Citation Nr: 1133445 Decision Date: 09/09/11 Archive Date: 09/15/11 DOCKET NO. 09-09 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from January 10, 2007. 2. Entitlement to an initial evaluation greater than 10 percent for degenerative arthritis of the back from January 10, 2007 to March 9, 2008. 3. Entitlement to an initial compensable evaluation for degenerative arthritis of the back from March 10, 2008. 4. Entitlement to a separate evaluation(s) for neurologic abnormalities associated with the service-connected degenerative arthritis of the back. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran had active service from June 1970 to April 1972 and from February 1979 to October 1982. His military records reflect that he was a helicopter pilot in the United States Army and served in the Republic of Vietnam. His military decorations include the Army Aviator Badge and the Bronze Star Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, granted the Veteran service connection for PTSD and degenerative arthritis of the back, effective January 10, 2007 (i.e., the date on which the Veteran filed his original claim for VA compensation for these disabilities). He currently appeals the original evaluations assigned to these service-connected disabilities. Thus, adjudication of this claim must include consideration of whether or not the assignment of separate "staged" ratings for his psychiatric and orthopedic disabilities for separate periods of time is warranted, from January 10, 2007, to the present, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). In September 2009, the Veteran testified at a hearing at the RO before the undersigned traveling Veterans Law Judge. A transcript of this hearing has been associated with the claims file for the Board's consideration. At this hearing, the Veteran raised an informal claim for service connection for a cervical spine disability. As this issue has yet to be addressed and adjudicated by the Agency of Original Jurisdiction, it is referred to the RO for appropriate action. During the course of this appeal, a November 2009 Board decision granted the Veteran a 70 percent schedular evaluation for PTSD and a 10 percent initial evaluation for degenerative arthritis of the back prior to March 10, 2008, with a noncompensable evaluation taking effect as of that date. The Board's decision was implemented by the RO in a December 2009 rating decision, which made the 70 percent rating for PTSD effective from January 10, 2007, and the 10 percent evaluation for degenerative arthritis of the back effective from January 10, 2007 to March 9, 2008, with the zero percent rating taking effect March 10, 2008. (Subsequently, in an August 2010 rating decision, the Veteran was also awarded a total rating for individual unemployability due to service-connected disabilities (TDIU), effective from March 10, 2008.) In June 2010, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion of the appellant and the Secretary of VA to remand that part of the November 2009 Board decision that denied an initial rating greater than 70 percent for PTSD, an initial evaluation greater than 10 percent for degenerative arthritis of the back prior to March 10, 2008, and a compensable evaluation for degenerative arthritis of the back as March 10, 2008. The case was received by the Board pursuant to the Court's remand in September 2010. As relevant, in March 2011, the private attorney who represented the Veteran since his appeal before the Court moved to withdraw further representation of the Veteran in the current matter. The motion was granted and the Veteran was subsequently informed by the Board in an April 2011 letter that he was now without representation and was offered the opportunity to appoint a new representative within 30 days of dispatch of the letter. In the absence of a timely response, the Veteran was advised that the Board would assume that he elected to represent himself. The file indicates that no timely response to the Board's inquiry in this regard was received, and the Veteran is now assumed to be his own representative, pro se, in the present appeal. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2010). For the reasons that will be further discussed below, the issue of evaluating the neurological component(s) of the Veteran's service-connected degenerative arthritis of the back is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C., for additional development. The Veteran will be contacted by VA if any further action in required on his part. FINDINGS OF FACT 1. The Veteran's PTSD symptoms have primarily included nightmares, flashbacks, near total social isolation, irritability, concentration difficulties, homicidal ideations, paranoia, and extreme limitations on his employability; collectively, these symptoms are indicative of total occupational and social impairment from January 10, 2007. 2. Prior to March 10, 2008, the Veteran's degenerative arthritis of the back was manifested by X-ray evidence of degenerative changes of his thoracolumbar spine, complaints of back pain, pain on motion, and functional loss of use, and clinical findings of forward thoracolumbar flexion limited to 40 degrees during episodic flare-ups of elevated orthopedic symptoms. 3. Effective from March 10, 2008, the Veteran's degenerative arthritis of the back has been manifested by X-ray evidence of degenerative changes of his thoracolumbar spine, with complaints of daily back pain with flare-ups that are alleviated by yoga and special stretching and deep breathing exercises, and clinical findings showing full range of motion with no loss of motion during flare-ups. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of the doubt, the criteria for an initial 100 percent schedular rating for PTSD have been met since the effective date of the grant of service connection. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an initial 20 percent rating, but no higher, for degenerative arthritis of the back have been met, effective prior to March 10, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003-5010, 5242 (2010). 3. Effective from March 10, 2008, the criteria for an increased 10 percent rating, but no higher, for degenerative arthritis of the back have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5010, 5242 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The law and regulations for increased rating claims, generally. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). (a.) Entitlement to an initial rating in excess of 70 percent for PTSD from January 10, 2007. With respect to the Veteran's claim of entitlement to an initial rating in excess of 70 percent for PTSD from January 10, 2007, as the benefit sought on appeal is being granted in full, as discussed below, the Board finds that any error related to the Veterans Claims Assistance Act of 2000 (VCAA) (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)) on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Therefore, there is no need to engage in any analysis with respect to whether the notice requirements of the VCAA or whether VA's duty to assist the Veteran in the development of his increased rating claim with regard to his PTSD have been satisfied. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran's PTSD has been evaluated as 70 percent disabling, effective from January 10, 2007, pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. As relevant, the Veteran is a trained helicopter pilot who flew rotary-winged aircraft during active service. The United States Center for Unit Records Research has objectively confirmed his accounts of in-service exposure to combat-related stressors that have been objectively linked to his current Axis I diagnosis of PTSD. VA clinical examination reports and outpatient counseling notes dated March 2007 to March 2008 reflect a Global Assessment of Functioning (GAF) score of 35 - 45, indicating that the Veteran had, at its most severe, some impairment in his reality testing or communications and major impairment in his work capacity, family relations, judgment, thinking, or mood. The records from this period reflect that he was homeless and adopted a solitary lifestyle, living by himself in the woods inside a tent, which was a manifestation of PTSD-induced withdrawal from society. Although the records indicate that he lost his home in a sheriff's sale, it is evident that this was the result of his being unable to pay his mortgage because his severe tendency towards social withdrawal rendered him unable to maintain employment. Although he denied being suicidal or of having any significant history of psychiatric hospitalization, he expressed homicidal ideation overlaid with paranoia and indicated that he controlled these aggressive feelings with yoga exercises. In a March 2008 letter, a VA counselor reported that he had been treating the Veteran since March 2007, at which time he had lost his home in a sheriff sale and was living in a tent in the woods. The counselor noted that this lifestyle suited the Veteran, as he had difficulties interacting with other people and chose to live in solitude. The Veteran reported having nightmares and traumatic memories about his service in Vietnam, which prevented him from establishing and maintaining close relationships and affected his ability to maintain active employment. He displayed a great deal of distrust and cautiousness in dealing with others to such a degree that the counselor opined that holding a job would seem highly unlikely for the Veteran. He had been asked to get involved with VA Career Link and Vocational Rehabilitation, but both situations ended poorly, with the Veteran becoming angry and frustrated. He reportedly got into a verbal confrontation in response to the frustration he was feeling, and the VA counselor noted this seemed to be a pattern that had occurred in the past, preventing him from working or dealing effectively with others. On VA examination on March 10, 2008, the Veteran reported he worked for a brief period of time following his military service but indicated that it was very sporadic and limited to a few flying jobs in the Reserves until approximately 1983. He had had difficulty interacting with others and preferred to live alone. His irritability and concerns about anger lead him to believe that a socially withdrawn life would be more preferential, and for this reason he preferred to live in solitude. He believed that limiting his contact with others and performing yoga and other relaxation techniques had assisted him in staying calm. His last and most meaningful job was with a vacuum furnace manufacturer that ended in 2006 after 5 years of employment. He had PTSD-related memory flashbacks that were triggered by loud and unexpected noises, hearing airplane or helicopter engines, smelling diesel fuel, or smelling or tasting Asian cuisine. VA mental status examination in March 2008 showed the Veteran to be alert, oriented, appropriately dressed, and adequately groomed. He was responsive to questions and engaged in spontaneous conversation. His affect was stable, but did reflect a decrease in range and intensity secondary to PTSD-related symptomatology. His thought processes were logical and goal directed, and his thought content was free of suicidal ideation. He acknowledged having homicidal ideation throughout the years and emphasized his preference to remain alone so that he could not act on such ideations. There was no evidence of visual hallucinations, but he acknowledged being paranoid. He had difficulty with concentration. The examiner noted that the most significant symptomatic feature of the Veteran's PTSD related to his social withdrawal from others and preference to remain alone where he was able to tend to his personal needs and live independently. He had difficulty forming effective relationships with others. The examiner saw no evidence of cognitive or intellectual decline. The diagnoses included PTSD, chronic, severe. A GAF score of 35 was assigned, indicating some impairment in reality testing or communications and major impairment in work capacity, family relations, judgment, thinking, or mood. The examiner indicated in the March 2008 VA examination report that the Veteran's PTSD had a significant and adverse impact on his interpersonal and social functioning, given his preference to lead a socially withdrawn lifestyle, living in solitude in the woods, away from the community. He had no close friends or confidants other than one or two individuals and had never been able to form close, affectionate relationships with others to the degree where he could marry and/or have children. The examiner noted that the Veteran's social withdrawal had limited his ability to maintain any type of employment, and that although he had been effective on the job when employed, his difficulty following rules or guidelines had been a definite detriment. The examiner considered the Veteran to be almost unemployable because of extreme withdrawal. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Considering the medical evidence of record as well as the Veteran's statements and hearing testimony of September 2009, and the statements from his sister and father, and affording the Veteran the benefit of the doubt (see 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102), the Board determines that the Veteran's PTSD symptomatology more closely approximates a 100 percent schedular rating on the basis of clinical evidence indicating that he has total occupational and social impairment due to gross impairment in thought processes or communication and grossly inappropriate behavior, particularly his intense social withdrawal resulting in his virtual isolation from the community at large. The Board acknowledges that not all relevant PTSD symptomatology is addressed by all treatment records and evaluations. In determining that the criteria for a 100 percent rating for the Veteran's PTSD are met during the entire time frame under consideration, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for PTSD. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the Board finds that the Veteran's psychiatric disability is productive of total occupational and social impairment due to flashbacks, severe social isolation, irritability, concentration difficulties, homicidal ideations, paranoia, and extreme limitations on his employability. The Board also observes that the Veteran has been assigned a GAF score of 35. A GAF score of 31-40 contemplates some impairment in reality testing or communications (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. Taking the above into consideration, the Board determines that the Veteran's PTSD symptomatology more closely approximates a 100 percent schedular disability rating for the entire relevant period of the claim, from January 10, 2007. 38 C.F.R. § 4.7. The Board notes at this juncture that the Veteran was granted a TDIU effective from March 10, 2008. As this appellate decision confers upon him the greater benefit by granting a total schedular rating from the date of claim (i.e., January 10, 2007), the RO should accordingly revise its TDIU award when implementing this fully favorable appellate decision. (b.) Entitlement to an initial evaluation greater than 10 percent for degenerative arthritis of the back from January 10, 2007 to March 9, 2008, and a compensable evaluation for degenerative arthritis of the back from March 10, 2008. The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Initially, the Board notes that the initial rating issue that will be addressed on the merits flows from an April 2008 rating decision that established service connection for degenerative arthritis of the back, effective from January 10, 2007 (the date on which the Veteran filed his original claim for VA compensation for this disability). The Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), 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. Thus, because the 5103(a)-compliant VCAA notice that was provided before service connection was granted (i.e., correspondence dated in March 2007 and May 2007) was legally sufficient, VA's duty to notify in this case is satisfied with respect to the back disability claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Board observes that written correspondence from the Veteran in support of his claim, and relevant VA medical records relating to his outpatient treatment for the period from 2007 to 2008 have been obtained and associated with the claims file. The Veteran has not otherwise indicated that there are any outstanding relevant medical records or other pertinent evidence that must be considered in this current appeal with respect to his claim for higher initial evaluations for degenerative arthritis of the back. The Board is thus satisfied that the evidence is sufficiently developed for appellate adjudication with respect to this issue and that no further development in this regard is necessary. The Board observes that the Veteran was provided with VA orthopedic examinations addressing his back disability, which were conducted in June 2007 and March 2008. An assessment of the severity of the Veteran's orthopedic disability was presented in each examination's report, which was supported by clinical rationales based on the examiners' interviews of the Veteran and a review of his relevant history. The Board finds no deficit in the VA orthopedic examination reports of record that would render their clinical findings unusable, and therefore deems them to be adequate for purposes of adjudicating the claim for higher initial ratings for degenerative arthritis of the back. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his increased initial ratings claim for degenerative arthritis of the back decided herein with respect to the musculoskeletal components of this disability, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's degenerative arthritis of the back is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010, which provides that arthritis due to trauma substantiated by X-ray findings will be rated as degenerative arthritis. The schedule provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint or joints involved that is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Disabilities of the spine are 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, including degenerative arthritis of the spine (Diagnostic Code 5242). In that regard, the General Rating Formula provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; 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; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a., Diagnostic Code 5242. Note (2) provides 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. On VA examination in June 2007, the Veteran reported that he injured his back in service in a parachuting jump. He reported having pain in the thoracolumbar area at a constant level of pain of 3 or 4 out of 10, with pain radiating to his left upper and left lower extremities. He complained of stiffness and weakness in the back. Flare-ups of back pain were reportedly precipitated by sleeping in the wrong position. He reported having flare-ups every day, where his pain level increased to 10 out of 10 and lasted for 3 to 5 days. It was noted that he had additional limitation of motion of 20 - 30 degrees secondary to pain, and sometimes total functional impairment. His back also bothered him while standing, walking, or running for a long period of time, and with bending, twisting, or lifting weight. He reported in the last 12 months he had three incapacitating episodes that lasted 5 to 6 days and he had to stay in bed. He reportedly quit his last job in April 2006, and was unable to maintain a job thereafter, because of his low back symptoms. He was able to ride a mountain bike, but was unable to do any other recreational activities due to his low back. Examination showed paraspinal muscle spasm in the thoracic area and in the lower lumbar area, with paraspinal tenderness but no edema, redness, effusion, or swelling. Range of motion testing of the thoracolumbar spine showed forward flexion was to 70 degrees, extension to 10 degrees, and bilateral flexion and rotation to 20 degrees. He was in severe pain throughout the range of motion and was unable to do 3 repetitions secondary to pain. X-rays of the thoracolumbar spine showed degenerative changes. The diagnoses were thoracolumbar spine degenerative arthritis and thoracolumbar sprain. On VA examination conducted on March 10, 2008, the Veteran reported daily pain in the thoracic spine, subjectively reported as being level 2, but with random flare-ups the subjective level could go as high as 8. He reported that his subjective lumbar pain was at level zero, but could be as high as 8, with pain radiating to the left axillary area and the left sciatic nerve distribution. He reported that his back pain persisted until he performed self-manipulation of the spine, with yoga or deep breathing exercises. He described the back pain as being sharp. He reported that he did not have additional limitation of motion, which he attributed to yoga. Mild numbness in the left sciatic distribution was reported. He used no assistive devices or braces and could walk without difficulty. Examination revealed full range of motion, even after 10 repetitions, with intact strength. There was straightening of the lumbar curve. He reported practicing yoga exercises daily and was very flexible, and that following these exercises he still experienced pain in his upper back and burning pain in his left thoracic spine. X-rays revealed degenerative changes in the lumbosacral spine with narrowing of L5 - S1, and degenerative changes in the thoracic spine. In September 2009, the Veteran testified that he only slept one or two hours a night because of his back pain, including sciatic pain down the left leg. The Veteran is seeking entitlement to an initial rating above 10 percent prior to March 10, 2008, and a compensable rating as of March 10, 2008, for his service-connected degenerative arthritis of the back. The record reflects that service connection has been established for the Veteran's thoracic and lumbar spine arthritis. Thus, in order to warrant the assignment of a 10 percent rating, the evidence must demonstrate forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. The Board notes that on VA examination in 2007, the clinical findings regarding the Veteran's thoracolumbar spine met the criteria for the assignment of a 10 percent disability rating under both Diagnostic Codes 5242, 5003, and 5010. In that regard, the Board notes that the Veteran complained of back pain with flare-ups, and was objectively shown to have flexion to 70 degrees, a combined range of thoracolumbar motion of 160 degrees, muscle spasms, tenderness, and no gait impairment. However, the 2007 examination report also indicates that there is additional range-of-motion loss due to pain on use or during flare-ups beyond that clinically demonstrated, with additional limitation of motion of 20 - 30 degrees secondary to pain, and sometimes total functional impairment. 38 C.F.R. §§ 4.40, 4.45 and the Court's decision in DeLuca v. Brown, 8 Vet. App. 202 (1995), provide that evaluating a claimant's musculoskeletal disability must also consider additional limitation of motion and functional loss due to prolonged use or episodic flare-ups. Thus, subtracting an additional 30 degrees of range of motion loss from the clinically demonstrated 70 degrees of forward flexion to represent his limitation of motion when his back disability is at its worst, the Veteran's forward flexion was limited to 40 degrees, thereby meeting the criteria for a 20 percent evaluation. An evaluation higher than 20 percent is not warranted, however, as the clinical evidence does not demonstrate ankylosis of his thoracolumbar spine or forward flexion limited to 30 degrees or less, as contemplated by the rating schedule. Thus, the Board finds that an initial 20 percent disability rating is warranted for degenerative arthritis of the back, for the period prior to March 10, 2008, based on the competent evidence of record at the time of the June 2007 VA examination. However, on the most recent VA examination on March 10, 2008, although the Veteran complained of daily back pain, he demonstrated full range of motion of the thoracolumbar spine, with no indication of muscle spasm or tenderness. Although reporting flare-ups, he indicated that these were resolved after he performed deep breathing, yoga, and self-manipulation exercises. He also indicated that he did not have any additional limitation of thoracolumbar motion, attributed to his yoga, which he reportedly practiced on a daily basis. Thus, the Board finds that as of March 10, 2008, the schedular criteria for the assignment of a compensable disability rating under Diagnostic Code 5242 were not met. The Board has considered whether an increased disability rating is warranted for the Veteran's back disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, but his range of motion has been reported as full and he was found to have no additional loss of motion. Moreover, he reported being able to resolve his flare-ups through yoga and special breathing and stretching exercises. Based on these findings, the Board finds that the competent evidence does not demonstrate a functional loss equivalent to limitation of motion, pursuant to 38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202 (1995), and Diagnostic Code 5242. That said, the Veteran's competent and credible account of experiencing daily back pain and the radiographic evidence of degenerative arthritic changes affecting his thoracolumbar spine is sufficient in itself to warrant the assignment of a 10 percent evaluation from March 10, 2008, on the basis of Diagnostic Code 5003-5010. (c.) Extraschedular Consideration The Board notes it need not consider whether an extraschedular evaluation is warranted for the Veteran's PTSD, as he is assigned the maximum evaluation of 100 percent herein. Further, the Veteran's service-connected degenerative arthritis of the back does not warrant referral for extraschedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1) (2010). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Comparing the Veteran's back symptomatology with the criteria found in the rating criteria, it is clear that the Veteran's disability picture is adequately contemplated. The Veteran is assigned schedular evaluations based on limitation of motion and muscle spasm and tenderness. Evaluations for greater levels of impairment are contained within the rating schedule. The rating criteria encompass the Veteran's complaints and clinical findings. The Board notes that there has been no indication the Veteran has been frequently hospitalized due to his degenerative arthritis of the back. The Board finds no clinical evidence of such an unusual or exceptional disability picture at any time during the course of this claim as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b). The ratings of 20 percent prior to March 10, 2008, and 10 percent as of March 10, 2008, adequately contemplate the impact that the back disability has on his employability. The evidence, however, does not reflect that this orthopedic disability causes marked interference with his employment capacity beyond that already contemplated in the assigned evaluations, such that application of the regular schedular standards is rendered impracticable. Hence, referral for the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER A 100 percent schedular evaluation for PTSD from January 10, 2007, is granted, subject to controlling regulations applicable to the payment of monetary benefits. A 20 percent evaluation for degenerative arthritis of the back from January 10, 2007 to March 9, 2008, is granted, subject to controlling regulations applicable to the payment of monetary benefits. A 10 percent evaluation for degenerative arthritis of the back from March 10, 2008, is granted, subject to controlling regulations applicable to the payment of monetary benefits. REMAND The clinical evidence shows that in June 2007, the Veteran reported having three incapacitating episodes of low back pain in the previous 12 months and that each lasted 5 to 6 days and forced him to stay in bed. During examination in March 2008, he reported lumbar pain radiating to his left axillary area and left sciatic nerve distribution, with mild numbness in the left sciatic nerve distribution. However, the examination reports do not contain further discussion or diagnoses relating to this history or the Veteran's reported neurological symptoms. As the pertinent rating schedule also allows for evaluating spine disabilities on the basis of incapacitating episodes due to intervertebral disc syndrome (IVDS), using whichever method results in a higher evaluation for the claimant, and as this aspect of the Veteran's back disability claim, while properly before the Board as a component of the increased rating claim on appeal, has not been adequately developed and considered by the RO in the first instance, the matter should be remanded to the RO via the AMC for a medical examination to determine its severity and then rate it accordingly. Thusly, in view of the foregoing discussion, the case is REMANDED to the RO via the AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The RO should undertake the appropriate measures to ensure that all clinical records, both VA and private, which pertain to the Veteran's treatment for his service-connected back disability after March 10, 2008 (the date of the most current VA orthopedic examination of record) are obtained and associated with his claims file. 2. Afterwards, the RO should arrange for the Veteran to undergo the appropriate VA examination for spine disorders for the purpose of ascertaining whether it is at least as likely as not (to at least a 50 percen6t degree of probability) that there is a neurological component of his service-connected degenerative arthritis of his back. Any indicated diagnostic tests and studies must be accomplished. Any neurologic manifestations found to be component of the service-connected degenerative arthritis of the back, to include bowel or bladder impairment, must be set forth and described in detail. The examiner must review pertinent documents in the Veteran's claims folder in conjunction with the examination and the examination report should reflect that such review was conducted. If the examiner determines that intervertebral disc syndrome of the thoracolumbar spine is present, he/she should provide an opinion as to whether it is at least as likely as not (to at least a 50 percent degree of probability) a manifestation of, or part and parcel to the Veteran's service-connected degenerative arthritis of the back. If the examiner concludes that intervertebral disc syndrome is associated with the service-connected degenerative arthritis of the back, he/she must address the question of whether there are incapacitating episodes of elevated symptomatology associated with the intervertebral disc syndrome and, if so: (i) Is the intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least one week but less than 2 weeks during the previous 12 months? (ii) Is the intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months? (iii) Is the intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months? (iv) Is the intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months? Note: 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. A complete rationale for all opinions must be provided. If the opining physician is unable to do so without resorting to speculation, it must be so noted and explained why this is so. 3. Mindful of the Veteran's established propensity for social withdrawal due to PTSD, the RO should notify the Veteran that it is his responsibility to report for the aforementioned examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained and added to the claims file which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Thereafter, the claims file must be reviewed to ensure that all of the foregoing requested development has been completed. After all appropriate evidentiary development has been completed, the RO should readjudicate the Veteran's claim of entitlement to an increased evaluation for degenerative arthritis of the back on the basis of incapacitating episodes of intervertebral disc syndrome and entitlement to a separate evaluation(s) for associated objective neurologic abnormalities. If the maximum benefit in this regard remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs