Citation Nr: 1133494 Decision Date: 09/09/11 Archive Date: 09/15/11 DOCKET NO. 99-15 580A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for thoracolumbar degenerative disc disease (DDD), prior to March 6, 2009. 2. Entitlement to an effective date prior to March 6, 2009, for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran served on active duty from June 1981 to June 1985. The procedural history of this case was set forth in a March 2010 decision of the Board of Veterans' Appeals. In that Board decision it was noted that an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, granted service connection cervical spine DDD and for thoracolumbar DDD, with each being assigned initial 20 percent disability ratings, all effective October 23, 2002 (date of receipt of claim consisting of a private attorney's letter). A notice of disagreement (NOD) to these initial ratings was received in October 2005 and after an statement of the case (SOC) was issued in August 2006, the appeal was perfected by filing VA Form 9 in September 2006, in which the Veteran requested the opportunity to testify at a Board hearing at the RO (called a travel Board hearing). This was clarified in October 2006 to be a request for a videoconference. A July 2009 rating decision granted an increase in the 20 percent rating for thoracolumbar DDD to 40 percent, effective March 6, 2009 (date of VA examination). That rating decision also granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) and established basic eligibility to Dependents' Educational Assistance, both from March 6, 2009. By letter dated in October 2009, the Veteran's attorney disagreed with the effective date of March 6, 2009, for the assignment of a TDIU rating (alleging unemployability since at least 2002). The Veteran and his attorney were notified of a hearing that was scheduled in November 2009. There is now on file a copy of an October 2009 letter from the Veteran's attorney withdrawing the request for a hearing. The March 2010 Board decision denied an initial rating in excess of 10 percent for Osgood-Schlatter's disease of the left knee; an initial rating in excess of 10 percent for Osgood-Schlatter's disease of the right knee; an initial rating in excess in excess of 20 percent for cervical spine DDD; an initial rating in excess of 20 percent for thoracolumbar DDD, prior to March 6, 2009, and to a rating in excess with 40 percent thereafter. The claim for effective date prior to March 6, 2009, for a TDIU rating was remanded for the RO to issue an SOC addressing that matter. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Through his attorney, the Veteran appealed the March 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). After each party filed a brief (copies of both being on file), and pursuant to an April 2011 Joint Motion for Partial Remand (JMR), the Court entered an April 2001 Order dismissing the appeal except as to that part of the March 2010 Board decision which denied an initial rating in excess of 20 percent for thoracolumbar DDD, prior to March 6, 2009. Although the brief to the Court in behalf of the Veteran it was argued that there was error in remanding the claim for an earlier effective date for a TDIU rating, in the JMR it was conceded that "the Board remanded the issue of entitlement to an effective date earlier than March 6, 2009" for a TDIU rating and, so, that matter was not on appeal. As to the claim for an earlier effective date for a TDIU rating, in March 2010 the Veteran's attorney requested an Informal Hearing Conference with a Decision Review Officer (DRO). Then, following March 2010 statement of the case (SOC) addressing that issue, in a May 2010 VA Form 9, the Veteran's attorney requested a Board videoconference. A February 10, 2010, RO letter to the Veteran and his attorney notified them that a teleconference hearing was scheduled for March 17, 2011, at the Wilkes-Barre, Pennsylvania, VA office. A January 2011 deferred rating action noted that there had been a request for a DRO hearing and a Board videoconference. The Veteran and his attorney were to be contacted to determine if a DRO hearing was still desired. On file is a March 17, 2011, Informal Conference Report indicating that discussions with the Veteran's attorney included why the Board had denied an earlier effective date for a TDIU rating and had not found reason to forward the case for extraschedular TDIU consideration. This was erroneous inasmuch as the Board had not denied an earlier effective date for a TDIU rating. It was further noted that one point made was the Veteran's fibromyalgia, for which he was not service-connected, was a key factor in his inability to work prior to the worsening of his service-connected back condition which had allowed the RO to grant a TDIU rating. It was further reported that the Veteran's attorney had stated that the Veteran did not have fibromyalgia and he requested a VA examination to verify this. When it was pointed out that a claim for fibromyalgia had been filed in behalf of the Veteran, the Veteran's attorney responded stating that he had withdrawn that claim. However, the claim had not been withdrawn but had been addressed, and denied, in the March 2010 Board decision. It was further indicated that a duty to assist letter would be issued. A duty to assist letter, under the Veterans Claims Assistance Act of 2000 (VCAA) was issued in May 2001 addressing the issue of an earlier effective date for a TDIU rating. Through his attorney, the Veteran submitted additional evidence in July 2011, consisting of a June 2011 report from a registered nurse. This was received after the most recent supplemental statement of the case (SSOC) and after the case was returned by the Court. 38 C.F.R. § 20.1304(c) states that any "pertinent" evidence submitted by the Veteran which is accepted by the Board must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the Veteran. Here, in the accompanying July 2001 letter from the Veteran's attorney it was stated that "AOJ consideration of this new evidence is waived." Lastly, the request for a Board videoconference as to the claim for an earlier effective date for a TDIU rating has never been formally withdrawn and it is unclear whether the Veteran and his attorney were ever scheduled for a videoconference as requested in the VA Form 9 and if they were whether or not it was conducted. Accordingly, this matter must be clarified and if they were afforded a videoconference this must be noted and if they were not afforded a videoconference, this must be done. The issue of entitlement to an effective date prior to March 6, 2009, for a TDIU rating 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 May 25, 2005, the Veteran did not have any spinal ankylosis, vertebral fracture, or either severe or marked limitation of lumbar flexion nor active symptomatology due to thoracolumbar DDD. 2. Since May 25, 2005, the Veteran has had severe limitation of motion of the lumbar spine but no spinal ankylosis, vertebral fracture, nor active symptomatology due to thoracolumbar DDD. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for thoracolumbar DDD prior to May 25, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, Diagnostic Codes 5292 (in effect prior to September 26, 2003) and Diagnostic Codes 5242 and 5243 (effective since Sept. 26, 2003, and Sept. 23, 2002). 2. The criteria for an initial rating of no more than 40 percent from May 25, 2005, for thoracolumbar DDD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, Diagnostic Codes 5242 and 5243 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As to the claim for a higher initial rating where, as here, service connection has been granted and an initial disability rating has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) does not trigger additional 38 U.S.C.A. § 5103(a) notice. See 38 C.F.R. § 3.159(b)(3) (2010). Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating. Dingess at 19 Vet. App. 473. Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of the claim. The Veteran was afforded the opportunity to testify at a hearing in support of his claims but declined that opportunity. The RO has obtained the Veteran's service treatment records (STRs) and VA treatment records. Also, private clinical records have been obtained, as have records pertaining to the Veteran's award of Social Security Administration (SSA) disability benefits. The Veteran was afforded several VA rating examinations for the claim for increase. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998)). Chest v. Peake, No. 2007-7303, slip op (July 21, 2008 Fed. Cir.); 2008 WL 2796362 (Fed.Cir.); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Here, since the 2003 Board remand the RO has informed the Veteran of the VCAA requirement as to the increased rating claim in RO letter dated in January 2006. The RO has inquired as to the existence of other treatment sources and additional private and VA clinical records have been obtained. Indeed, two additional volumes have now been added to the record. Also, the Veteran had been afforded several VA rating examinations and the questions posed in the 2003 remand were addressed therein. Thus, the Board concludes that there has been substantial compliance with the 2003 Board remand. The Veteran's attorney was provided with a complete copy of the Veteran's claims files in January 2006. Moreover, the April 2011 JMR provided that the grounds for vacating that portion of the March 2010 Board decision addressing the claim for an initial rating in excess of 20 percent for thoracolumbar DDD, prior to March 6, 2009, was "to provide adequate statement of reasons or bases for why [the] Appellant was not entitled to a 40 percent disability rating for his thoracolumbar degenerative disc disease for the period prior to March 6, 2009." Nothing in the JMR, or the Order of the Court premised on the JMR, states or even remotely suggests that there was any failure or inadequacy as to the VCAA duty to provide notice or the VCAA duty to assist. Following the return of the case to the Board, the Veteran's attorney has submitted additional evidence in July 2011, consisting of a June 2011 report from a registered nurse. As noted above, while this was received after the most recent SSOC and the case was returned by the Court. However, in the accompanying July 2001 letter from the Veteran's attorney it was stated that "AOJ consideration of this new evidence is waived." See generally 38 C.F.R. § 20.1304(c). As there is no indication that the Veteran or his attorney were unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background The STRs are negative for injury or trauma of any kind of any spinal segment. On VA examination in July 1996 of the Veteran's knees it was noted that he had worked at the Tobyhanna Depot and had taken some sick days. In June 1998 Dr. G. J. F. reported that he had seen the Veteran on numerous occasions for pain and discomfort of the knees. He had missed time from work due to this. In a June 1998 statement the Veteran reported missing 2 or more weeks of work yearly due to his knees. In a statement received in September 1998 the Veteran reported that in August 1998 he had had to ask his employer to remove him from his present job due to pain and limitation of motion of the knees. His job had required kneeling, bending, crawling, and climbing, all of which caused knee pain. His request had been granted and he was placed in a job sitting at a bench, working on electronic equipment but his knees still caused problems due to long periods of sitting. In a February 1999 statement Dr. W. P. B., III, stated that the Veteran had progressive worsening of knee symptoms, such that he had tibial tuberosity knee pain even at rest while seated. Records of Dr. W. P. B. of 1999 and 2000 show treatment of the Veteran for multiple nonservice-connected conditions. Received on October 23, 2002, was a letter from the Veteran's attorney accompanied by a July 3, 2002, statement from Dr. G. J. F. that the Veteran was treated for a combination of Osgood- Schlatter's disease, DJD, and more recently fibromyalgia. It appeared that he also more recently, in hindsight, had been having problems with fibromyalgia. Due to his knee pain he was having more symptoms of pain in his neck and back. There was some point tenderness in the cervical trapezius area as well as the lumbar area. His symptoms included problems sitting for prolonged periods, and difficulty seating in and arising from a chair. He also had pain in the neck and back when working on his electronic equipment at home. He was unable to do any kind of exercise, e.g., on a treadmill or walking, due to knee pain. Thus, his activities at work, which included working on electronic equipment, walking at work, and sitting for prolonged periods, were things he was really unable to do. It was felt that his medical condition had worsened and required more medication, but still left him with more discomfort and decreased motion. He was not expected to have any kind of recovery and it was felt that he was unable to perform his duties. His restrictions included ambulating more than several 100 feet, sitting for prolonged periods of time, over 30 - 40 minutes, as well as squatting or lifting and reaching over his head. It was felt that the combination of his knee disabilities and fibromyalgia precluded him from any gainful employment. Private MRIs of the Veteran's thoracic spinal segment in June 2003 revealed that there was no evidence of fracture or dislocation. There were small osteophytes about the mid and lower thoracic vertebrae, at multiple levels. The pertinent impression was mild degenerative changes of the thoracic spine without evidence of significant central canal or neural foraminal stenosis. In January 2004 the Veteran was awarded SSA disability benefits. The decision of an Administrative Law Judge reflects that the Veteran had DDD and degenerative joint disease (DJD) of the cervical and thoracic spinal segments, Osgood-Schlatter's disease, and fibromyalgia with multiple trigger points verified by repeated examinations and constant debilitating pain. A vocational expert had testified that a person of the Veteran's age, educational, and vocational background with his disabilities could find no jobs available which he could perform. Records associate with the Veteran's award of SSA benefits show that Dr. G. J. F. reported in November 2002 that on disability evaluation the Veteran had worsening fibromyalgia as well as chronic knee pain due to Osgood-Schlatter's disease. He had pain in multiple areas, including the knees and back. He had some swelling of both knees but had normal strength of all extremities. There was no atrophy noted. Dating back to June 2002 he had pain in multiple areas that did not all fit in which his chronic knee pain. These symptoms had been going on long before June. Dr. E. S. reported in November 2003 that the Veteran had persistent complaints of neck pain and back pain with radiation to the upper and lower extremities, along with stiffness and diffuse myalgia and arthralgia. Also, Dr. T. F. D. reported in December 2003 that the Veteran had lumbar flexion to 60 degrees and extension to 15 degrees (motion of the lumbar spine in other planes was not reported). Neurologically, he had decreased endurance of the upper and lower extremities. He was unable to walk on his heels or his toes due to spinal and lower extremity pain. Reflexes were 1/4 and the toes of both feet were down-going. The clinical impressions included severe diffuse fibromyalgia with multiple upper and lower extremity generalized "enthesitis." [Enthesitis is inflammation of the muscular or tendinous attachment to bone. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, page 562 (27th ed.1988)]. On VA fibromyalgia examination in March 2004 it was noted that the Veteran now complained of pain "all over." He reported that significant pain all over began 7 years ago, and fibromyalgia was diagnosed 3 years ago, which was confirmed by 2 rheumatologists. He now used a cane, and sometimes two canes. He was bothered by his back, neck, and shoulders and other areas. It was noted that activity and changes in weather bothered the Veteran. He had been on SSA disability benefits for the past 2 years, having been declared totally disabled. He had difficulty performing the activities of daily living. He had not worked in 2 years. On physical examination the Veteran reported having trigger points all over his body, and that he was weak all over. He still specifically complained of pain in his knees. He walked with an antalgic gait with a cane held in his right hand. His gait was very slow and he was slow in his movements. The diagnoses were fibromyalgia, by history; cervical and thoracic DDD by history and MRI, and a tear of one meniscus of one knee by MRI. The examiner opined that the Veteran's fibromyalgia was separate and distinct from and not connected with the Veteran's Osgood- Schlatter's disease. Each could cause problems in the lower extremities. The examiner felt that at the current time the fibromyalgia symptoms were more significant, and that at the present the Osgood-Schlatter's disease did not cause significant functional limitation or limitation of motion or weakened movement, or excess fatigability or incoordination. In a May 2004 addendum to the March 2004 VA examination it was reported that the Osgood-Schlatter's disease would not prevent the Veteran from average employment. The fibromyalgia would make him available only for sedentary-type duty. The examiner noted that the Veteran's claim files had been reviewed. In May 2005 Dr. E. S. reported having treated the Veteran since February 2003. His diagnoses included Osgood- Schlatter's disease, DJD of the knees, DDD and DJD of the cervical and thoracic spinal segments, and fibromyalgia. He had chronic ongoing complaints of pain, spasm, and stiffness of the neck, back, and upper and lower extremities. He also had difficulty ambulating. This required daily medication for symptomatic relief. His chronic knee pain due to Osgood- Schlatter's disease, and DJD of the knees certainly aggravated his other comorbidities and would require further evaluation and treatment. On VA spinal examination on May 25, 2005, the Veteran's claim file was reviewed. He reported that his neck and back had bothered him for the past 8 years. He also had multiple complaints due to fibromyalgia. He had a difficult time separating the pain that he might have in his neck and back from fibromyalgia and from other causes. His neck pain was at the base of the neck and was present all of the time, especially on turning his head to the left or right, and on flexion. He had pain in the upper and lower back. Each of the pains was described as aching and present constantly but could be exacerbated by movements. For this pain he had not had surgery or epidural steroidal injections. There were no true flare-ups, although he reported that his neck and back pain were each somewhat worse in cold and damp weather, and each was relieved somewhat by rest. There were no associated bowel or bladder complaints which he believed were secondary to his back. He used a cane and reported that he used it because of his knees. However, he reported that using the cane bothered his neck and back. He leaned to one side and walked irregularly. Walking bothered both his neck and his back. He reported that an MRI of his neck and back had revealed arthritis and pinched nerves. He reported that as to his activities of daily living, he did some shopping, cooking, and other light tasks. He did not do anything strenuous. On physical examination of the Veteran's thoracolumbar spine, his gait was slow. He could walk with and without a cane. He could stand on his toes and stand on his heels, but reported that ankle and foot pain bothered him enough that he could not really walk on his heels or on his toes. There was tenderness from the upper lumbar spine to the lower lumbar spine, and over each sacroiliac joint. There was less tenderness over the paraspinal musculature. There was bilateral symmetry. There was some loss of normal lumbar lordosis. Straight leg raising was negative at 90 degrees, bilaterally. Knee jerks were 1+/1+. Ankle jerks were 0/0. Thoracolumbar flexion was to 38 degrees and on repetition it was to 39 degrees. Extension was to 18 degrees and on repetition it was to 21 degrees. Lateral flexion to the left was to 16 degrees and it was to 20 degrees to the right. Rotation in each direction was to 20 degrees. There was no sensory deficit to light touch in the lower extremities. X-rays revealed extensive multi-level mild DDD of the thoracic spine; and multi-level mild lumbar DDD. The impressions were multi-level DDD of the cervical, thoracic, and lumbar spinal segments. It was again noted that there were no true flare-ups and that several motions were repeated without change, so, there was no clinical evidence of reduced range of motion or function with repetition. It was not as likely as not that the Veteran's spinal DDD had been cause by Osgood-Schlatter's disease but it was at least as likely as not that the spinal DDD was aggravated by his gait which was abnormal, and at least in part because of the Osgood-Schlatter's disease. In a July 2005 addendum it was stated (in response to the question of the degree of aggravation of the spinal DDD) that the majority of the Veteran's limitation of motion of the cervical and lumbar spine was due to nonservice-connected DDD and nonservice-connected fibromyalgia, based on the fact that the Osgood-Schlatter's disease was bilateral, without X-ray abnormality, and generally did not have a significant effect on gait at the Veteran's age. It was not believed to be medically possible to provide a numerical value to the additional limitation of motion cause by the exacerbation by gait abnormality due to Osgood-Schlatter's disease or to provide a numerical value for the range of motion of the cervical and lumbar spine without aggravation by the Veteran's altered gait from the Osgood-Schlatter's disease. This was based in part on the fact that the Veteran did walk every day and his altered gait, as an entity, existed and could not be separated from the condition his back and neck would be in without the altered gait. It was again stated that the majority of the Veteran's cervical and lumbar limitation of motion was secondary to his nonservice-connected fibromyalgia and his [then] nonservice-connected DDD. On VA examination of the Veteran's knees in October 2006 the Veteran's claim file was reviewed. It was noted that the Veteran had developed fibromyalgia and that with time his knees had become more painful and weak. His course was one of progressive worsening. He took non-steroidal anti- inflammatory medication and took Mobic twice daily. He had not been hospitalized or had surgery. He used one cane for walking, frequently but intermittently. On physical examination there was no evidence of abnormal weight-bearing. On VA spinal examination on November 14, 2006, the Veteran's claim files were reviewed. He took Mobic for his cervical and lumbar spine conditions, with a good response. He had not been hospitalized or had surgery. It was reported that he had a history of urinary incontinence but the wearing of absorbent material was not required. He had urinary frequency of less than 1 hour and had nocturia, voiding once per night. There was no fecal incontinence, constipation, erectile dysfunction or paresthesias. It was reported that he had leg or foot weakness and he had had unsteadiness and falls. The etiology of these symptoms was not unrelated to his claimed spinal disability. He had a history of fatigue, decreased motion, stiffness, weakness, spasm, and pain. These symptoms occurred throughout his spine. His pain was an aching and burning pain which was moderate but constant. He complained of severe flare-ups occurring 1 to 2 days a week and precipitating factors were cold and damp weather, as well as strenuous movements. Alleviating factors were rest, warmth, and medication. With respect to intervertebral disc syndrome (IVDS), in response to being asked to list each incapacitating episode in the past 12 months and the number of days of duration of each episode, the response as to the cervical spine was 14 days and as to the thoracolumbar spine the response was 140 days. He used a cane to walk and was unable to walk more than a few yards. On physical examination there was no spasm of the cervical or thoracolumbar spine or any atrophy or weakness of the musculature. There was guarding and tenderness, as well as painful motion. The tenderness or guarding was reported to be severe enough to be responsible for abnormal gait or abnormal spinal contour. His spinal posture was normal and his head position was normal. His spine was symmetric in appearance. His gait was antalgic and he had poor propulsion. There was no abnormal spinal curvature. Testing of strength in the upper and lower extremities was normal. Muscle tone was normal in the extremities and there was no muscle atrophy. In the lower extremities, there was decreased sensation to pin prick and to light touch in each lower extremity. It was noted that he had diffuse areas of an inability to distinguish sharp and dullness. Reflexes were normal in the upper and lower extremities. He had normal rectal tone and reflexes. There was no spinal ankylosis. He was able to get dressed and tie his shoes with minimal to no problems. On flexion of the thoracolumbar spine, active range of motion was from 0 degrees to 71 degrees; passive motion was from 0 degrees to 75 degrees, with pain beginning at 40 degrees and ending at 45 degrees. Resisted isometric movement was normal. There was pain on both active and passive motion as well as after repetitive use. There was additional loss of motion on repetitive use of 0 to 40 degrees and the factor most responsible was pain. On extension of the thoracolumbar spine, active range of motion was from 0 degrees to 0 degrees; passive motion was from 0 degrees to 2 degrees, with pain beginning at 2 degrees and ending at 0 degrees. Resisted isometric movement was normal. There was pain on both active and passive motion as well as after repetitive use. There was no additional loss of motion on repetitive use. On right lateral flexion of the thoracolumbar spine, active range of motion was from 0 degrees to 20 degrees, with pain beginning at 20 degrees and ending at 15 degrees; passive motion was from 0 degrees to 20 degrees. Resisted isometric movement was normal. There was pain on both active and passive motion as well as after repetitive use. There was no additional loss of motion on repetitive use. There was additional loss of motion on repetitive use of 0 to 15 degrees and the factor most responsible was pain. On left lateral flexion of the thoracolumbar spine, active range of motion was from 0 degrees to 5 degrees with pain beginning at 5 degrees and ending at 0 degrees; passive motion was from 0 degrees to 5 degrees. Resisted isometric movement was normal. There was pain on both active and passive motion as well as after repetitive use. There was no additional loss of motion on repetitive use. On right lateral rotation of the thoracolumbar spine, active range of motion was from 0 degrees to 12 degrees with pain beginning at 12 degrees and ending at 9 degrees; passive motion was from 0 degrees to 12 degrees. Resisted isometric movement was normal. There was pain on both active and passive motion as well as after repetitive use. There was additional loss of motion on repetitive use of 0 to 6 degrees and the factor most responsible was pain. On left lateral rotation of the thoracolumbar spine, active range of motion was from 0 degrees to 5 degrees; passive motion was from 0 degrees to 5 degrees, with pain beginning at 5 degrees and ending at 0 degrees. Resisted isometric movement was normal. There was pain on both active and passive motion as well as after repetitive use. There was no additional loss of motion on repetitive use. It was noted that although range of motion was reduced, the reduction did not represent normal for this Veteran. Also, Lasegue's sign was positive, bilaterally. There was no testing for non-organic physical signs. Lumbar X-rays revealed mild degenerative changes and thoracolumbar X-rays revealed mild degenerative changes with mild levo-rotoscoliosis. An August 2003 MRI showed mild degenerative changes of the thoracic spine. The pertinent diagnosis was thoracolumbar degenerative changes and muscle spasm. In a November 4, 2006, statement Dr. C. N. B. reported that he had reviewed the Veteran's records and had examined the Veteran. The Veteran had marked limitation of motion due to pain in several joints. On examination he had normal sensation. He had a slow, antalgic gait and needed a cane due to instability. He had visible spasms in the right thigh adductor muscle group. He had 4+/5 strength in the lower extremity muscle groups. Knee reflexes were absent but ankle reflexes were 1+. He had a patchy loss of sensation to pin prick in the lower extremities, and hair loss in the distal 1/3 of both lower extremities. Straight leg raising was positive, bilaterally. He needed to use his arms to arise from a chair due to leg weakness. Lumbar spine flexion was to 30 degrees, extension was to 10 degrees, right and left lateral flexion were each to 15 degrees, and right and left rotation were each to 10 degrees. Dr. C. N. B. reported his current examination of the Veteran was consistent with examinations done by other physicians in May 2005 and 2003. A lumbar MRI was recommended because it was felt that the Veteran likely had IVDS which would account for his loss of lower extremity reflexes, antalgic gait, and need for a cane to ambulate. A higher rating was warranted for the lumbar spine disorder due to loss of reflexes, pain, weakness, and abnormal gait. He should also have a higher rating for his knees because of bilateral crepitus, clicking, need for a cane, and pain. It was felt that the Veteran did not have fibromyalgia, as Dr. C. N. B. did not find any trigger points and the Veteran's spine imaging explained many of his current symptoms. It was clear that the Veteran had a serious problem with his spine and knees and had been unable to work since 2002. He had been assigned SSA disability benefits and federal retirement disability due to his medical problems. It was opined that due to the constellation of his physical problems and his pain syndrome that he was not able to be gainfully employed because he could not sit, stand, lift, stoop, bend or ride in a car for any extended periods of time. He needed daily prescription strength pain medications. A June 2007 lumbar MRI revealed the Veteran's vertebral bodies had a normal height and morphology. There was no evidence of compression fracture or marrow infiltrative process. Degenerative changes were seen along the anterior end-plates of L2 and L3 vertebral bodies. No significant dislocation was seen. The pre- and paravertebral soft tissues were unremarkable. While the levels from L1-2 through L4-5 were normal, the L5-S1 level had a broad-based central disc herniation with mild impingement upon the neural foramina, bilaterally. There was mild facet arthropathy. The impression was disc herniation at L5-S1. Records from the Office of Personnel Management received in June 2008 include VA form 21-4192, Employment Information, which reflects that the Veteran was employed as an electronics mechanic with the Tobyhanna Army Depot from April 1987 until he retired due to disability in October 2002. The amount of time that he had lost from work in the preceding 12 months due to disability was unknown. On VA examination on March 6, 2009, of the Veteran's knees, the Veteran complained of continuous bilateral knee pain, which varied from moderate to severe, and was somewhat worse in the right knee. He complained of stiffness and also complained of giving way at times which was the reason he gave, in part, for using a cane. He reported he could not walk long distances. The Veteran reported that he had been diagnosed as being "close to rheumatoid arthritis." Fibromyalgia had been diagnosed in the past. He did not work and reported that if he did not have problems other than with his knees, he would not be able to work. He was able to leave his house on some days and on good days he was able to go grocery shopping. He was able to drive a car at times. He walked with an antalgic gait, even when using a cane. On VA examination on March 6, 2009, of the Veteran's spine the examiner was specifically requested to address whether the Veteran had incapacitating episodes of IVDS. The Veteran reported that his hurt his neck and back during basic training and that his neck and back had bothered him since that time. The pain was worse in bad weather and with activity but there was improvement with medications. He reported using a cane in part because of his neck. At times he used two canes. He did not use a brace. He had not had spinal surgery. He had not had any additional neck injuries. He had been diagnosed in the past as having fibromyalgia. He stated that he did not work primarily because of his neck disability. He limited his activities because of his neck. He did not hunt in part because of his neck and in part because of his back. He lived with his father but, in part, because of his neck and back, his father did the grocery shopping. His father did most of the household tasks and usually did the driving. The Veteran also related having low back pain and numbness which radiated down both lower extremities. He stated he could only walk 50 feet before he normally would have to sit down. He reported that his low back pain also began during basic training. He now took Percocet, Neurontin, Cymbalta, and some non-steroidal anti-inflammatory medicine for his neck, back, and both knees. He had not had physical therapy. He reported that he did not work, in part, because of his low back. As to incapacitating episodes, the Veteran reported that he was not able to work in part because of his neck and back. Approximately 3 times weekly he had neck and back pain lasting 24 hours when the pain hurt more than the other 4 days of the week. In the past several years, there had been no incapacitating episode, as defined by being unable to get out of bed. He walked with a cane in his right hand, limiting his weight bearing on the right side. On physical examination testing of thoracolumbar spine motion was done on repeated occasions in each plane. Flexion was to 38, 26, and 22 degrees. After a short break, repeated flexion testing was to 30 and again to 22 degrees. Extension was to 20, 20, 20, and 12 degrees. Lateral flexion to the left was to 14, 16, and 12 degrees. Lateral flexion of what was reported to be "of the cervical" was apparently actual testing of right lateral flexion, and was to 16, 12, and 12 degrees. Rotation to the left was to 30 degrees, and the Veteran reported having spasm. Repeated rotation to the left was to 30 and again 30 degrees. Rotation to the right was to 30 degrees on each of three tests. Knee and ankle reflexes were 2+, bilaterally. Proximal strength, as defined by hip flexion in a sitting position, was symmetrically weak. He was able to take a step or two on his heels and on his toes, but he did so with difficulty. Thoracic spine X-rays of October 2006 had revealed mild degenerative changes with minimal levo- rotoscoliosis of the upper thoracic spine. Lumbar X-rays of October 2006 had revealed some mild degenerative changes. Reports of MRIs of March 2009 of the Veteran's cervical, thoracic, and lumbar spine were reviewed. These disclosed, as to the thoracic spine, multi-level thoracic DDD without evidence for disc herniation or significant disc bulging. As to the lumbar spine, there was multi-level lumbar DDD with severe end-plate reactive changes at L2-3, without evidence of disc herniation at that level. There was a small posterior mid- line disc herniation at L5-S1. The pertinent diagnoses were thoracolumbar DDD, degenerative arthritis, and small disc herniation at L5-S1, by report. The examiner noted that the Veteran could not work, in part, because of his neck and back and that in that sense he was always in an incapacitated form. However, incapacitation such that he was not able to leave the bed or be hospitalized had not and did not occur. It was also noted that there was no significant change in motion of the cervical and thoracolumbar spinal segments during the sequential measurements. Because the Veteran reported having pain all of the time there was, in a sense, no truly painless range of motion. On the range of motion testing the Veteran had stopped motion during each test because of increased pain. In a June 2011 statement sent to the Veteran's attorney, A. C., a registered nurse, reported that she had reviewed the Veteran's claims folder. A May 25, 2005 VA examination had found motion of the thoracolumbar spine was: forward flexion to 0 - 38 degrees, repeated 0 - 39 degrees; extension 0 - 18 degrees, repeated 0 - 21 degrees; left lateral flexion 0 - 16 degrees; right lateral flexion 0- 20 degrees; left lateral rotation 0 - 20 degrees; and right lateral rotation 0 - 20 degrees. A thoracic spine X-ray revealed extensive multi-level mild DDD and a lumbar X-ray revealed multi-level mild DDD. The pertinent diagnosis was DDD of the thoracic and lumbar spine. It was reported that a November 1, 2006, independent examination by Dr. C. N. B had found lumbar forward flexion of 30 degrees; extension of 10 degrees, lateral flexion of 15 degrees to the right and to the left; and rotation to 10 degrees to the right and to the left. Dr. C. N. B. had reported that the Veteran's symptoms included loss of reflexes, pain, weakness, abnormal gait, and limited range of motion of the lumbar spine. A lumbar MRI was recommended because it was felt that he likely had intervertebral disc disease, which would account for his loss of lower extremity reflexes, antalgic gait, and need for a cane to ambulate. It was further stated that a November 14, 2006, VA examination had reported that the Veteran had an antalgic gait and poor propulsion. Thoracolumbar motion was flexion of 0 - 75 degrees, with pain beginning at 40 degrees and after repetitive movement, with additional loss of motion on repetitive use with motion being 0 - 40 degrees. Thoracolumbar extension was 0 - 2 degrees, with pain beginning at 2 degrees and after repetitive movement. Left lateral flexion of 0 - 5 degrees, with pain beginning at 5 degrees and after repetitive movement. Right lateral flexion of 0 - 20 degrees, with pain beginning at 20 degrees and after repetitive movement; and there was additional loss of motion on repetitive use being 0 - 15 degrees. Left lateral rotation of 0 - 5 degrees, with pain beginning at 5 degrees and after repetitive use of the joint. Right lateral rotation of 0 - 12 degrees, with pain beginning at 12 degrees and after repetitive use; and there was additional loss of motion on repetitive use, being 0 - 6 degrees. The diagnosis had been degenerative changes, muscle spasms, and foraminal stenosis. It was additionally reported that a March 6, 2009, VA examination had reported that the Veteran had had 14 days of incapacitation during the last 12 months. The examiner had reported that the Veteran had DDD, degenerative arthritis, disc herniation at C5-6 and L5-S1; and had further stated that the Veteran had "in a sense no truly painless range of motion." It was noted that at that time thoracolumbar flexion was 0 - 38 degrees; extension 0- 20 degrees; left lateral flexion 0 - 16 degrees; left rotation 0 - 30 degrees with spasm; and right rotation 0 - 30 degrees. The registered nurse stated that the Veteran's range of motion had remained fairly consistent since his May 2005 VA examination, up to his March 2009 VA examination. Although his thoracolumbar flexion motion on the November 14, 2006, VA examination was reported as 0 - 75 degrees, his pain began at 40 degrees and included additional loss of motion on repetitive use at 0 - 40 degrees. His "reported pain started at near points as previous ROM examinations." It was worth noting the drastic difference in the Veteran's thoracolumbar flexion from November 1, 2006 (of 30 degrees) and the November 14, 2006 examination (of 75 degrees). He had reported pain at 40 degrees, which more closely resembled all other spine examinations. There was no evidence within the record suggesting he was ever able to tolerate motion in flexion of 75 degrees. Pain limited his motion, and there was no evidence the examiner accounted for this when determining his ranges of flexion. Importantly, the examiner found that repetitive motion also produced pain. It was concluded that the Veteran had had several spinal examinations, resulting in similar clinical presentations, to include minimal variations of his range of motion. His condition at the time of his increased spine rating from 20 percent to 40 percent, effective March 6, 2009, was very similar to his clinical presentation during his May 25, 2006, spinal examination. His thoracolumbar flexion was measured as 0 - 38 degrees during both the May 2005 VA examination and the March 2009 VA examination. Therefore, it was opined that the Veteran's cervical and thoracolumbar spine conditions met the 40 percent schedular rating as early as May 2005. General Rating Principles Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. A higher rating is assigned if it more nearly approximates such rating. 38 C.F.R. §§ 4.7, 4.21. Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings). An unlisted condition may be rated under a closely related disease or injury by the use of a "built-up" DC under 38 C.F.R. § 4.27, with consideration given to relevant medical history, current diagnosis, symptomatology, functions affected and anatomical localization. 38 C.F.R. § 4.20. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The assignment of a particular diagnostic code is "dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Ratings for a joint based on limitation of motion require consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. In other words, ratings based on limited motion do not ipso facto include or subsume the other rating factors in §§ 4.40 and 4.45, e.g., pain, functional loss, fatigability, and weakness. Thus, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is factor to be considered. Painful motion of a joint with peri-articular pathology is to be at rated at least at the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Spinal Rating Criteria The criteria for evaluating IVDS, also called disc disease, were revised effective September 23, 2002, and renumbered under 38 C.F.R. § 4.71a, DC 5293 as DC 5243. The criteria for evaluating spinal disabilities, other than IVDS, under 38 C.F.R. § 4.71a, Diagnostic Codes 5285 through 5295 ("the old criteria") were revised effective September 26, 2003, at which time the diagnostic codes were renumbered. Generally, where the law or regulation change after a claim has been filed or reopened but before a final decision, the most favorable version most will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, the revised law or regulation will not be applied prior to the stated effective date. VAOGCPREC 3-2000 (Apr. 10, 2000). Because the initial claim for service connection was received on October 23, 2002, after the September 23, 2002, change in the IVDS rating criteria, only the new IVDS criteria may be applied. Because the claim was received prior to the change in the spinal rating criteria, other than IVDS, both the old and the new spinal criteria for disabilities other than IVDS must be applied, although in rating such disorders prior to the September 2003 rating change, only the old spinal rating criteria may be applied. Under the new Diagnostic Code 5243, IVDS or disc disease, is rated either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations, whichever method results in the higher rating. If there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is warranted. If there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is warranted. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted. The revised IVDS rating criteria do not provide for an evaluation in excess of 60 percent on the basis of the total duration of incapacitating episodes. Note 1 to the revised Diagnostic Code 5293 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 67 Fed. Reg. 54345, 54347 (August 22, 2002). Under both the old and the new IVDS criteria, separate evaluation of the orthopedic and neurologic components of a spinal disability, for combination under 38 C.F.R. § 4.25, was permissible. See Bierman v. Brown, 6 Vet. App. 125 (1994). However, assigning separate ratings for combination may not be permitted to result in pyramiding under 38 C.F.R. § 4.14 - which prohibits "[t]he evaluation of the same disability under various diagnoses". See Brady v. Brown, 4 Vet. App. 203, 206 (1993). See, too, Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is if symptoms of one condition are duplicative of or overlapping of another). Thus, a rating for IVDS may not be assigned while at the same time assigning separate ratings for the orthopedic and the neurologic components of IVDS. Under 38 C.F.R. § 4.20, in rating peripheral neuropathy attention is given to sensory or motor impairment as well as trophic changes (described at 38 C.F.R. § 4.104, Diagnostic Code 7115"). Peripheral neuropathy which is wholly sensory is mild or, at most, moderate. With dull and intermittent pain in a typical nerve distribution, it is at most moderate. With no organic changes it is moderate or, if of the sciatic nerve, moderately severe. With loss of reflexes, muscle atrophy, sensory disturbance, and constant pain that at times is excruciating, it is at most severe. Peripheral nerves ratings are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. §§ 4.123, 4.124, 4.124a. 'Sciatic' refers to the sciatic nerve; sciatica is used to refer to 'a syndrome characterized by pain radiating from the back into the buttock and into the lower extremity along its posterior or lateral aspect, and most commonly caused by prolapse of the intervertebral disk' the term is also used to refer to pain anywhere along the course of the sciatic nerve'." Ferraro v. Derwinski, 1 Vet. App. 326, 329-30 (1991). Sciatic neurological manifestations are rated under Diagnostic Code 8520 as paralysis of the sciatic nerve. The criterion for a 10 percent rating is mild incomplete paralysis. The criterion for a 20 percent is moderate incomplete paralysis and 40 percent when moderately severe. When severe with marked muscular atrophy, 60 percent is warranted and 80 percent is warranted for complete paralysis (with foot drop, no active movement possible below the knee, and weakened or, very rarely, lost knee flexion). See also 38 C.F.R. § 4.124a, Diagnostic Codes 8620, 8720 (for sciatic neuritis and neuralgia). Note that the maximum for complete neuropathy of lower extremity peripheral nerves other than the sciatic nerve (Diagnostic Codes 8520 through 8530) is no more than 40 percent and only when there is motor impairment. Old Spinal Rating Criteria Other Than IVDS Under 38 C.F.R. § 4.71a, Diagnostic Code 5285 residuals of a vertebral fracture without spinal cord involvement and without abnormal mobility requiring a neck brace (jury mast), is rated based on definite limitation of motion or muscle spasm, adding 10 percent for demonstrable vertebral body deformity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5286 complete bony fixation of the entire spine (ankylosis) in a favorable angle warrants a 60 percent rating. If in an unfavorable angle, with marked deformity and involvement of major joints or without other joint involvement, a 100 percent rating is warranted. Under Diagnostic Code 5288 a 20 percent rating is warranted for favorable and a 30 percent rating for unfavorable ankylosis of the dorsal spine. Under Diagnostic Code 5289 a 40 percent rating is warranted for favorable and 50 percent for unfavorable ankylosis of the lumbar spine. Under Diagnostic Code 5291 a 10 percent rating is the highest rating for limited dorsal (thoracic) spine motion and must be either moderate or severe. Under Diagnostic Code 5292 limited lumbar motion warrants a 20 percent rating when moderate and 30 percent when severe. Under Diagnostic Code 5294 a sacro-iliac injury or weakness was rated under Diagnostic Code 5295 as a lumbosacral strain. Under Diagnostic Code 5295 a lumbosacral strain with muscle spasm on extreme forward bending with loss of lateral spine motion, a 20 percent rating is warranted. When severe with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, a maximum 40 percent rating is warranted. New Spinal Rating Criteria The old spinal rating criteria focused on subjective factors such as the degree of ankylosis or limitation of motion (old Diagnostic Code 5286 through 5289 and 5290 through 5292), except that other factors were taken into consideration for residuals of a vertebral fracture (formerly Diagnostic Code 5285) and sacro-iliac injury and weakness and lumbosacral strains (formerly Diagnostic Codes 5294 and 5295). The Diagnostic Codes for rating spinal disorders were also renumbered, including renumbering the Diagnostic Code for limited cervical motion, Diagnostic Code 5290, as Diagnostic Code 5237 (lumbosacral or cervical strain) and Diagnostic Code 5242 (degenerative arthritis of the spine); renumbering the Diagnostic Code 5292 for limited lumbar motion, as Diagnostic Code 5237 (lumbosacral or cervical strain) and Diagnostic Code 5242 (degenerative arthritis of the spine). The new spinal rating criteria created a General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) which by encompassing symptoms such as pain (radiating or not), stiffness, and aching takes those into account, removing any requirement that there be such symptoms for any particular rating. 68 Fed. Reg. at 51454 - 51455 (August 27, 2003). The thoracolumbar and cervical spinal segments are rated separately except when there is unfavorable ankylosis of both spinal segments, i.e., the entire spine, which is rated as a single disability. Note 6 to the General Rating Formula. The General Rating Formula provides ratings based on limited spinal motion in either forward flexion or the combined ranges of motion of a spinal segment, or for either favorable or unfavorable ankylosis, or with respect to the entire spine a loss of more than 50 percent vertebral body height due to vertebral fracture or muscle spasm and guarding. Note 2 to the General Rating Formula sets forth maximum ranges of motion of the spinal segments, which under Note 4 are measured to the nearest five (5) degrees, although a lesser degree of motion may be considered normal under the circumstances set forth in Note 3. Note 2 to the General Rating Formula provides that 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 sum of these is the combined range of motion, which for the thoracolumbar spine is 240 degrees. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 5 of the General Rating Formula. A 20 percent rating is warranted for limited thoracolumbar motion when forward flexion is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion is not greater than 120 degrees (the maximum combined range of motion being 240 degrees); or if there is either (1) muscle spasm or (2) guarding severe enough to result in abnormal gait or abnormal spinal contour, e.g., scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for limited thoracolumbar motion when forward flexion is to 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Initial 20 percent rating for Thoracolumar DDD Prior to March 6, 2009 At no time has the Veteran been shown to have bony fixation or ankylosis of the thoracic or lumbar segments, or both, of the spine and it beyond dispute that he has never had complete ankylosis of the entire spine. The 20 percent rating in effect is higher than the maximum 10 percent rating for limited motion of the dorsal (thoracic) spine, Diagnostic Code 5291, under the old spinal rating criteria and to warrant a rating higher than 20 percent under the old criteria for limited lumbar motion, Diagnostic Code 5292, the Veteran must have severe limitation of motion or a severe lumbosacral strain under old Diagnostic Code 5294. The Board agrees with the recent analysis set forth in the June 2011 report of a registered nurse. While flexion was limited to only 75 degrees passively, and 71 degrees actively at the time of the November 2006 VA examination, pain began at 40 degrees. This is consistent with flexion being limited to only 38 degrees on VA examination on May 25, 2005, as well as the November 1, 2006, report by Dr. C. N. B. of flexion being limited to 30 percent. Thus, the Veteran met the criteria for severe limitation of lumbar flexion as of the May 25, 2005, VA rating examination. However, prior to that time severe limitation of lumbar flexion was not shown. Rather, on testing of lumbar motion in December 2003, the Veteran had flexion to 60 degrees, which is approximately two-thirds of the normal range of motion of lumbar flexion and would establish no more than moderate limitation of flexion which warrants only a 20 percent disability rating. Likewise, he did not have listing of the spine, marked limitation of flexion, and there was no evidence of abnormality mobility on forced motion, as required for a 40 percent rating for a severe lumbosacral strain. Dr. C. N. B. reported in 2006 that the Veteran had spasms in the right thigh, patchy loss of pin prick sensation in the lower extremity, diminished ankle reflexes and loss of knee reflexes and, moreover, that IVDS would account for this and the Veteran's antalgic gait. Dr. C. N. B. implicitedly attributed the Veteran's finding to IVDS because, according to Dr. C. N. B., the Veteran did not have fibromyalgia. However, as the Board found in the March 2010 decision denying service connection for fibromyalgia, the rest of the evidence on file, including multiple histories related by the Veteran, establishes that he has had fibromyalgia since 1996 or 1997. Thus, this opinion of Dr. C.N.B. is lacking in probative value. The evidence shows that even as early as December 2003 the Veteran's decreased endurance in the upper and the lower extremities as well as decreased reflexes were due to enthesitis resulting from the nonservice-connected fibromyalgia. While there is evidence suggesting a worsening of the nonservice-connected fibromyalgia, leading ultimately to the Veteran's having to cease employment, by the time of the May 25, 2005, VA spinal examination he continued to have decreased reflexes but he had no diminution of lower extremity sensory function. Subsequently, the October 2006 VA examination of his knees noted greater pain and weakness, leading to unsteadiness and falls, which was unrelated to his spinal disability. Similarly, the clinical notations of diminution of sensation at the time of the November 2006 examinations, by Dr. C. N. B. and by VA, were that the decreases were "patchy" and diffuse. Stated in other terms, the clinical evidence reflects no findings on physical examinations that there were any neurological symptoms which occurred in an anatomical distribution as would be expected if the Veteran had active radicular symptomatology due to IVDS. In fact, there is no diagnosis of record of either sciatic neuritis or radiculopathy. Also, the report of the 2006 VA examination might suggest that there are some urinary symptoms from the service-connected thoracolumbar pathology, he specifically denied having bowel or bladder symptoms stemming therefrom at the March 2005 VA examination. From this, the Board must conclude that a 40 percent rating is warranted for severe limitation of motion of the service-connected thoracolumbar DDD from the time of the May 25, 2005, VA examination until March 6, 2009. However, at no time prior to March 6, 2009, did the Veteran had active symptomatology attributable to this thoracolumbar DDD. In other words, a separate compensable rating for neurologic impairment from thoracolumbar DDD was not warranted. In this regard, while the Veteran once reported being impaired for over 100 days in response to a query about incapacitating episodes, there is no evidence of bed rest having been prescribed and treatment by a physician for IVDS. Accordingly, evaluation under the new IVDS rating criteria is not warranted and any time during this appeal period. Likewise, at no time prior to March 6, 2009, did the Veteran have residuals of a vertebral fracture, or ankylosis of the dorsal (thoracic) or lumbar spinal segments, favorable or unfavorable, and he has never had ankylosis of the entire spine. Moreover, a rating in excess of 40 percent is not assignable under the old spinal rating criteria for a lumbosacral strain or for limited spinal motion of the thoracic or the lumbar spinal segment. Accordingly, a rating in excess of 20 percent from October 23, 2003, to May 24, 2005, is not warranted but a rating of no more than 40 percent thoracolumbar DDD is warranted from May 25, 2005, until March 6, 2009. For the above reasons, considering 38 C.F.R. §§ 4.40, 4.45, and 4.59, the preponderance of the evidence is against a rating in excess of 20 percent for thoracolumbar DDD prior to May 25, 2005, and in favor of a rating of no more than 40 percent from May 25, 2005, until March 6, 2009. Extraschedular Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). If the criteria reasonably describe a veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun, Id. Comparing the Veteran's current disability levels and symptomatologies to the Rating Schedule, the degree of disability for each disorder is contemplated by the Rating Schedule and the assigned schedule ratings are adequate. Specifically, a wide rating of signs and symptoms are contemplated in the applicable rating criteria, including pain, loss of motion, painful motion, muscle spasm, ankle jerks, and other neurological findings as to strength and sensory function. In fact, 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as sciatic neuritis, unstable or malaligned joints, and crepitation. Even if this were not the case, the disorder by itself, has not caused marked interference with his employment, i.e., beyond that contemplated by his assigned rating, or otherwise rendered impractical the application of the regular schedular standards. Here, it was only after he developed the progressive onset of nonservice-connected fibromyalgia that his employment was terminated. It is his fibromyalgia which is by far the most disabling component of his overall disability picture. Admittedly, his overall functional impairment due to his service-connected thoracolumbar DDD would hamper his performance in some respects, but certainly not to the level that would require extra-schedular consideration since those provisions are reserved for very special cases of impairment that simply is not shown here. Thus, no referral for extraschedular consideration is required. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial rating in excess of 20 percent for thoracolumbar DDD, prior to May 25, 2005, is denied. An initial rating of no more than 40 percent for thoracolumbar DDD from May 25, 2005, is granted subject to applicable law and regulations governing the award of monetary benefits. REMAND It is unclear whether the Veteran and his attorney were ever scheduled for a videoconference as requested in the VA Form 9, and if they were whether or not it was conducted. Accordingly, this matter must be clarified and if they were afforded a videoconference this must be noted and a transcript thereof should be associated with the claim files. If they were not afforded a videoconference, this must be done. Also, in light of the partial grant of an increased rating by this decision, the claim for an effective date prior to March 6, 2009, for a TDIU rating should be readjudicated. Accordingly, the case is REMANDED for the following action: 1. It must be clarified whether or not a videoconference was conducted addressing the issue of an earlier effective date for a TDIU rating. If the and his attorney were afforded a videoconference this must be noted and a transcript thereof must be associate with the claim files. If they were not afforded a videoconference, this must be done. 2. Readjudicate the claim for an effective date prior to March 6, 2009, for a TDIU rating should be readjudicated. 3. Thereafter, if the claim for an effective date for a TDIU rating remains denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and they should be afforded the appropriate period of time within which to respond thereto. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs