Citation Nr: 1120832 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 04-06 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for the residuals of a left leg and hip injury, to include as secondary to the Veteran's service connected low back disability. 2. Entitlement to an initial disability rating in excess of 20 percent for a low back disability, herniated nucleus pulposus at L5-S1, with narrowing of the L4-5 disc space. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. A. Klein, Associate Counsel INTRODUCTION The Veteran had active service from March 1964 to March 1968 and from July 1968 to June 1989. This appeal comes to the Board of Veterans' Appeals (Board) from the April 2002 and March 2003 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, inter alia, granted the Veteran's initial claim for a low back disability at a 20 percent disability rating and denied the Veteran's claim for service connection for a left leg and hip disorder. In May 2005, the Veteran testified at a hearing on appeal before a Veterans Law Judge at the RO (Travel Board hearing); a copy of the transcript is associated with the record. Subsequently, the Veterans Law Judge who presided over this hearing ceased his employment with the Board. In a June 2010 letter, the Board notified the Veteran that the law provides that the Veterans Law Judge who conducts a hearing in a case shall participate in the final determination of the Veteran's claim. 38 C.F.R. § 20.707 (2010). The letter offered the Veteran a new hearing. The Veteran responded later the same month and indicated that he wished to be provided with a new hearing regarding his claims. In March 2011, this hearing was provided and the Veteran testified before the undersigned Veterans Law Judge at the RO (Travel Board hearing); a copy of this transcript has also been associated with the record. This case previously reached the Board in November 2005, February 2008, and July 2010. In November 2005, the Board confirmed the agency of original jurisdiction's (AOJ) prior denial of service connection for a left hand injury, a microscopic scar of the left eye, and for a compensable initial evaluation for the residuals of a fracture of the head of the left 5th metatarsal. However, in the same decision the Board remanded the Veteran's claims for an initial compensable evaluation for a low back disorder, as well as service connection for a left leg and hip disorder. These same issues were remanded in the February 2008 and July 2010 Board decisions. As such, the initial rating for the low back and the issue of service connection for a left leg and hip disorder are the only issues that remain on appeal. These issues have now been returned to the Board for further appellate consideration. In September 2006, the RO granted the Veteran's claim for a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities with an effective date of October 25, 2005. The Board acknowledges the recent decision in Rice v. Shinseki, which held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. See 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. In this case, the issue of TDIU was fully adjudicated by the AOJ, and granted, during the pendency of this appeal. The Veteran has not appealed the any of the downstream elements of his grant of TDIU. The Veteran must separately appeal these downstream issues. See Grantham v. Brown, 114 F.3d 1156. 1158-59 (Fed. Cir. 1997). Therefore, the issue of TDIU is not before the Board at this time. FINDINGS OF FACT 1. There is competent evidence that the Veteran experiences the residuals of a fracture of the left femoral neck and a left side acetabular fracture. 2. There is an approximate balance of competent favorable and unfavorable evidence to relate the Veteran's current residuals of a left leg and hip injury to his service-connected low back disorder. 3. Under the pre-September 2002 criteria and September 2002 amendments, the Veteran's low back disorder, herniated nucleus pulposus at L5-S1, with narrowing of the L4-5 disc space, manifests with moderate symptoms with recurring attacks, but does not exhibit vertebral fracture, the requirement of a neck brace, favorable or unfavorable ankylosis, lumbosacral strain, sacro-iliac injury and weakness, or "severe" limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, even with consideration of pain and other functional loss. 4. Under the September 2002 and 2003 amendments, the Veteran's low back disorder, herniated nucleus pulposus at L5-S1, with narrowing of the L4-5 disc space, does not exhibit incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 5. Under the September 2003 amendments, the Veteran's low back disorder, herniated nucleus pulposus at L5-S1, with narrowing of the L4-5 disc space, even with consideration of his complaints of pain and other functional loss, does not cause forward flexion of the thoracolumbar spine to 30 degrees or less or any ankylosis. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the Veteran's residuals of a left leg and hip injury is proximately due to his service-connected low back disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 2. The criteria are not met for an initial disability rating in excess of 20 percent for the Veteran's service-connected low back disorder. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293 (in effect prior to and as of September 23, 2002), 5243 (in effect as of September 26, 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5100 et seq.; see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, regarding the Veteran's claim for service connection for a left leg and hip disability, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist in regards to the left leg and hip claim, such error was harmless and will not be discussed further. Regarding the Veteran's claim for an initial rating for a low back disorder in excess of 20 percent, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA). The duty to notify was accomplished by way of the VCAA letters from the AOJ to the Veteran dated in September 2002 and August 2010. Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his initial claim for service connection for a low back disorder; (2) informing him about the information and evidence VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This appeal stems from an initial rating assignment, and is not an original increased rating claim. Therefore, the additional section 5103(a) notice, in particular the notice for increased ratings described in the recent United States Court of Appeals for Veterans Claims (Court) case of in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), or in the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) case that vacated the Court's previous decision, Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), is simply not required here. Furthermore, the August 2010 letter from the AOJ further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007) (Dingess). Thus, the Veteran has received all required notice in this case, such that there is no error in the content of his VCAA notice. Concerning the timing of his VCAA notice, the Board sees the AOJ did not provide the Veteran all necessary Dingess-compliant notice prior to initially adjudicating his claim for service connection for a low back disorder in April 2002, the preferred sequence. However, in Pelegrini II, the Court clarified that in these situations VA does not have to vitiate that initial decision and start the whole adjudicatory process anew, as if that decision was never made. Rather, VA need only ensure that the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claim, such that the intended purpose of the notice is not frustrated and he is still provided proper due process. Id. 120. In other words, he must be given an opportunity to participate effectively in the processing of his claim. The Federal Circuit Court has held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA cured the timing notice after sending additional VCAA notice letters by readjudicating the case by way of the April 2010 SSOC. Therefore, since VA cured the timing error and because the Veteran did not challenge the sufficiency of his notice, the Board finds that VA complied with its duty to notify. In essence, the timing defect in the notices has been rectified by the latter readjudication. In addition, the Veteran has never alleged how any timing error has prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the timing of his VCAA notice. See Shinseki v. Sanders / Simmons, 129 S. Ct. 1696 (2009). However, with regard to the content of the notice provided, the claim at issue stems from an initial rating assignment. In this regard, the Court has held that an appellant's filing of a notice of disagreement (NOD) regarding an initial disability rating or effective date, such as the case here, does not trigger additional section 5103(a) notice. Indeed, the Court has determined that to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess at 491, 493, 500-501. The Court most recently clarified in Goodwin v. Peake, 22 Vet. App. 128, 137 (2008), that where a service connection claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream initial rating and effective date elements. In this regard, the Court emphasized its holding in Dingess that "once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. Thereafter, once a NOD has been filed, only the notice requirements for rating decisions and SOCs described within 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Id. In this case, service connection for the Veteran's low back disorder was granted and the disability rating and effective date assigned in the April 2002 rating decision. After the Veteran filed an NOD seeking a higher initial rating for his low back disorder, the additional notice requirements described within 38 U.S.C. §§ 5104 and 7105 were met by the January 2004 SOC, the subsequent May 2004, September 2007, and April 2010 SSOCs, the March 2010 notice letter, and the November 2005 and February 2008 Board decisions. Specifically, these documents have all provided the Veteran with a summary of the pertinent evidence as to the rating assigned to his low back disorder, a citation to the pertinent laws and regulations governing a higher rating for his low back disorder, and a summary of the reasons and bases for the AOJ's decision to deny a higher rating for his low back disorder. Thus, the Board concludes that a reasonable person in the Veteran's position would have known from the information he received what he was required to submit in order to substantiate his higher initial rating claim. See Mlechick v. Mansfield, 503 F.3d 1340, 1344 (Fed. Cir. 2007) (VCAA notice error not prejudicial when a reasonable person could be expected to understand what was needed). In addition, the Veteran's statements in his September 2002 NOD, his February 2004 substantive appeal (VA Form 9), his January 2008 and June 2010 Informal Briefs of the Appellant in the Appealed Case (Briefs), and at his May 2005 and March 2011 Board hearings demonstrate that he has actual knowledge of what evidence is required to meet the criteria for a higher initial rating for his low back disorder. See Mlechick, 503 F.3d at 1345 (notice error not prejudicial when claimant has actual knowledge of the evidence needed to substantiate claim). Therefore, the Board concludes prejudicial error in the content of VCAA notice has not been established. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). In addition to notification, VA is required to assist the Veteran in finding evidence to support his claim for an initial rating in excess of 20 percent for his low back disorder. See 38 U.S.C.A. § 5103A. The AOJ has secured the Veteran's service treatment records (STRs), the Veteran's VA medical treatment records, private treatment records identified by the Veteran, and four VA medical examinations concerning his low back disorder, along with various addenda to those opinions. The Veteran has submitted personal statements and hearing testimony. The Veteran has not provided authorization for VA to obtain any additional VA or private medical records, nor has he indicated that such records exist. Therefore, the Board concludes that the duty to assist the Veteran in gathering information to advance his claim has been met. Compliance with Prior Board Remands The Board is also satisfied as to substantial compliance with the prior remand directives of November 2005, February 2008, and July 2010, as those remands pertained to his claim for a higher initial rating for a low back disorder. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Stegall) (holding that a remand by the Board imposes upon the Secretary of Veterans Affairs a duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008) (indicating that substantial compliance is the applicable standard for review of Board remands). Here, the Board again notes that the Veteran's claim for service connection for a left leg and hip disorder is being granted and any notice and development failures, including failures of compliance with prior remand directives is thereby rendered moot. In this regard, the Veteran's claim was first remanded in November 2005. At that time, the Board requested that the AOJ provide the Veteran with a new VA medical examination which addressed the revisions to the relevant rating criteria. Specifically, the AOJ was to provide the Veteran with orthopedic and neurological examinations to address the new criteria for rating the low back, including incapacitating episodes and any functional loss due to the Veteran's low back disorder. The Veteran was provided with an examination in June 2006, which provided a full range of motion testing as well as well as reviewing additional functional limitation of motion due to pain, fatigue, weakness, or lack of endurance. The Veteran was provided with the requested neurological examination in May 2007. In February 2008, the Veteran's claims were returned to the Board. At that time, the Board remanded the Veteran's claims again, in part because the VA orthopedic examination had not provided any opinion as to incapacitating episodes. In March 2010, the June 2006 examiner provided an addendum to the original opinion, noting that there was no evidence of incapacitating episodes due to the Veteran's low back disorder. The Board notes that the June 2010 Brief, and the Veteran's representative at his hearing (see the March 2011 hearing transcript pges. 4, 22), have argued that the March 2010 opinion did not address the Board's remand directives. Specifically, the Veteran's representative has argued that the VA examiner only indicated that there was no record of incapacitating episodes, but did not indicate if the Veteran's low back disorder manifested with incapacitating episodes. First, the Board notes that by indicating that there is no evidence of such episodes, the VA examiner has clearly indicated that these episodes did not occur. That is to say, the examiner may only speak to the evidence available, and the evidence available to the June 2006 examiner indicated that the Veteran had not had any incapacitating episodes. Further, the Board notes that the Veteran has been afforded ample opportunity to provide evidence to contradict the VA orthopedic examiner's conclusion, but has not done so. In fact, the Veteran specifically indicated that he had not been prescribed bed rest for any specific period of time, that he only occasionally has to lie down or sit down, and he has not had any hospitalization for his low back disorder during the appeal period. See the March 2011 hearing transcript pges. 6, 17, 19. The Veteran is competent to indicate if he has been prescribed bed rest (particularly bed rest of at least 4 weeks duration in a 12 month period, as relevant for a rating in excess of 20 percent for his low back disorder). See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). As such, the VA medical examinations of June 2006 and May 2007 have provided at least substantial compliance with the November 2005 and February 2008 remand directives, such that the issues raised by the prior Board remands have been addressed. Furthermore, the Board concludes that the June 2006 VA orthopedic examination with the associated June 2006, May 2007, and March 2010 addenda, and the May 2007 VA neurological examination with the associated August 2007 and March 2010 addenda, have both provided a thorough review of the relevant manifestations of the Veteran's low back disorder, including limitations of motion, the functional affects of his service-connected disability, and the effects of his low back disorder on his employment and activities of daily living. Therefore, the VA medical examinations provided have been adequate for rating purposes. See 38 C.F.R. § 4.2. The Board concludes that the AOJ has fully complied with the duty to provide the Veteran with a VA medical examination and opinion that is adequate to address the service-connected low back disorder currently on appeal. The February 2008 Board remand also requested that the AOJ provide the Veteran notice consistent with the Court's decision in Vazquez-Flores v. Peake, 22 Vet. App. 37, by providing him with specific notice as to a rating in excess of 20 percent for the Veteran's low back disorder. However, the Board notes that the Court's decision has been vacated and, under the current standard, general notice is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d at 1277. As such, the AOJ provided the Veteran with a March 2010 VCAA notice letter which provided him with the relevant general notice. Furthermore, as related above, it is clear from the record that the Veteran is well aware of the requirements for a higher initial rating for his low back disorder, and has had ample opportunity to provide such evidence over the course of the appeal. Therefore, the Board concludes that there has been substantial compliance with this remand directive. The February 2008 Board remand also requested that the AOJ obtain all relevant treatment records identified by the Veteran in response to the March 2010 VCAA notice letter. The Veteran has not responded to this letter, nor has he indicated that further relevant treatment records which might impact his claim remain outstanding. In fact, at his March 2011 Board hearing the Veteran has indicated that his treatment regimen has remained stable, and in fact indicated that his disability has improved. See the hearing transcript pges. 4, 6, 7-8, 18, 20. In this regard, VA is generally required to obtain records that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(3). Relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) citation omitted. In this case, the Veteran has competently indicated that his low back treatment has been stable during the appeal period. See 38 C.F.R. § 3.159(c)(2). Therefore, the Board concludes that this remand directive has also been complied with. Finally, the Veteran was to be provided with final adjudication of his claim in light of any new evidence obtained. See the Board remands of November 2005 and February 2008. Such adjudications were provided subsequent to each remand in the September 2007 and April 2010 SSOCs. The Veteran's claim last came before the Board in July 2010. At that time, in response to a VA letter indicating that he was entitled to a new hearing by the Veteran's Law Judge who would decide his claim, the Veteran had requested a new hearing. To comply with the Veteran's request, the Board remanded the Veteran's claim to provide such a hearing. This hearing was provided to the Veteran in March 2011. As such, the July 2010 remand directive has also been complied with. Therefore, the Board concludes that all required notice and development has been accomplished in accordance with the relevant laws and in accordance with provision of substantial compliance with the Board's remands of November 2005, February 2008, and July 2010, such that no further notice or development is required. Governing Laws for Service Connection Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service), 1153 (aggravation). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). That is, a Veteran can establish continuity of symptomatology in cases where the Veteran cannot fully establish the in-service and/or nexus elements of service connection discussed above. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Court held a Veteran must show "(1) that a condition was 'noted' during service, (2) with evidence of post-service continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307. Whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question, that is, whether the relationship and disability are capable of lay observation. Savage, 10 Vet. App. at 497; accord Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For continuity of symptomatology, although the Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A disability can also be service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability). In short, in order to establish entitlement to service connection on this secondary basis, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the holding in Allen; however, under the facts of this case the regulatory change does not impact the outcome of the appeal. Competent medical evidence may mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. §§ 1154(a). With regard to lay evidence, the Federal Circuit Court recently held that lay evidence, when competent, can establish a nexus between the Veteran's disability and an in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Id. at 1316. Instead, under 38 U.S.C.A. §§ 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377 (footnote omitted). For example, a layperson would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer. Id. at 1377 n.4. In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and evidence of a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis - Service Connection for Left Leg and Hip Disability The Veteran has claimed that he injured his left leg and hip due to a fall off a ladder, as secondary to his service-connected low back disability. Specifically, the Veteran has alleged that his service-connected low back disability causes his leg to go out, and that in June 2002, his leg went out and he fell from a ladder thereby causing injuries to his left leg and hip. See the Veteran's August 2002 claim, May 2003 NOD, February 2004 VA Form 9; see also the May 2005 hearing transcript pges. 4-5, 10. The first requirement for a service-connection claim - on either a direct or secondary basis -is the existence of a current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), Wallin v. West, 11 Vet. App. 509, 512 (1998). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). In this regard, the AOJ has obtained private treatment records from Tulane University Hospital dating from July to September 2002 and from Slidell Memorial Hospital dating from June to July 2002. These records show that in June 2002, the Veteran fell from a ladder and experienced a left femoral neck and left acetabulum fracture. The VA medical treatment records and the Veteran's statements show that he has had ongoing treatment for the residuals of these injuries. As such, there is clear evidence that the Veteran currently experiences the residuals of a left leg and hip injury which may be considered for service connection. When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). As such, the Board will first address the Veteran's claims for service connection for a left leg and hip disorder on a secondary basis. When claiming service connection for a secondary condition, after showing that he has the claimed disorder as indicated above, the Veteran must show that he has a currently service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In the April 2002 rating decision, the Veteran was service-connected for a low back disorder, as a herniated nucleus pulposus at L5-S1, with narrowing of the L4-5 disc space, and his disability was rated at 20 percent. Thus, the Veteran clearly is currently service-connected for a low back disorder which may have caused him to fall from a ladder. Therefore, the remaining issue is if the Veteran's left leg and hip disorder may be etiologically related to the Veteran's currently service-connected disability. Wallin, at 512. The AOJ provided the Veteran with a VA orthopedic examination in June 2006, and in May 2007 obtained an opinion from this examiner regarding whether or not the Veteran's low back disorder might have caused his fall. The examiner concluded that the Veteran's fall was probably not caused by his low back condition, because there was no evidence of atrophy or objective evidence of weakness. In March 2010, the same VA orthopedic examiner provided a further explanation of the opinion. The examiner indicated that a close look at the evidence indicated that the Veteran's fracture of the femoral neck might have occurred before he fell. The examiner also noted that a prior neurological examiner had found a normal sensory examination, and that there was no secondary evidence of other falling injuries to corroborate the Veteran's claim. However, the rationale of the orthopedic examiner is diminished in that the examiner has not explained how, if the Veteran's fracture occurred before he fell, this would still undercut the Veteran's claim that his injury was due to his left leg going out. However, the Veteran was also provided with a VA neurological examination in May 2007 to address his contention that his left leg had gone out due to his low back disorder and caused his left leg and hip injuries. At that time, the examiner noted the Veteran's history of pain and occasional numbness extending down the Veteran's low back. Although there was no evidence of any lower extremity weakness, and the Veteran's muscle strength, tone, and coordination were normal in the lower extremities, the examiner concluded that the Veteran's history of occasional episodes of left lower extremity weakness are "related to [the Veteran's] low back problem." In March 2010, the VA neurological examiner provided an addendum again indicating that the Veteran has a history of experiencing occasional episodes of left lower extremity weakness since 1984 and that these episodes are due to the Veteran's low back disorder. Granting the Veteran the benefit of the doubt as required by 38 U.S.C.A. § 5107(b), and 38 C.F.R. § 3.102, in effect, the examiner has endorsed the Veteran's statements of experiencing left lower extremity weakness, and provided a positive opinion in favor of the Veteran's claim for service connection for his left leg and hip disorder as secondary to his low back disorder. Therefore, the Board is presented with both a positive opinion and a negative opinion regarding the etiology of the Veteran's left leg and hip disorder. In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators;... Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Regarding the two medical opinions, both appear to be based on a thorough examination of the Veteran, and both have been provided by qualified medical examiners. Furthermore, both VA medical examiners have provided rationales to support the opinions provided. They have both reviewed the medical evidence of record. As provided by the Court, the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Guerrieri, supra. In essence, the Board may not prefer one medical opinion over another solely based on claims file review or the absence thereof; most of the probative value of a medical opinion comes from its reasoning. Id. As such, the Board notes that the positive opinion provided is strengthened by the fact that it was provided by a relevant specialist. In addition, the neurological examiner specifically focused on the relevant history to support his conclusions. Finally, the Board notes that the record shows a history of pain and numbness radiating into the Veteran's left leg and due to his low back disorder, which may have caused his leg to "go out." See the December 2001 VA medical examination; see also the VA medical treatment records of May and November 2003, and March 2004. However, the opinion also rests on the credibility of the Veteran's self-interested testimony that his low back disorder caused him to fall. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). When adjudicating a claim, the Board must also consider the doctrine of reasonable doubt. As the Court has written: A unique standard of proof applies in decisions on claims for Veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a Veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). See, too, 38 C.F.R. § 3.102. The Court noted that under this standard, when the evidence supports the claim or is in relative equipoise (about evenly balanced for and against), the appellant prevails. Where the "fair preponderance of the evidence" is against the claim, the appellant loses and the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in an approximate balance." Id. at 58. The Court has further held that where there is "significant evidence in support of the appellant's claim," the Board must provide a "satisfactory explanation" as to why the evidence is not in equipoise. Williams v. Brown, 4 Vet. App. 270, 273 (1993). Here, there is conflicting competent medical evidence as to whether the Veteran's left leg and hip disorder is connected to his low back disorder, but there is no compelling basis for rejecting either opinion. In light of the contrasting findings, the Board finds that the evidence is in equipoise. That is, there is an approximate balance of the positive and negative evidence. In such situations, the benefit of the doubt is resolved in the Veteran's favor. Accordingly, service connection for the residuals of a left leg and hip injury is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Because the Veteran has perfected an appeal as to the assignment of an initial rating following the initial award of service connection for his low back disorder, the Board is required to evaluate all the evidence of record reflecting the period between the effective date of the initial grant of service connection for this disorder until the present. This could result in "staged ratings" based upon the facts found during the period in question. Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his disabilities have been more severe than at others. Id. at 126. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Analysis - Higher Initial Disability Rating for a Service-Connected Low Back Disability, granted as a Herniated Nucleus Pulposus at L5-S1 with Narrowing of the L4-5 Disc Space The Veteran filed his initial claim for service connection for a low back disability in March 2001. He was granted an initial rating of 20 percent under Diagnostic Code 5293 for intervertebral disc syndrome (IVDS). The Veteran appealed the initial rating decision, contending that his low back disability warrants a higher initial rating. The Board notes that, over the course of the Veteran's appeal, the criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). If, as here, a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The amendments mentioned have established the effective dates without a provision for retroactive application. Thus, the September 2002 amendments may only be applied after September 2002; likewise, the September 2003 amendments may only be applied after September 2003. The 2002 amendments allow for IVDS to be evaluated based on incapacitating episodes or based on chronic orthopedic and neurologic manifestations combined. The 2003 amendments renumbered the diagnostic codes and created a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. The Board observes that the AOJ addressed all three sets of regulations in its January 2004 SOC and April 2010 SSOC. Therefore, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Under Diagnostic Code 5292 (limitation of motion of lumbar spine), in effect prior to September 26, 2003, severe limitation of motion warrants a 40 percent evaluation, moderate limitation of motion of the lumbar spine warrants a 20 percent evaluation, and slight limitation of motion of the lumbar spine warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (in effect prior to September 26, 2003). Although the Rating Schedule applied prior to the September 2003 amendments does not define a normal range of motion for the lumbar spine, normal ranges of motion for the thoracolumbar spine have been established under current regulations. See 38 C.F.R. § 4.71a, Plate V. Because the supplementary information associated with the amended regulations state that the ranges of motion were based on medical guidelines in existence since 1984, the Board will apply the most recent September 2003 guidelines for ranges of motion of the spine to the previous criteria. See 67 Fed. Reg. 56,509 (Sept. 4, 2002). Under the previous Diagnostic Code 5293 (intervertebral disc syndrome (IVDS)), effective prior to September 23, 2002, moderate IVDS with recurring attacks warrants a 20 percent disability rating; severe IVDS with recurring attacks and intermittent relief warrants a 40 percent disability rating; and pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief, warrants a 60 percent disability evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Diagnostic Code 5293 involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion for the lumbar vertebrae. See VAOPGCPREC 36-97. Under the September 2002 amendments, the regulations regarding IVDS were revised. Under the September 2003 amendments, the regulations regarding diseases of and injuries to the spine, to include IVDS, were again revised by VA. The criteria for evaluating IVDS under the September 2002 and September 2003 revisions are essentially the same, except that the diagnostic code for intervertebral disc syndrome was changed from 5293 to 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Thus, for clarity's sake, the Board will only analyze IVDS under the pre-September 2002 criteria and the September 2003 amendments. Under the September 26, 2003 amendments, the Veteran's low back disorder may be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, 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. Note 2: If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003). As of September 26, 2003, IVDS can also be rated under the General Rating Formula for Diseases and Injuries of the Spine: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). The Veteran was provided with a VA orthopedic examination in December 2001. At that time, the VA medical examiner noted that the Veteran complained of midline low back pain radiating into his legs. There was no numbness, tingling, or paraesthesias. The Veteran did not experience weakness in his legs, or bowel or bladder incontinence. He described his pain as a stabbing deep pain ranging from 1-10 out of 10. A physical examination revealed no scoliosis, with forward flexion to 260 degrees with some pain on the end range, and relief with recovery. There was no pain on extension, lateral bending to the left was painful over the left PSIS (posterior iliac spine), but left lateral bending was not painful to 20 degrees. Motor strength throughout the bilateral lower extremities was 5 out of 5 without focal weakness or atrophy. The Veteran's sensation was intact to light touch, and his reflexes were trace 4 in the bilateral patellae and absent at the ankles. There was negative Babinski, straight leg raise and femoral stress, sacral thrust, and Patrick test. There was some hamstring tightness. There was positive lumbar spring focally at the L4-5 region, and minimal discomfort or pain on palpitation of the paraspinal thrust. The Veteran was diagnosed with degenerative disc disease with narrowing at the L4-5 disc space. The examiner indicated that the Veteran's low back disability manifested with "low back pain with radiation into the lower extremities, which is of somatic referred nature without evidence of radiculopathy." In his September 2002 NOD, the Veteran indicated that his back causes him acute problems including a reduced range of motion, unbalance, chronic pain, and radiculopathy. A March 2003 magnetic resonance imaging (MRI) was conducted of the Veteran's spine at around this time and found multilevel spondylosis and stenosis of the lumbar spine with neural foramen narrowing and hemangiomas. A May 2003 VA medical treatment record noted that the Veteran experienced radiating back pain. A September 2003 VA medical treatment record noted that the Veteran indicated experiencing regular pain as 4 out of 10, which could rise to as high as 8 and would continue for days. However, his pain was very well managed by medication and his pain was acceptable. In October 2003, the Veteran was provided with a further VA orthopedic examination regarding his low back disability. At this time, the examiner noted that the Veteran experienced chronic backache, but that his range of motion was normal. There was no spasm. The examiner indicated that the Veteran was experiencing aging changes in the lumbar spine as well as post-pain injection changes with mild spinal stenosis. A November 2003 VA medical treatment record noted that the Veteran continued to experience radiating low back pain to the left leg, and that he could lose strength and fall. His pain was worsened by standing or bending, and lying, standing, or leaning could improve his pain. He had experienced no bowel or bladder accidents. In his February 2004 VA Form 9, the Veteran indicated that he suffered from severe back problems, including chronic pain and radiculopathy into the left leg. The Veteran also indicated that he did have a limited range of motion, but this was incorrectly entered into the examination report. He indicated that his disability had progressed "to the point of degenerative changes, bone spurs and spinal stenosis." He also indicated that he could no longer climb, crouch, or crawl, and that he experienced constant instability. A March 2004 VA medical treatment record indicates that the Veteran continued to experience radiating pain which resulted in occasional loss of strength and falls occurring about once a week but there continued to be no bowel or bladder accidents. This was worsened by walking and bending, and alleviated by lying, standing, or leaning. The Veteran indicated that his medication was not managing his pain well, and his level of pain management was not acceptable. Another VA medical treatment record from the same month indicated that the Veteran had begun to use a cane, at least in part due to his back pain. At his May 2005 Board hearing, the Veteran indicated that he continued to experience radiating pain. See the hearing transcript pges. 5, 10-11, 15-15. At the time, the Veteran's low back pain was being treated with spinal injections. Id. pg. 6. He would have periods of pain where he could not work. Id. pges. 6-7. He indicated that his pain would be rated generally at a 4 on a 10 point scale, but could shoot up to 8 or 9. Id. pg. 15. In June 2006, the Veteran was provided with another VA orthopedic examination. At that time, the examiner noted that the Veteran reported experiencing mild pain on a daily basis which radiated to his left knee. The Veteran was limited to walking slowly and using a cane. The Veteran's spine posture was noted as normal, and his gate was normal. There was no evidence of any abnormal spine curvature, or any ankylosis. The Veteran was provided with arrange of motion of the thoraco-lumbar spine with forward flexion of 0-70 degrees, extension from 0-20 degrees, lateral flexion and rotation on each side of 0-25 degrees. Further, the examiner noted that there was no additional functional loss of range of motion upon repetitive motion testing due to pain fatigue, weakness, or lack of endurance. The Veteran was provided with a detailed sensory examination with normal findings for all the extremities. There was also no Lasegue's sign. In May 2007, the June 2006 VA orthopedic examiner provided an addendum to the original opinion that the Veteran's there was no objective evidence that would cause his leg to give way. However, a separate neurological examination dated in May 2007 indicated that the Veteran has a history of weakness where his left leg would suddenly "give way" causing the Veteran to fall. Although the VA medical examiner indicated that the Veteran's weakness was related to his low back disorder, the examiner further noted that his disorder did not show any evidence of "lower extremity weakness, [and the Veteran's] muscle [strength], tone, and coordination [were] normal in [the] upper and lower extremities." The examiner concluded that the Veteran's sensory examination was normal in the lower extremities. Finally, a March 2010 addendum provided by the June 2006 VA orthopedic examiner indicated that there was no evidence of incapacitating episodes due to the Veteran's low back disorder. The Veteran was provided with a second Board hearing in March 2011. At that time, the Veteran provided more evidence regarding the manifestations of his low back disorder. The Veteran indicated that he was receiving treatment for pain, and that all his treatment was through VA. See the March 2011 hearing transcript pg. 4. The Veteran indicated that he had been receiving VA treatment, but that this treatment involved renewing his prescription and the Veteran indicated that he had not had any new problems. Id. pges. 7, 18. The Veteran indicated that he is limited to lifting about 30-40 pounds, although the only medically prescribed limitations were related to his hip injury, and that he cannot go up or down more than three or four steps on ladders or stairs unaided. Id. pges. 5, 6. The Veteran also indicated that his leg had reduced going out on him to about twice a year. Id. pg. 8. The Veteran indicated that his back sometimes required him to lie down, but that he has not been confined to bed rest for any extensive period. Id. pg. 17. He indicated that he did not wear any brace for his back, and that his treatment only involves pain medication. Id. He also indicated that he had not been hospitalized for any period due to his low back disorder since his 1984 surgical treatment. Id. pg. 19. In fact, the Veteran indicated that he continues to have pain, but it has not been as bad as since the surgery; he can drive, but he is limited in terms of the amount of time that he can spend sitting. Id. pg. 20. First, the Board will address whether or not the Veteran is entitled to an initial disability rating in excess of 20 percent for his service-connected low back disorder, under the relevant Diagnostic Codes in effect prior to September 2002. In this case, after a review of the Veteran's records, the Board concludes that the Veteran's low back disorder does not warrant an increased rating in excess of the 20 percent assigned under the pre-September 2002 regulations for IVDS. 38 C.F.R. § 4.7. That is, under the pre-2002 regulations and subsequent September 2002 amendments, neither the Veteran's VA medical treatment records nor his VA examinations conducted in December 2001, October 2003, June 2006, or May 2007, or any of the associated addenda reveal a vertebral fracture requiring a neck brace (Diagnostic Code 5285); favorable or unfavorable ankylosis of the lumbar spine (Diagnostic Codes 5286 and 5289); sacro-iliac injury and weakness (Diagnostic Code 5294); or lumbosacral strain (Diagnostic Code 5295). A lumbosacral strain of the lumbar spine was never diagnosed or service-connected. Therefore, these diagnostic codes under the former and interim criteria will not be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Further, under the pre-2002 regulations for IVDS, the evidence does not support a rating higher than 20 percent under Diagnostic Codes 5293 (IVDS), and 5292. That is, there is no evidence of severe limitation of motion. Nor does the evidence of record show severe, recurring attacks with intermittent relief, or 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. In this regard, the Board notes that the Veteran has frequently found to be experiencing pain that radiates from his low back down to his legs. See the December 2001, October 2003, VA medical examinations, the May 2007 VA orthopedic examination, and the May and November 2003, and March 2004 VA medical treatment records; see also the Veteran's September 2002 NOD, February 2004 VA Form 9, the Veteran's May 2004 claim for TDIU, the May 2005 hearing transcript pges. 4, 5, 14-15, and the March 2011 hearing transcript pges. 8-12, 15. However, despite the evidence of radiating pain and some associated weakness, there is no competent evidence of a diagnosis of lower extremity neuropathy or radiculopathy that may be separately rated. The Board notes that the Veteran has indicated multiple times that he experiences radiculopathy, and although he is competent to describe symptoms like pain or numbness, he has not provided any evidence to show that he is competent to provide a diagnosis of such a disorder. See Layno, at 469; see also 38 C.F.R. § 3.159(a)(1). In fact, the December 2001 VA medical examination specifically denied evidence of radiculopathy. Further, the June 2006 VA orthopedic examination provided a detailed sensory examination of the Veteran's extremities with normal results throughout. Finally, although the May 2007 VA neurological examination indicated that the Veteran may fall due to his low back disorder, the examiner indicated that there was no evidence of any lower extremity weakness, and the Veteran's muscle strength, tone, and coordination were normal in the extremities, the DTRs (deep tendon reflexes) were present and symmetric. Therefore, the May 2007 neurological examiner concluded that the Veteran's sensory examination was normal for the lower extremities. As such, there is only evidence of pain and numbness radiating from his spine. Pain, without a diagnosed or identifiable underlying malady or condition, does not of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). As such, the Veteran's low back disorder was appropriately rated as moderate with recurring attacks under Diagnostic Code 5293 as in effect at the time of his original claim. Further, the Board also notes at this time that under the post-September 2003 criteria, the Veteran's low back disorder also does not show that he warrants a separate rating under Diagnostic Code 8520. 38 C.F.R. § 4.124a. In short, for the majority of each year, the Veteran's IVDS did not manifest in "severe" symptoms or limitation of motion, as defined in Diagnostic Codes 5292, 5293. The Board now turns to the new rating criteria in effect after September 2002 and September 2003. Under these regulations, the Veteran's IVDS is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the September 2003 amendments, with regard to orthopedic manifestations of the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine, the evidence of record does not demonstrate entitlement to a rating in excess of 20 percent in that neither ankylosis nor forward flexion of the thoracolumbar spine to 30 degrees or less has been demonstrated. Specifically, the December 2001 VA medical examination found forward flexion of the spine to 260 degrees. The October 2003 VA medical examination found a normal range of motion. Finally, the June 2006 VA orthopedic examination found that the Veteran had forward flexion to 70 degrees. There has also never been any probative evidence of any form of ankylosis. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health, 68 (4th ed. 1987)). Because the Veteran was able to move his lumbar spine - although not with normal range of motion, by definition his lumbar spine is not immobile. With regard to functional loss, the June 2006 VA orthopedic examiner noted that there was no additional limitation of motion on repetitive motion due to pain, fatigue, weakness, or lack of endurance. However, the Board acknowledges that the Veteran has an extensive history of pain, which radiates to his lower extremities, and that this has caused difficulty standing or sitting for extended periods, as well as climbing ladders or stairs. Further, there is evidence of loss of balance and that the Veteran has fallen due to his low back disorder. However, overall, his factors of functional loss simply do not cause limitation of flexion to 30 degrees or less or anything remotely approximating ankylosis or severe functional limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-207. As previously indicates, the Board notes that the revised regulations in effect during this period allow for a consideration of an increased rating based on incapacitating episodes. However, there is no competent evidence of incapacitating episodes regarding the Veteran's service-connected back disability. Thus an initial evaluation in excess of 20 percent disabling is not warranted under the revised criteria based on periods of incapacitation. In summary, the Board concludes that the preponderance of the evidence does not support a rating in excess of 20 percent for the Veteran's lumbar spine disability under the pre-September 2002, September 2002, or September 2003 versions of the rating criteria. In denying a higher initial rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board adds it does not find that the Veteran's service-connected low back disorder on appeal should be increased for any other separate period based on the facts found during the appeal period. Fenderson, 12 Vet. App at 125-26. Since the effective date that he was awarded service connection for a low back disorder there has been no discernable fluctuation in the severity of his rating, so the Board finds no basis to "stage" his low back rating. Extraschedular Rating for Veteran's Service-Connected Low Back Disorder The Court recently clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). First, the AOJ or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the AOJ or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). First, the Veteran's disability level does not show any exceptional disability picture with the standard complaints of limitation of motion and pain associated with herniated nucleus pulposus at L5-S1, with narrowing of the L4-5 disc space. Second, the Veteran's functional impairment is specifically incorporated in the rating criteria under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59. See also DeLuca, 8 Vet. App. 202 at 206. Further, the revised rating criteria also expressly consider incapacitating episodes. With the applicable rating criteria requiring consideration of these elements of the Veteran's disability, further extraschedular analysis is moot. However, even if the Board were to concede that the rating criteria do not address all of the effects of the Veteran's service-connected low back disorder, the evidence of record does not show any exceptional or unusual circumstances, to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. In this regard, there is evidence that the Veteran's low back disorder plays a role in his current unemployment. However, as noted above, he was granted TDIU for his service-connected disabilities in September 2006. The Veteran has not provided any evidence to show that prior to the effective date of this award, but during the appeal period, he lost paid work or experienced a reduction in income due to his low back disorder such that any increased award on an extraschedular basis is appropriate. Finally, there is no other evidence of exceptional or unusual circumstances, such as frequent hospitalization to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. Therefore, the evidence of record simply does not warrant an extraschedular rating for the Veteran's low back disorder. In reaching this conclusion, the Board notes that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for the residuals of a left leg and hip injury is granted. A disability rating in excess of 20 percent for the Veteran's low back disorder, herniated nucleus pulposus at L5-S1, with narrowing of the L4-5 disc space, is denied. ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs