Citation Nr: 1126331 Decision Date: 07/13/11 Archive Date: 07/19/11 DOCKET NO. 96-49 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 40 percent for lumbar fibromyositis with lumbosacral herniated nucleus pulposus (HNP) at L5-S1, to include entitlement to an increased rating in excess of 20 percent prior to December 4, 2006. 2. Entitlement to an initial rating in excess of 10 percent for left S1 lumbar radiculopathy associated with lumbosacral HNP at L5-S1. REPRESENTATION Appellant represented by: Juan Cruz-Cruz, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran had active military service from April 1967 to April 1970. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision in September 1996 by the San Juan, Puerto Rico Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied the claim of entitlement to an evaluation in excess of 10 percent for his service-connected lumbar fibromyositis. The Veteran subsequently testified before a Hearing Officer at the RO in April 1997. In February 2006, the Board found the Veteran's claim of entitlement to service connection for the degree of aggravation of a lumbosacral HNP at L5-S1 attributable to service-connected lumbar fibromyositis remained pending and was not adjudicated by the RO. The Board remanded this matter to the RO for adjudication and for re-adjudication of the issue of entitlement to an evaluation in excess of 10 percent for lumbar fibromyositis. In a March 2007 rating decision, the evaluation for service-connected lumbar fibromyositis was increased to 40 percent, effective December 4, 2006. In an October 2007 Board decision, the Board granted entitlement to service connection for the HNP because there was additional impairment secondary to service-connected lumbar fibromyositis. The Board then remanded the claim to determine the exact amount of impairment. In February 2009, the RO granted service connection for left S1 lumbar radiculopathy with a 10 percent rating, effective September 23, 2002. The Veteran did not file a notice of disagreement with this rating. However, the Board will address the increased ratings for both the service connected lumbar fibromyositis and the Veteran's service-connected left S1 lumbar radiculopathy since both of these issues are not granted in full. See AB v. Brown, 6 Vet. App. 35 (1993). Due to the fact that the left S1 lumbar radiculopathy is associated with the HNP, the Board has separately identified this issue on the cover page of this decision. In the January 2010 supplemental statement of the case, the RO also assigned a retroactive 20 percent rating for the Veteran's lumbar fibromyositis with lumbosacral HNP at L5-S1 for the period prior to December 4, 2006 (effective March 2, 1996). Therefore, the increased rating claim has also been recharacterized to account for this determination. The issue of entitlement to an initial rating in excess of 10 percent for left S1 lumbar radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Both before and after December 4, 2006, the Veteran's service-connected lumbar fibromyositis with lumbosacral HNP at L5-S1 has been manifested by limited motion with pain and some objective findings of sciatic neuropathy appropriate to the site of the diseased disc. CONCLUSION OF LAW Both before and after December 4, 2006, the criteria for a 60 percent, but not greater, rating for the Veteran's service-connected lumbar fibromyositis with HNP at L5-S1 have been met. 38 U.S.C.A. §§ 1155, 1159, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.957, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a; Diagnostic Codes 5235-5243, 5285, 5286, 5292, 5293, 5295 (2002, 2003, 2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist In a March 2005 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In a May 2007 letter, the Veteran was informed of the process by which effective dates are established, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). A decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the amount of notice required for increased rating claims, essentially stating that general notice is adequate and notice need not be tailored to each specific veteran's case. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was given the rating criteria for the current ratings in effect in a March 2009 letter, and the claim was thereafter readjudicated in the January 2010 supplemental statement of the case. The Board finds that the Veteran has received adequate notice regarding his increased rating claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his or her claim. 38 U.S.C.A. 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2010). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his or her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4) (2010). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records are currently in the claims file. Identified and available medical records have been secured. The Veteran has received several VA examinations. Evidence in the claims file indicated that the Veteran was receiving Social Security Administration (SSA) Disability benefits, and after several attempts to retrieve SSA records (see a May 1997 and January and August 1998 requests), the Veteran's attorney representative wrote to VA in June 1998. The attorney stated that it had been over a year since the record requests were made to SSA and SSA had not responded. In April 1997, the representative also tried to get records from SSA, to no avail. As a result, the attorney representative requested that the RO stop asking for the SSA records and adjudicate the claim. The Board finds the duty to assist has been met. II. Legal Criteria A. Disability Evaluations in General Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2010). In exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2010). In Thun v. Peake, 22 Vet. App. 111 (2010), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). B. Evaluating Disabilities of the Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2010). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including any flare-ups. 38 C.F.R. § 4.14 (2010). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2010) (addressing the joints) should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the further intention 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 (2010). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than is normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Any instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. C. Criteria for Rating Spine Disabilities During the pendency of this Veteran's appeal, the criteria for rating spine disabilities were amended twice. Effective September 23, 2002, VA revised the criteria for diagnosing and evaluating intervertebral disc syndrome (IDS). 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for evaluating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). At that time, VA reclassified DC 5293 as DC 5243 for IDS. The VA General Counsel has held that where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 7-2003 (Nov. 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. The VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. Under the former criteria prior to September 26, 2003, limitation of motion of the lumbar spine that is slight warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5292 (2002). Moderate limitation of motion warrants a 20 percent rating. Id. Severe limitation of motion warrants a 40 percent rating. Id. Also under the former criteria prior to September 26, 2003, sacro-iliac injury and weakness and lumbosacral strain are rated under the same criteria. 38 C.F.R. § 4.71a, DC 5294, 5295 (2003). The pertinent criteria are as follows: Severe; with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion................................................40 With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position...................................20 With characteristic pain on motion........................................10 Under the former criteria prior to September 23, 2002, IDS that is severe, with recurring attacks with intermittent relief warrants a 40 percent evaluation; and intervertebral disc syndrome that is pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, an absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief warrants a maximum evaluation of 60 percent. 38 C.F.R. § 4.71a, DC 5293 (2002). Moderate, recurrent attacks are rated at 20 percent and mild disability is rated at 10 percent. Id. Effective September 23, 2002, IDS is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past twelve months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). IDS with incapacitating episodes having a total duration of at least 6 weeks during the past twelve months is rated at 60 percent; and IDS with incapacitating episodes having a total duration of at least 4 weeks but less than six weeks during the past twelve months are rated at 40 percent. Id. IDS with incapacitating episodes have a total duration of at least two weeks but less than four weeks are rated at 20 percent. Id. IDS with incapacitating episodes having a total duration of at least one week but less than two weeks in the past twelve months are rated at 10 percent. Id. Note 1 to this provision provides that for purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Neurologic disabilities are to be evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. Note 3 provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. The schedule for rating disabilities of the spine was revised again, effective September 26, 2003. 38 C.F.R. § 4.71a, DC 5235-5243 (2010). The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) applies to DCs 5235 to 5243; DC 5243 states that IDS may be evaluated under the General Rating Formula or the Formula for IDS, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Id. The pertinent parts of the General Rating Formula for this case are below: 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: Unfavorable ankylosis of the entire spine.....................................100 Unfavorable ankylosis of the entire thoracolumbar spine...............50 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....20 Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Note 2 states that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are 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 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. (See also Plate V.) Id. Note 5 provides that 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. Id. IDS should be evaluated either under the General Rating Formula or under the Formula for IDS, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for IDS based on incapacitating episodes remains as stated above and was not changed in September 2003. D. Increased Rating Claim The Veteran is currently assigned a 40 percent rating for lumbar fibromyositis under Diagnostic Code 5237 (lumbosacral strain) and a 10 percent rating for left S1 lumbar radiculopathy under Diagnostic Code 8520 from September 2002. As will be shown more fully below, however, since the Board has determined that the Veteran is entitled to a 60 percent rating under former Diagnostic Code 5293 throughout the entire relevant time frame on appeal, and there is no evidence of fracture of the Veteran's vertebrae or complete bony fixation (ankylosis) of the lumbar spine to allow for rating under former Diagnostic Codes 5285 or 5286, the primary matters for consideration are entitlement to a 100 percent rating under the General Formula for unfavorable ankylosis of the entire spine, and the question of whether any associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code. As background, an October 1993 VA radiology report stated that partial loss of normal lordosis was probably secondary to paralumbar muscle spasm or myositis associated with mild spondylotic changes at L4 and L5. However, a November 1993 VA note stated that the Veteran had a complete range of motion in his back with mild tenderness. He complained of low back pain. He worked as a mailman and spent time lifting heavy objects. "So back pain is most probably secondary to mechanical." After the Veteran filed the instant claim in March 1996, he received a VA spine examination in July 1996. The Veteran reported associated numbness in both legs that was worse on the left. He had pain which worsened upon using stairs "with a loss of strength." He had no bowel, bladder or sexual dysfunction. The pain was worse with standing or sitting for a long time. Physical examination showed that he had no postural abnormalities or fixed deformities of the back. He did have a moderate muscle spasm of the lumbar paravertebral muscles. Range of motion was measured as follows: Forward flexion 40 Degrees/90 Extension 10 Degrees/30 Right lateral flexion 20 Degrees/30 Left lateral flexion 20 Degrees/30 Right lateral rotation 30 Degrees/30 Left lateral rotation 35 Degrees/30 He had pain on motion. Also of note is the fact that there was muscle atrophy of the left thigh, which measured 43 centimeters compared with 47 centimeters on the right. There was also positive straight leg raising bilaterally, and diminished pinprick and smooth sensation on the left L5-S1 dermatomes of the foot. The diagnoses included lumbar paravertebral fibromyositis, L5-S1 HNP by magnetic resonance imaging (MRI) and clinical left L4, L5, S1 lumbar radiculopathy. In June 1997, Dr. De Diego wrote a medical record summary for the Veteran, who was first evaluated in July 1987. The Veteran had been treated with medication and physical therapy. Significant findings include tender muscles of the back to pressure, increased pain with elevation of the legs, and no evidence of muscle atrophy. Final diagnoses were: disc disease, radiculopathy, and muscle spasms. In March 1998, Dr. Guzman wrote a letter for the Veteran. He had been treated for a back condition by Dr. Guzman from 1983 to 1990. At the time the Veteran complained of pain for the whole back. He was put on physical therapy and did not improve. In December 1997, the Veteran complained of back pain. He had a guarded gait due to pain. There were spasms of the whole back. He lacked 10 inches on forward bending. He could not squat and was unable to stand on his toes or heels. The assessment was cervicodorsolumbar myositis. He was to undergo physical therapy and massage. In February and March 1998 he was re-evaluated; his condition was almost the same as in December 1997. In October 2001, the Veteran received a VA examination for the spine. He complained of intermittent low back pain and associated with prolonged stationary positions. The Veteran had stiffness in his back and complained of friction-type pain. It was associated with bending and radiated to the left lower extremity. The Veteran had daily flare-ups with pain, especially in the morning. The Veteran was independent in activities of daily living. Range of motion was measured as follows: Forward flexion 30 Degrees/90 Extension 5 Degrees/30 Right lateral flexion 10 Degrees/30 Left lateral flexion 10 Degrees/30 Right lateral rotation Not reported Left lateral rotation Not reported Pain was experienced during range of motion testing. There was no additional limitation upon repetitive use. The examiner observed tenderness to palpation and bilateral spasms of the lumbar paravertebral muscles. Also noted was flat lumbosacral lordosis. The musculature of the back was symmetric. In 2002 and 2003, the regulations regarding rating the spine changed, as described above. In March 2005, the Veteran received another VA examination. The Veteran complained of a worsening of his back pain. He did not use any assistive devices to walk. He said he could walk about 5 to 10 minutes. He had no history of falls but complained of unsteadiness during ambulation. He had no surgery to his back. The Veteran was independent in his activities of daily living. The Veteran had erect posture that was symmetric. Range of motion for the thoracolumbar spine was measured as follows: Forward flexion 0 to 65 Degrees/90 Extension 0 to 22 Degrees/30 Right lateral flexion 0 to 20 Degrees/30 Left lateral flexion 0 to 20 Degrees/30 Right lateral rotation 0 to 20 Degrees/30 Left lateral rotation 0 to 20 Degrees/30 The pain started at 50 to 65 degrees for flexion. The examiner stated that the Veteran was additionally limited by pain, but not by fatigue, weakness or lack of endurance following repetition during the physical examination. He had tenderness to palpation and spasms at L4, L5, and S1. The muscle spasms and guarding were not severe enough to result in an abnormal gait or abnormal spinal contour. There were no other abnormalities or deformities of the back. No diagnostic studies were completed. The diagnosis was lumbar paravertebral fibromyositis. A December 2006 VA examination report reflects that the claims folder was reviewed by the examiner. The Veteran said he suffered from low back pain ever since his service. He said the pain was located at his paravertebral muscles and that it radiated to his left leg. This affected him 6-8 hours a day. He took some medication for the pain with some relief and no side effects. The Veteran had flare-ups once or twice a week with for 3-4 hours. Prolonged standing brought about pain. The Veteran denied additional limitation of motion during a flare-up. He walked without assistive devices, but had a limp due to recent knee surgery. He could walk for 10 or 15 minutes. He was not unsteady and denied falls. He was independent in activities of daily living. The spine, limbs, posture, gait, head position were symmetrical. Range of motion for the thoracolumbar spine was measured as follows: Forward flexion 0 to 20 Degrees/90 Extension 0 to 10 Degrees/30 Right lateral flexion 0 to 15 Degrees/30 Left lateral flexion 0 to 15 Degrees/30 Right lateral rotation 0 to 15 Degrees/30 Left lateral rotation 0 to 15 Degrees/30 The Veteran had pain with motion. In giving an opinion on a separate issue, the examiner noted that fibromyositis presents with localized pain and spasms and the Veteran had these symptoms. A September 2008 VA examination report for the spine showed that medical records were reviewed. It was noted that the Veteran's lumbosacral HNP at L5-S1 and lumbar fibromyositis were being evaluated. The Veteran stated his condition has worsened; his leg hurt and he had limitation of motion. He responded fairly to pain medication. No past hospitalization was noted. He had decreased motion, stiffness, spasms and pain. He had constant, severe, stabbing pain in the low back area daily. He also had radiation of shooting pain to the legs. He had severe flare-ups which occurred weekly and lasted for hours when he lifted objects and bent forward. The alleviating factors were rest and medication. The Veteran said he was unable to engage in daily activities. The Veteran had no incapacitating episodes but he was seen consistently by his doctor who recommended medications. The Veteran used a back brace. He was able to walk more than a quarter mile, but less than one mile. Objective abnormalities of the thoracic spine include spasms; guarding; pain with motion; tenderness and weakness. Spasm was not severe enough to be responsible for an abnormal gait or contour. Inspection of the spine showed that the Veteran's pelvis tilted to the left and there was asymmetry in the spine's appearance; the left shoulder was higher than the right shoulder. The gait type was antalgic. Lumbar flattening was noted. Forward flexion 0 to 90 Degrees/90 Extension 0 to 30 Degrees/30 Right lateral flexion 0 to 30 Degrees/30 Left lateral flexion 0 to 30 Degrees/30 Right lateral rotation 0 to 30 Degrees/30 Left lateral rotation 0 to 30 Degrees/30 The factors most responsible for additional limitation of motion on repetitive use for each measurement were pain, fatigue, weakness, incoordination, and lack of endurance. Tenderness was also noted. The findings were lumbosacral herniated nucleus pulposus at L5-S1; lumbar fibromyositis; and no evidence of lumbar radiculopathy by electromyography (EMG). These disabilities affected the Veteran's usual daily activities except recreation; feeding; bathing; dressing toileting and grooming were only mildly or not at all affected. Turning first to the period prior to December 4, 2006, the Board initially observes that the Veteran's symptoms are demonstrated by the same chronicity and subjective complaints of radiating pain that are demonstrated after December 4, 2006. Indeed, VA examination in July 1996 revealed evidence of moderate muscle spasm, limited motion with pain, subjective complaints of radiating pain, some muscle atrophy in the left thigh, diminished pinprick and smooth left L5-S1 dermatomes, and a diagnosis that included left L4, L5, S1 lumbar radiculopathy. Therefore, while the Board does not find that the record reflects recent electromyographic findings with respect to the Veteran's complaints of lower extremity radiculopathy, it does find that his chronic subjective complaints were sufficiently associated with his intervertebral disc syndrome both before and after December 4, 1996, to warrant entitlement to a 60 percent rating effective from March 2, 1996. With respect to the Veteran's entitlement to a rating in excess of 60 percent since March 2, 1996, the most recent VA findings indicate that lumbar flexion is now to as much as 90 degrees and thus, the Veteran is still clearly capable of limited motion with pain, and as detailed above, unfavorable ankylosis is defined by regulation as a condition in which the entire spine is fixed in flexion or extension. Additionally, the ankylosis must result in one or more of several specific difficulties. The medical evidence in this case, however, does not reflect that the Veteran's spine is unfavorably ankylosed. There is also no evidence that his spinal posture results difficulty walking because of a limited line of his 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. Thus, an increased rating based on unfavorable ankylosis is not warranted. Consideration of DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. § 4.40 and § 4.45 is not necessary because the Veteran's service-connected back disability is already rated at the maximum rating for limitation motion. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has further considered whether it would be more advantageous to the Veteran to receive a 40 percent rating for limitation of motion and separate ratings for any neurological manifestations involving the lower extremities. However, objective findings of lower extremity radiculopathy are not sufficiently demonstrated by the evidence of record at any time pertinent to the time frame on appeal. Accordingly, the Board finds that a preponderance of the evidence of record is against a disability rating in excess of 60 percent for the Veteran's service-connected low back disability throughout the entire time frame relevant on appeal. 38 U.S.C.A. § 5107(b). Finally, the Board would point out that the rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2010). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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. The Veteran's symptoms associated with his service-connected low back disability consist of limited motion with pain and some objective findings of sciatic neuropathy appropriate to the site of the diseased disc. However, the Board finds that such impairment is contemplated by the applicable rating criteria, i.e., Diagnostic Code 5293. The rating criteria reasonably describe the Veteran's disabilities. Referral for consideration of extraschedular ratings is, therefore, not warranted. ORDER Entitlement to a 60 percent, but not greater, rating for the Veteran's lumbar fibromyositis with lumbosacral HNP at L5-S1 is granted, effective from March 2, 1996, subject to the statutes and regulations governing the payment of monetary benefits. REMAND With respect to the remaining claim for an initial rating in excess of 10 percent for left S1 lumbar radiculopathy, the Board notes that the Board's assignment of a 60 percent rating for the Veteran's service-connected low back disorder under former Diagnostic Code 5293 also contemplates neurological manifestations of the Veteran's service-connected low back disorder. Therefore, the Board finds that the issue of entitlement to an initial rating in excess of 10 percent for left S1 lumbar radiculopathy should be remanded so that the RO can implement the newly assigned 60 percent rating and thereafter determine what effect, if any, the newly assigned rating will have on the continuation of the separate rating for left S1 lumbar radiculopathy. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Implement the newly assigned 60 percent rating for the Veteran's service-connected lumbar fibromyositis with lumbosacral HNP at L5-S1, effective from March 2, 1996. 2. Readjudicate the claim for an initial rating in excess of 10 percent for left S1 lumbar radiculopathy. If the decision remains in any way adverse to the Veteran, provide a statement of the case (SSOC) to the Veteran and his representative. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs