Citation Nr: 1127482 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 06-12 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for lumbar strain with scoliosis, prior to July 22, 2009. 2. Entitlement to an initial disability rating in excess of 40 percent for lumbar strain with scoliosis, as of July 22, 2009. 3. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease and degenerative joint disease of the facets and cervical spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The appellant served on active duty from August 1983 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, inter alia, denied service connection for residuals of a right ankle sprain and cervical spine strain with degenerative joint disease, granted service connection and assigned an initial 20 percent disability rating for lumbar strain with scoliosis and granted service connection and assigned an initial 10 percent disability rating for residuals of a right clavicle fracture. In November 2008, the Veteran testified at the RO before the undersigned Veterans Law Judge at the RO (Travel Board hearing); a copy of the transcript has been associated with the record. The Board notes that the Veteran provided testimony on all four issues noted above; however, he had perfected only the issues of entitlement to service connection for a cervical spine disorder and entitlement to an initial disability rating in excess of 20 percent for lumbar strain with scoliosis. As such, the remaining issues, entitlement to service connection for residuals of a right ankle sprain and entitlement to an initial disability rating in excess of 10 percent for residuals of a right clavicle fracture, are referred to the RO for appropriate action. In January 2009, the Board remanded this case for additional development. In a September 2010 rating decision, the RO granted service connection for degenerative disc disease and degenerative joint disease of the facets and the cervical spine, and increased the Veteran's disability rating for his lumbar strain with scoliosis to 40 percent, as of July 22, 2009. As this rating does not represent the highest possible benefit, this issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that, at his hearing, the Veteran indicated that he had erectile dysfunction as a result on his service-connected lumbar spine disability. In addition, the July 2008 VA examiner found that the Veteran's intervertebral disc syndrome (IVDS) caused his erectile dysfunction. This claim is not presently before the Board and, therefore, is referred to the RO for proper action. The issue of entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease and degenerative joint disease of the facets and the cervical spine 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. FINDINGS OF FACT 1. Prior to July 22, 2009, the Veteran's service-connected lumbar strain with scoliosis was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or unfavorable ankylosis of the entire thoracolumbar spine or by incapacitating episodes. 2. As of July 22, 2009, the Veteran's lumbar strain with scoliosis has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or by incapacitating episodes. 3. Radiculopathy of the right lower extremity is equivalent to no more than mild incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. Prior to July 22, 2009, the criteria for a disability rating in excess of 20 percent for lumbar strain with scoliosis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5237 (2010). 2. As of July 22, 2009, the criteria for a disability rating in excess of 40 percent for lumbar strain with scoliosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.71a, Diagnostic Code 5237 (2010). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for a disability rating of 10 percent, but no more, for radiculopathy of right lower extremity from July 9, 2008, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8526 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter(s) sent to the appellant on September 2004 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided with this notice in June 2008. Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA medical records and examination reports, non-VA medical records and lay statements have been associated with the record. In addition, the Board finds that the RO has complied with its instructions set out in the January 2009 remand. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the RO was instructed to ask the Veteran to identify all health care providers who have treated him for his lumbar spine disability and obtain records from the identified providers and to provide the Veteran with a VA examination of his lumbar spine to determine the extent and nature of his lumbar spine disability, including an opinion as to combined duration of incapacitating episodes and an opinion as to the Veteran's limitation of motion due to his back pain, which considers likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. Finally, the orthopedic examiner was asked to indicate whether the Veteran has any neurological conditions related to the Veteran's service-connected spine disability. The Board finds that the RO has complied with these instructions. In February 2009, the RO sent the Veteran a letter which asked him to provide information and release forms regarding any additional treatment for his lumbar spine disorder. In response, the Veteran provided copies of service treatment records and VA medical records, which pertain to his claim for entitlement to service connection for a cervical spine disorder, which is being remanded herein. In addition, the Veteran provided a release form for his private physician. The RO obtained these private medical records, and additional VA medical records showing treatment through April 2009. Finally, the Veteran was provided a VA examination on July 22, 2009, which adhered to the requirements set out in the Board's January 2009 remand instructions. Significantly, neither the appellant nor his or her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Because this appeal involves initial ratings for which service connection was granted and an initial disability rating was assigned, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Furthermore, consideration should also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). At his Travel Board hearing, the Veteran contended that he had a fracture at L5, which had been missed. He indicated that he could not stand longer than 15 minutes, and that he required medication for the pain in his lower back. He also indicated that he had bowel incontinence and erectile dysfunction, which he felt was related to his service-connected lumbar spine disability. The Veteran contends that his service-connected lumbar spine disorder warrants a higher disability rating throughout the appeals period. The Veteran's lumbar strain with scoliosis is service-connected under Diagnostic Code 5237, pertaining to lumbosacral strain, at a 20 percent disability rating prior to July 22, 2009, and a 40 percent disability rating as of July 22, 2009. Diagnostic Code 5237 is rated under the General Formula for Diseases and Injuries of the Spine (General Formula), unless Diagnostic Code 5243, pertaining to IVDS, is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under the General Formula, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Under the Formula for Incapacitating Episodes, a 10 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, a 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Evaluation of initial disability rating prior to July 22, 2009 An April 2004 private medical record shows that the Veteran's range of motion of his thoracolumbar spine was flexion to 60 degrees, with the rest of the range of motion measurement resulting in normal ranges of motion. A November 2004 VA examination report shows that the Veteran indicated that he had pain in his lower back twice a day, for about 10 to 15 seconds, and that this pain radiated into the left buttock. He denied erectile dysfunction and bowel incontinence. The Veteran reported that he had not been prescribed bedrest in the prior year for his lumbar spine disability. Upon examination, there was mild to moderate loss of the normal lumbar lordosis, and no calor or rubor of the lumbar spine. Range of motion was flexion to 55, with pain beginning at 48, extension to 48, with pain beginning at 41.5, lateral bending at 26, with pain beginning at 24 to the right, lateral bending to 34 with pain beginning at 33 degrees to the left, rotation to 60 degrees to the right with discomfort and to 70 degrees to the left. The examiner noted that five repetitions of flexion of the lumbar spine exacerbated his level of pain "a little" and limited his range of motion, on the last repetition, to 31 degrees. The examiner diagnosed lumbar strain, with mild leveconvex scoliosis. A November 2004 VA magnetic resonance imaging study (MRI) of the lumbar spine revealed mild scoliosis convex to the left in the mid lumbar spine, with an otherwise unremarkable examination pertaining to the lumbar spine. A July 2008 VA examination report shows that the Veteran reported pain in his low back, which was aching and sharp in nature, and traveled down the leg. The Veteran indicated that he took medication for the pain, and that the impairments from his low back disability included erectile and bowel dysfunction. Upon examination, the Veteran reported radiating pain on movement to the left buttock. Tenderness was noted over the lumbar spine and paravertebral muscle. Straight leg raising was negative on both sides and the examiner noted that there was no ankylosis. Range of motion of the lumbar spine was forward flexion to 70 degrees, with pain beginning at 70 degrees, extension to 30 degrees, with pain beginning at 0 degrees, right lateral flexion to 30 degrees, with pain beginning at 0 degrees, left lateral flexion to 25 degrees, with pain beginning at 25 degrees, right rotation to 30 degrees, with pain beginning at 0 degrees, and left rotation to 25 degrees, with pain beginning at 25 degrees. After repetitive movement, the joint function was additionally limited by pain. The joint function was not additionally limited by fatigue, weakness, lack of endurance or incoordination after repetitive use. There was no additional limitation. The inspection of the spine showed that the position of the head was normal with symmetry in appearance. There was symmetry of spinal motion and curvatures of the spine were within normal limits. The examiner noted that, upon neurological examination, there was evidence of IVDS with nerve root involvement of the lumbosacral spine at L1-S1, with deficits to the right thigh. The examiner noted that the most likely peripheral nerve involved was the femoral nerve and the sciatic nerve. The examiner noted that the Veteran's IVDS did not cause bowel or bladder dysfunction but did cause erectile dysfunction. The examiner concluded, as to the neurological portion of the examination, that motor function of the Veteran's lower extremities was normal, and sensory function was abnormal with decreased pinprick sensation L1-S1 on the right. VA medical records reflecting treatment from May 2008 through April 2009 showed that the Veteran had been certified for physical therapy through May 2009. A March 2009 MRI revealed no evidence of acute or chronic lumbar spine abnormality, and a March 2009 x-ray revealed spina bifida occulta at S1 with an otherwise normal lumbosacral spine. An April 2009 VA medical record showed that the Veteran had radicular symptoms to the left leg. Loss of range of motion was moderate in flexion, minimal in extension, nil in lumbar slideglide to the right and moderate in lumbar slideglide to the left. Repeated motion increased pain. Private medical records showing treatment from December 2008 through February 2009 reflect that the Veteran was seen for mid/lower back pain. These records show that the Veteran had a fracture at L5 while on active duty and acute and moderate misalignments of the lumbar spine. It appears that the Veteran attended physical therapy through the beginning of February 2009. The Board finds that, based upon the evidence of record, the Veteran's lumbar spine disability does not warrant a disability rating in excess of 20 percent prior to July 22, 2009. As noted above, in order to warrant a 40 percent disability rating, the evidence would need to show forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. However, in this case, prior to July 22, 2009, the Veteran's forward flexion was consistently greater than 30 degrees, even factoring in pain. In April 2004, flexion was to 60 degrees. In November 2004, flexion was to 55 degrees with pain beginning at 48 degrees, and in July 2008, to 70 degrees, with pain at 70 degrees. While the April 2009 private medical record shows that the Veteran had moderate limitation of flexion of his lumbar spine, there is no evidence that this was to 30 degrees or less. With further regard to the Deluca provisions, the July 2008 examiner noted that pain was the only limiting factor in the Veteran's lumbar spine function-there was no additional limitation of function from fatigue, weakness, lack of endurance or incoordination after repetitive use. The Board noted that the effect of the pain on the function of the Veteran's spine has been accounted for in the fact that the examiner noted when pain began in his range of motion limitations, and the Board considered this in determining whether the Veteran's limitation of motion met the criteria for a higher disability rating. In addition, there is no evidence of ankylosis of the Veteran's spine. In fact, the July 2008 VA examiner specifically noted that there was no ankylosis in the Veteran's lumbar spine. As such, a higher disability rating under the General Formula is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Since the Veteran has been diagnosed with IVDS by the June 2008 VA examiner, the Board has considered rating him under Diagnostic Code 5243 using the Formula for Incapacitating Episodes; however, there is no evidence that the Veteran has had any incapacitating episodes pursuant to the regulations, prior to July 22, 2009. In fact, at his November 2004 VA examination, the Veteran indicated that he had not been prescribed bedrest by a physician in the prior year. 38 C.F.R. § 4.71, Diagnostic Code 5243. Evaluation of initial disability rating as of July 22, 2009 A July 2009 VA examination reflected that the Veteran reported pain in his lower back which radiated into his left buttock and thigh. He indicated that he had a feeling of poor coordination in his lower extremities and popping in his back. He also reported bowel and erection problems. Upon examination, there was no tenderness in the midline or paraspinous muscle in the thoracic spine. There was tenderness in the midline in the lumbosacral spine and mild tenderness in the paraspinous muscle in the lumbosacral spine. There were no muscle spasms and no atrophy in the lower extremities. Range of motion was flexion to 15 degrees, extension to 15 degrees, lateral flexion to 20 degrees on the left and the right, and rotation to 25 degrees on the left and right. The examiner noted that flexion and extension were limited by pain. With three repetitions, the examiner did not note any additional loss of motion because of pain, weakness or endurance of incoordination. The examiner noted that pain had the greatest effect on function of the thoracolumbar spine, and that the Veteran had not had any incapacitating episodes over the previous year, but that he was asked to stay home from work and stay in bed for three days by a chiropractor the previous winter. Upon neurological examination, the examiner noted that knee and ankle reflexes were 1+/3 and equal, there was mild left ankle muscle weakness on muscle strength testing with dorsiflexion on the left ankle and eversion of the left foot. There was no numbness in the L5 or S1 distributions, and there was no atrophy noted. There was no numbness to light touch over the low back, thighs, legs or feet. Straight leg raising was positive for hamstring with hamstring tightness more on the right than on the left, but with no sciatica at 60 degrees bilaterally. He had mild left buttock tenderness near the sciatic notch, but no tenderness in the right buttock near the sciatic notch. The impression was lumbosacral strain, no sciatica and a limited range of motion of the lumbar spine. The examiner concluded that the Veteran's functional impairment of his lumbosacral spine was moderately severe. He noted that there was no evidence of any type of paralysis of the upper or lower extremities, no sciatic in the lower extremities and no evidence of nerve entrapments in the lower extremities. Finally, the examiner noted that the Veteran had missed 10 days of work in the previous year, due to back or neck pain, but that he continued to function at a job full time. The Board finds that, based upon the evidence of record, the Veteran's service-connected lumbar spine disability does not warrant a higher disability rating as of July 22, 2009. As noted above, in order to warrant a higher disability rating under the General Formula, the evidence would need to show unfavorable ankylosis of the entire thoracolumbar spine. However, in this case, there is no evidence that the Veteran has ankylosis of his thoracolumbar spine as of July 22, 2009. As such, a higher disability rating based upon this symptomatology is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Finally, the Board has considered rating the Veteran's service-connected lumbar spine disability under Diagnostic Code 5243, for IVDS, on the basis of incapacitating episodes; however, there is no evidence that the Veteran has had any incapacitating episodes as a result of his service-connected lumbar spine disability. The July 2009 examiner even noted that he did not have any incapacitating episodes. Therefore a higher disability rating under Diagnostic Code 5243, for incapacitating episodes, is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As the preponderance of the evidence is against the Veteran's claims for increased ratings for his lumbar spine disability, throughout the appeals period, the "benefit-of-the-doubt" rule is not applicable and the Board must deny his claims. See 38 U.S.C.A. § 5107(b). Separate disability ratings for neurological manifestations The Board notes that the rating criteria pertaining to disabilities of the spine provide for separate disability ratings for any associated neurological abnormalities, including but not limited to bowel impairment, separately, under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a. In this case, the Veteran has indicated that he has bowel incontinence which is associated with is service-connected lumbar spine disability. However, medical evidence of record does not reflect that this is related to his lumbar strain with scoliosis. At his November 2004 VA examination, the Veteran denied any bowel incontinence. The July 2008 examiner found that the Veteran's IVDS did not cause his bowel dysfunction. None of the other examiners found that his bowel incontinence was related to his service-connected lumbar spine disability. As such, a separate disability rating for his bowel incontinence is not warranted. The Board notes that, at his November 2004 and July 2008 VA examinations, the Veteran reported pain that extended from his low back into his left buttock. However, other than these subjective reports, there is no other evidence of a neurological manifestation of his service-connected lumbar spine disability in his left lower extremity. Pursuant to the regulation, to warrant a separate disability rating, there need to be evidence of objective neurological abnormalities. Id. With regard to his right lower extremity, however, the evidence of record is in relative equipoise with regard to neurological manifestations associated with his service-connected lumbar spine disability. While the July 2009 VA examiner found that the Veteran had no sciatica associated with his lumbar spine disability, the July 2008 examiner noted deficits to the right thigh, and that the most likely nerves involved were the femoral or sciatic nerves. The examiner also noted decreases pinprick sensations on the right. As such, since the evidence regarding whether the Veteran has any neurological manifestations in his right lower extremity is in relative equipoise, the Board resolves all reasonable doubt in favor of the Veteran and finds that a separate disability rating of 10 percent is warranted for the Veteran's neurological manifestations associated with his service-connected lumbar spine disability in his right thigh. Based upon the evidence of record, the Board finds that the appropriate Diagnostic Code for this rating is 8526, pertaining to the femoral nerve, with symptoms appearing in the quadriceps. 38 C.F.R. § 4.124a, Diagnostic Code 8526. Extraschedular Evaluation 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 Board concludes that the Veteran's disability does not present such an exceptional disability picture such that his current disability rating is inadequate. Second, the range of social and employment impairment caused by Veteran's lumbar spine disability is clearly contemplated by the Diagnostic Codes pertaining to spinal disorders. Finally, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization during the appeal period. Nor does the evidence show that the Veteran's service-connected lumbar spine alone causes his unemployment, to suggest that the Veteran is not adequately compensated by the regular Rating Schedule, beyond the level of already compensated employment impairment. Thus, the evidence does not support referring this case for an extraschedular evaluation. 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 An initial disability rating in excess of 20 percent for lumbar strain with scoliosis, prior to July 22, 2009, is denied. An initial disability rating in excess of 40 percent for lumbar strain with scoliosis, as of July 22, 2009, is denied. A separate evaluation of 10 percent, but no more, from July 9, 2008, for radiculopathy of the right lower extremity, is granted, subject to the laws and regulations governing the payment of VA monetary benefits. REMAND In a September 2010 rating decision, the RO granted service connection for degenerative disc disease and degenerative joint disease of the facets and cervical spine and assigned a disability rating of 20 percent. In a June 2011 Written Brief Presentation, the Veteran's representative indicated that the Veteran felt that his disability rating did not accurately reflect the severity of his conditions. The Board interprets this as a timely notice of disagreement (NOD) with disability rating assigned in the RO's September 2010 rating decision. Because the Veteran has filed a notice of disagreement with regard to this issue, the issuance of a statement of the case is required. Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. §§ 20.201, 20.300 (2010). After the AOJ issues a statement of the case, then if, and only if, the Veteran timely files a VA Form 9, Substantive Appeal, or other correspondence containing the necessary information with respect to the issue of a higher initial disability rating for his service-connected degenerative disc disease and degenerative joint disease of the facets and cervical spine, this issue may be returned to the Board for adjudication. Accordingly, the case is REMANDED for the following action: Send the Veteran a statement of the case addressing the Veteran's claim for a higher initial disability rating for his service-connected degenerative disc disease and degenerative joint disease of the facets and cervical spine. The AOJ should inform the Veteran that in order to complete the appellate process, he should submit a timely substantive appeal to the AOJ. If the Veteran completes his appeal by filing a timely substantive appeal, this matter should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs