). Ankylosis has been defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Dorland's Illustrated Medical Dictionary 86 (28th ed. 1994). Under the new regulations, effective September 26, 2003, DC 5289 provides that a 40 percent rating will be assigned for ankylosis of the lumbar spine at a favorable angle, and a 50 percent rating assigned for ankylosis at an unfavorable angle. 38 C.F.R. § 4.71a, DC 5289 (2009). Under the revised regulations, IDS is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under section 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. However, the total medical evidence of record is entirely negative for any reference to a current diagnosis of intervertebral disc syndrome. While Dr. C.J.N.'s May 2002 record diagnosed intervertebral disc disorder of the cervical and lumbar spines, in April 2004, a VA examiner found no intervertebral disc symptoms during the examination. More important, the February 2005 VA examination report expressly indicates that the Veteran denied experiencing any incapacitating episodes associated with his service-connected lumbosacral spine disability. These evaluations are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. DeLuca v. Brown, supra. Analysis - In Excess of 20 Percent For the Period from July 16, 1999, through March 7, 2010 Upon review of the probative medical evidence of record, the Board has determined that an initial rating in excess of the currently assigned 20 percent evaluation is not warranted for the period from July 16, 1999, through March 7, 2010. After reviewing the new criteria and regulations found at 68 Fed. Reg. 51,454, the Board finds that the new rating criteria are less favorable than the old regulations at 38 C.F.R. § 4.71a (2009). Although the Veteran's gait was abnormal, the evidence shows that this was not entirely due to his back disorder, but also evidently associated with other service-connected (knee) disabilities (July 2002 VA examination). Flexion of the lumbar spine was normal (in August 1999) and to 60 degrees (at the July 2002, April 2004 and February 2005 VA examinations), and combined limitation of motion was to 120 degrees, with consideration of pain as a mitigating factor (at the February 2005 VA examination). DeLuca, supra. The April 2004 VA examination also reflects that the Veteran had no spinal deformity. Also, no scoliosis, reversed lordosis, or abnormal kyphosis has ever been manifested. Thus, not only would the Veteran not be entitled to a 40 percent or higher rating under the new criteria (because ankylosis, or forward flexion limited to 30 degrees or less is never shown to have been manifested), he would not even be entitled to the 20 percent rating he now carries. Thus, rating the Veteran's lumbosacral strain under new DC 5237 and the new "General Rating Formula for Diseases and Injuries of the Spine" is clearly less favorable than rating his disability under the old regulations at 38 C.F.R. § 4.71a (2002). VAOGCPREC 3- 2000. In this case then, the Veteran's claim is to be evaluated under the regulations in effect prior to September 26, 2003. Lumbosacral strain was evaluated as 20 percent disabling when there was a disability picture consistent with: muscle spasm on extreme forward bending, a loss of lateral spine motion, unilateral, in the standing position. Lumbosacral strain that was severe was assigned a 40 percent rating. Severe strain contemplated listing of the whole spine to the opposite side, a positive Goldthwaite's sign, a marked limitation of forward bending in standing position, a loss of lateral motion with osteo-arthritic changes, or a narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002 & Supp. 2009). A 40 percent rating was also available for severe limitation of lumbar motion under DC 5292 (2002). However, even though it is facially easier to obtain a 40 percent rating under the criteria in effect prior to September 26, 2003, than it would if evaluated under the new criteria, the preponderance of the evidence still is against an initial rating higher than 20 percent for a lumbosacral strain disability. This is because severe limitation of motion is not shown by the objective medical evidence of record. Also, none of the criteria enumerated at DC 5295 as representative of a severe lumbosacral strain disability are shown, either. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40 (2009). The Board finds that the effects of pain reasonably shown to be due to the Veteran's lumbosacral strain are contemplated in the currently assigned 20 percent rating. There is no indication that pain, due to disability of the lumbar spine, causes functional loss greater than that contemplated by the 20 percent evaluation now assigned. 38 C.F.R. § 4.40, 4.45; DeLuca, supra. The Board notes that the Veteran has argued that his service- connected disability would be more appropriately rated under DC 5293, for IDS, however, as set forth above, the evidence on file does not reflect disability or functional impairment to the extent to warrant a rating in excess of 20 percent under the old or current rating criteria for IDS. Dr. T.H.R.'s February 2005 written statement describes the Veteran's disability as moderate in severity and is, thus, consistent with current Board evaluation. While in his July 2005 written statement, Dr. T.H.R. reiterated that the Veteran had clinical findings consistent with lumbar and S1 radiculopathy, nothing in his statement described the Veteran as having severe disability. Although Dr. C.N.B. opined that the Veteran's back disability should be evaluated as 40 to 60 percent disabling, it is unclear to what code the physician referred. More important, Dr. C.N.B. did not examine the Veteran and this opinion is, thus, accorded less weight that the VA examiners and other physicians who did examined the Veteran and based medical opinions of current severity on clinical findings. The Board concludes that the objective medical evidence of record preponderates against a finding that the Veteran's lumbosacral spine disability warrants a rating in excess of 20 percent for the period from July 16, 1999, through March 7, 2010. The Board does not find that the evidence is so evenly balanced that there should be doubt as to any material issue regarding the matter of a rating in excess of 20 percent for the service-connected low back disorder. The preponderance of the evidence is clearly against the claim. 38 U.S.C.A. § 5107 (old and new version). In Excess of 40 Percent For the Period From March 8, 2010 As reported earlier, upon rating decision in April 2010, an increased rating of 40 percent was assigned to the Veteran's low back disability effective March 8, 2010. Moreover, as indicated earlier, service connection was granted at that time for lumbar radiculopathies of the right and left lower extremities. Separate 10 percent ratings were assigned, effective from September 23, 2002, based on new rating criteria for spinal conditions requiring consideration of entitlement to a greater rating based on the combination of orthopedic and neurological manifestations. The evidence shows that as of March 8, 2010, the date of VA exam, the Veteran's low back disability showed marked limitation of motion. There was a significant increase in loss of motion when compared to previous clinical findings, to include upon VA evaluation in 2005. See DC 5293, in effect prior to September 23, 2002. Moreover, it may be said that the evidence from March 8, 2010, to include evidence that narrowing of joint space was advanced, and with severe degenerative changes shown on imaging studies, and limitation of motion to less than 60 degrees on forward flexion is indicative of a disability picture more closely corresponding to a 40 percent disability rating under DC 5295, the criteria in effect prior to September 2003. A disability rating in excess of 40 percent under the former rating criteria is not warranted as 40 percent was the maximum disability rating under DCs 5292 and 5295, and unfavorable ankylosis was not shown. Nor is a rating in excess of 40 percent under DC 5293 warranted, as pronounced disability wit persistent symptoms of sciatica were not demonstrated prior to the changes to the rating criteria in September 2002. While the Veteran has exhibited neurological symptoms, those symptoms have been localized to the site of each lower extremity and he has been separately service-connected for those conditions. As such, the Board finds that they are more appropriately addressed by a separate rating as directed by Note (1) to the General Rating Formula. Under the current rating criteria, whether those related to limitation of motion or those related to incapacitating episodes resulting from IDS, a disability rating in excess of 40 percent is also not warranted. As noted above, neurological manifestations of a low back disability are rated using separate criteria, and he is already service- connected for such. In order to warrant the next higher (50 percent) disability rating under the General Rating Formula, unfavorable ankylosis of the entire thoracolumbar spine must be shown. As ankylosis of the Veteran's spine, whether favorable or unfavorable, has not been shown, an increased rating under the General Rating Formula is not warranted. A rating for IDS is based on incapacitating episodes and the next higher (60 percent rating) would require incapacitating episodes with a total duration of at least 6 weeks over the past 12 months. However, as the Veteran has denied experiencing any incapacitating episodes, an increased rating under DC 5243 is also not warranted. Consideration of 38 C.F.R. § 3.321 The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, as to the periods in question, the Board finds that the evidence does not present such an exceptional or usual disability picture "as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2009). While the Veteran and his representative have argued that the Veteran's low back symptoms made his work as a bus driver difficult and caused many absences, it is noted that the evidence of record does not reflect the severity of such that this presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2002). Specifically, it is noted that the Veteran complained in 2004 and 2005 that his employment as a bus driver was made more difficult with prolonged sitting. It is also noted that he alleged in 2005 that he missed approximately 30 days of work due to his back symptoms. The record does not reflect that he was hospitalized during this period or actually how many days he missed from work. Actual records of absences from 2006 through 2009 do not reflect marked interference with the Veteran's employment. In actuality, the record shows that the Veteran missed very few days for this 3 year period as a result of "sick" days. While he missed 22 1/2 days in 3 years under FMLA, it is impossible to tell from the current record whether such absences were the result of his back symptoms. And, at any rate, it is the Board's conclusion that missing 22 1/2 days from work in 3 years does not represent marked interference with employment for the period from 2006 through 2009. Moreover, it is clear that his back manifestations have not necessitated frequent periods of hospitalization for any period in question. In the absence of such factors, the Board is not required to further discuss the possible application of 38 C.F.R. § 3.321(b)(1) (2009). Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Here, the rating criteria reasonable describe the Veteran's disability levels and symptomatology, and provide for higher ratings for more severe symptoms. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. While the record indicates that the Veteran's back symptoms make his work more difficult, and his representative has recently asserted that he is unable to work as a result of his service-connected disability, this factor is more appropriately addressed by adjudication of the claim for TDIU. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1) (2009). ORDER Entitlement to an initial rating in excess of 20 percent from July 16, 1999, through March 7, 2010, and in excess of 40 percent from March 8, 2010, for the orthopedic manifestations of a low back disorder, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs