Citation Nr: 1216111 Decision Date: 05/04/12 Archive Date: 05/10/12 DOCKET NO. 09-46 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for residuals of L5 lumbar fracture with retrolisthesis, L4 and L5, prior to March 10, 2009. 2. Entitlement to an initial rating higher than 20 percent for residuals of L5 lumbar fracture with retrolisthesis, L4 and L5, from March 10, 2009. 3. Entitlement to service connection for nerve damage, to include as secondary to residuals of L5 lumbar fracture with retrolisthesis, L4 and L5. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served an active duty from November 2003 to July 2007. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In that decision, the RO granted entitlement to service connection for residuals, L5 lumbar fracture with retrolisthesis L4 and L5. The RO also denied entitlement to service connection for nerve damage. The Veteran timely appealed the assigned rating and the denial of service connection. In July 2010, the Veteran testified before the undersigned at a Board video conference hearing. A transcript of the hearing is of record. The issue of entitlement to service connection for nerve damage, to include as secondary to L5 lumbar fracture with retrolisthesis, L4 and L5, is being remanded and 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 March 10, 2009, the symptoms of the Veteran's residuals of L5 fracture with retrolisthesis, L4 and L5, did not approximate forward flexion of the thoracolumbar spine between 30 and 60 degrees, combined range of motion of the thoracolumbar spine 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour. 2. From March 10, 2009, the symptoms of the Veteran's residuals of L5 fracture with retrolisthesis, L4 and L5, cause some limitation of motion and pain, but do not approximate forward flexion of the thoracolumbar spine to 30 degrees or less, and do not cause ankylosis, favorable or unfavorable, of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to March 10, 2009, the criteria for a rating higher than 10 percent for residuals of L5 fracture with retrolisthesis, L4 and L5, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2011). 2. From March 10, 2009, the criteria for a rating higher than 20 percent for residuals of L5 fracture with retrolisthesis, L4 and L5, have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2011)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Court's decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present appeal, since the appellate issue (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a VCAA letter was duly sent in September 2007), another VCAA notice is not required. VAOPGCPREC 8-2003. The Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 472 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, supra. With respect to the claims presently on appeal, the Board finds that the appellant is not prejudiced by a decision at this time since the claim is being denied. Therefore, any notice defect, to include disability rating and effective date, is harmless error since no disability rating or effective date will be assigned. Moreover, the Veteran was informed of the degree of disability and effective date elements in the September 2007 letter noted above. The Board finds that all necessary assistance has been provided to the appellant and the RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claim for a higher rating for his left hip disability. VA has obtained identified medical evidence and afforded the appellant VA examinations. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In regard to the issues presently being decided, the Board finds that all of the VA examination reports on file contain sufficient findings with which to properly evaluate the appellant's service-connected lumbar spine disability and are thus deemed adequate for rating purposes. All of the examination reports are predicated on a physical examination and contain the findings necessary to evaluate the appellant's low back disability under the applicable rating criteria, including consideration of the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (examination adequate when based on consideration of the Veteran's prior medical history and describes the disability in sufficient detail to allow the Board to make a fully informed evaluation). Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim on appeal presently being decided and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Facts Service treatment records show that the Veteran was seen for low back pain in March 2005 and was assessed as having a small compression fracture, L5. He described the pain as a nonradiating, sharp, intermittent type of pain. A follow up record in May 2005 shows that the Veteran was doing well and wanted to restart physical training with his unit. He was assessed as having status post lumbosacral compression fracture and was given a referral to physical therapy for range of motion and back strengthening. He was also put on a physical profile to proceed at his own pace. In September 2007, the Veteran filed a claim for service connection for residuals of broken L5 vertebrae. At a VA general examination in November 2007, the Veteran complained of daily symptoms of mild to moderate pain in the midline of the low back, which he described as an ache with intermittent sharp spasms. He said the pain worsened with prolonged walking, standing and sitting. He described radiation of pain into the lower extremities and numbness in both legs that usually occurred in the evening. He denied foot drop, unsteady gait or falls. He reportedly was seen by VA for neurological symptoms two days earlier including an episode of urinary incontinence. Magnetic resonance imaging (MRI) results of the lumbar spine were pending at that time. The Veteran did not report flare ups or periods of incapacitation. He said he treats the pain with Flexeril which he takes twice a day with moderate response and no side effects. He added that he occasionally uses a back brace and TENS unit. He had no reported history of surgery and no interference with mobility or ability to perform activities of daily living. He was not working at that time and had previously been enrolled in a community college, but dropped out due to attendance problems. He reported that if he did seek work, it would have to be a desk job because of his back problems. He added that there was no interference with recreational activities or his ability to drive. Findings in November 2007 show that the Veteran had erect posture and a normal gait. He transitioned well from a seated position, to standing, to lying down. Tenderness was noted to palpation over the L5 vertebrae and the lumbar musculature. Range of motion of the thoracolumbar spine revealed forward flexion of 0 to 65 degrees limited by pain. Right and left lateral flexion was 0 to 25 degrees limited by pain. Right and left lateral rotation was 0 to 50 degrees with mild pain in terminal degrees. Following three repetitions, there was no further limitation of range of motion and function due to pain, weakness, fatigability, or lack of endurance. Lower extremity motor tone, bulk and strength and sensation were intact. The Veteran reported that he currently did not have any symptoms of numbness in his legs. Lumbar spine x-rays performed in October 2007 reportedly showed grade I retrolisthesis L4 and L5. L5 was of short stature, and there was a mild convexity involving the anterior portion of the vertebral body rather than concavity consistent with compression fracture. The Veteran was assessed as having L5 compression fracture with persistent symptoms and right knee strain. MRI results of November 2007 revealed broad based protrusion L4-5 likely with right L5 contact. Central protrusion L5-S1 without nerve root displacement. An MRI of the lumbar spine performed at a private medical facility in November 2007 revealed broad based central protrusion at L4-5, likely with right L5 root contact, and central protrusion, but without evidence of nerve root displacement, L5-S1 level. At a VA neurological examination in October 2007, the Veteran reported that about four to five months earlier he developed intermittent numbness and tingling of his right leg while doing minor work around the house. On examination there was no localized pain over the spine and no clear loss of limitation or flexion or extension. The Veteran was able to stand on his heels and toes with a minimal amount of difficulty. Straight leg raising test was negative. Motor examination revealed 5/5 strength with good bulk and normal tone. The reflexes in the knees and ankle were 2+ and symmetric. The medial hamstrings could not be elicited on either side. The toes were downgoing and no sensory findings were seen. On file are VA physical therapy records dated in February 2008 and March 2008. In the Notice of Disagreement dated in August 2008, the Veteran disagreed with his assigned 10 percent rating for his back disability and asserted that he was entitled to a 20 percent rating. He based this on an abnormal gait he said he suffered as a result of permanent damage to his lumbar spine and he requested an additional rating to compensate for future changes which he said would be precipitated by the injury. VA records show that the Veteran reported to the emergency department in November 2008 complaining of low back pain since earlier than week with shooting pain down the right lower extremity. He denied recent trauma, but said he was employed in landscape and motorcycle mechanic school. He was given an impression of acute on chronic low back pain with radiculopathy, known L4-5, L5-S1 pathology, no recent trauma, but highly active lifestyle. He was seen for similar complaints in February 2009. Limited range of motion was noted on extension, but the actual range of motion in degrees is not stated. A March 10, 2009, VA outpatient record shows that the Veteran presented for an unscheduled appointment complaining of chronic and worsening low back pain. He reported an increase in pain since February 2009 when he started a new job that required him to walk 2 miles a day and lifting and carrying over 50 pounds in weight. Objective findings showed limited forward flexion to 40 degrees, extension to 20 degrees, right side flexion to 20 degrees and left side flexion to 40 degrees. The Veteran was assessed as having back pain, without radiculopathy, pain may be related to neuritis. On file is an April 2009 MRI lumbar spine without contrast report noting that the reason for the exam was that the Veteran had pain with radiculopathy for three weeks and that conservative therapy had failed. The impression was abnormalities at L4-L5, and L5-S1. A VA treatment record from the emergency department in November 2009 shows that the Veteran presented with a four day history of low back pain which was sharp and more on the right side. He also reported intermittent pain in the right leg. He said he uses a TENS unit and has been to physical therapy approximately three times in the past and knows how to do home exercises. He denied bowl or bladder incontinence and had no leg weakness or numbness. Findings revealed tenderness to palpation of the right lumbosacral and iliolumbar area. There was no increased lordosis. There was decreased lumbar forward flexion. The Veteran was noted to only be able to reach his fingertips to just below his knees. Neurologically, "DTRs" appeared only slightly less at the right patella as compared to the "right". There was no pain with straight leg raising while seated. The Veteran was able to toe raise without difficulty. Lumbar spine x-rays in April 2009 were noted as showing L4-5 herniated disc protrusion with large right paracentral disc protrusion and l5-s1 mm AP diameter broad based central disc protrusion HNP. The Veteran was assessed as having low back pain with known lumbar disc disease/herniated disc. He was advised to call his primary care physician in three to seven days or sooner if worse. A December 2009 VA outpatient record reflects the Veteran's report of continuing low back pain with right lower extremity radiculopathy to the knee. There was no urine/stool incontinence. Slight right lower extremity muscle weakness was noted after long walks. The Veteran reportedly stopped taking vicodin because this medication since it caused nausea. His present medication included diclofenac and hydrocodone. Findings revealed no tenderness of the lumbar spine and minimal "ttp" of the sacroiliac joint. Muscle strength of the lower extremities was 5/5 and sensation was intact to light touch. At a VA examination in February 2010, the Veteran reported that his back disability had progressively worsened since service. He said the pain originates across the lower back and radiates down his right buttock and lateral right leg into the right foot. He described sharp, shooting pain, then severe residual back aching and right leg aching. He said his bilateral legs used to get numb, but his had not happened over a year. He reported that the onset of pain occurs with heavy lifting, running, staying in one position too long and can come on suddenly without warning. He said at such times he rests, takes medication and uses ice. He described the severity of pain as severe and lasting for three to seven days. He assessed the frequency of pain as weekly to monthly with radiation of pain. There were no reported flare ups of pain and no incapacitating episodes of spine disease. It is noted that the Veteran wore an orthotic insert and was able walk about a 1/2 mile if careful. There were no reported flare-ups. The examiner relayed that in 2007 the Veteran reported to a VA medical center emergency room complaining that he had been unable to get out of bed for the previous 4 hours and had an episode of urinary incontinence. This episode was noted to have occurred after a particularly active day and had not recurred. The Veteran also reported falling in the shower about six months earlier due to his low back condition, and said this was the only time it happened. Other than the incident in 2007 and the fall in the shower, there was no reported history of urinary incontinence, urinary urgency, urinary frequency, numbness, left or foot weakness, falls, unsteadiness, stiffness or spasms. However, there were paresthesias, fatigue, decreased motion ,weakness, and pain. On examination the Veteran had normal posture and revealed symmetry in appearance. He had a normal gait and no abnormal spinal curvatures, lumbar flattening, lumbar lordosis, scoliosis, reverse lordosis or thoracolumbar spine ankylosis. Additional findings revealed no spasm, atrophy, guarding, pain with motion, tenderness or weakness. It was not found that muscle spasm, localized tenderness or guarding was severe enough to be responsible for abnormal gait or spinal contour. Ranges of motion of the thoracolumbar spine revealed flexion from 0 to 85 degrees, right lateral flexion to 15 degrees and left lateral flexion to 10 degrees, right lateral rotation to 20 degrees and left lateral rotation to 10 degrees. There was objective evidence of pain on active range of motion. Also noted was objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion. Results of lumbar spine x-rays taken in March 2009 and April 2009 were noted. The Veteran's usual occupation was that of a fulltime census taker/clerk which the Veteran just began training for two days earlier. He said it was mainly a sedentary/desk job. He noted to have lost no time in the last 12 months. He reportedly just finished school in August 2009 as a motorcycle mechanic, but was still looking for work in this field. The Veteran was diagnosed as having chronic lumbar spine strain with L4-L5 and L5-S1 herniated discs. An associated problem was noted to be lumbar spine degenerative disc disease. This condition was noted to have significant effects on the Veteran's usual occupation and increased absenteeism. Additional effects of this disability on the Veteran's occupation included decreased concentration, decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength and lower extremity pain. This condition as noted to have moderate to severe effects on the Veteran's usual daily activities. The Veteran testified at a Board hearing in July 2010 that he felt that his percentage rating should be higher because his back disability was not going to heal. He said that it was going to continue to worsen as he aged. He explained that with respect to nerve damage, there was a point when he couldn't feel from the waist down and his right leg was completely numb. He also said he lost bladder control and had to go to the VA emergency room. He said he still occasionally experiences a numbing, tingling feeling down his right leg and in his saddle. He denied urinating on himself and said the physical therapy was helping a lot. He said he reports his pain to his doctors, and they tell him that because he worked for a whole year, he's "okay". He said that the condition was going to get worse through the years. He said his back condition prevents him from doing physical jobs necessitated a career change. He denied being prescribed bed rest after service due to his back disability. He reported receiving regular treatment for his back at the VA medical facility in Phoenix. He said that because he has been doing more working out, physical therapy, he did not hurt as much and was more familiar with what he could and could not do. III. Analysis Law and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, the RO has assigned staged ratings of 10 and 20 percent as indicated on the title page. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 50 and 100 percent ratings are warranted for unfavorable ankylosis of the thoracolumbar spine and the entire spine, respectively. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal flexion is 90 degrees, extension 30 degrees, and lateral flexion and rotation 30 degrees. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2004). Discussion Rating Greater Than 10 Percent Prior to March 10, 2009 A higher rating is not warranted for the Veteran's strain and intervertebral disc syndrome, lumbar spine, prior to March 10, 2009, as the symptoms do not more nearly approximate the criteria for a 20 percent rating. The pertinent range of motion findings prior to March 10, 2009, are found on the November 2007 general VA examination report. Range of motion measurements at this examination revealed 65 degrees for forward flexion, 10 degrees for extension, 25 degrees on right and left for lateral flexion and 50 degrees for right and left lateral rotation. Thus, the total combined range of motion of the thorocolumbar spine is shown to be 225 degrees. While there is no disputing that there is some functional loss due to painful motion as nearly all ranges of motion were noted by the November 2007 VA general examiner to be limited by pain, the Board does not find that such functional loss approximates the criteria for a 20 percent requiring limitation of forward flexion between 30 and 60 degrees or the combined range of thoracolumbar spine not greater than 120 degrees. In this regard, the November 2007 VA examiner remarked that following three repetitions, there was no further limitation of range of motion and function due to pain, weakness, fatigability or lack of endurance. Thus, there is no reliable evidence that any Deluca factor, to include pain, functionally limits forward flexion to between 30 and 60 degrees or the combined range of the thoracolumbar spine not greater than 120 degrees. As far as the October 2007 VA neurology examination report, the examiner did not report specific ranges of motion; rather, he stated that there was no clear loss of limitation of flexion or extension. There is also no other basis for a rating higher than 10 percent under the general rating formula, as there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Board has considered the Veteran's written statements and Board hearing testimony, to include his assertion in the August 2008 notice of disagreement that he should be given a 20 percent rating for this period due to an abnormal gait suffered as a result of damage to his lumbar spine. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the November 2007 VA examination report specifically indicated that the Veteran had a normal gait and erect posture. The Board finds that the specific examination finding by a trained health care professional that the Veteran had a normal gait is of greater probative value than the Veteran's lay assertion. In addition, neither the October 2007 nor November 2007 VA examination reports reflected that there were muscle spasms or ankylosis. Thus, there is no basis for a 20 percent rating under the general rating formula. As noted above, the rating schedule for evaluating disabilities of the spine provides that any associated objective neurological abnormalities are to be rated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. However, in this case, consideration of all neurological manifestations of the Veteran's service-connected back disability is deferred pending completion of the directives set out in the remand below regarding the issue of service connection for nerve damage, to include as secondary to residuals of L5 lumbar fracture with retrolisthesis, L4 and L5. Accordingly, a schedular rating higher than 10 percent is not warranted for the Veteran's lumbar spine disability prior March 10, 2009. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107. Rating Greater Than 20 Percent From March 10, 2009 Under the pertinent rating criteria, a higher than 20 percent rating under the General Rating Formula is not warranted for the Veteran's L5 lumbar fracture with retrolisthesis, L4 and 5, because the evidence reflects that there has been no ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees. Rather, findings at the February 2010 VA examination note that there was no thoracolumbar spine ankylosis. As to forward flexion, the Veteran was noted on a March 2009 VA outpatient record to have forward flexion to 40 degrees and was noted at the February 2010 VA examination to have forward flexion to 85 degrees. As noted above, an increased evaluation to 40 percent requires forward flexion of the thoracolumbar spine to 30 degrees or less. As to the DeLuca factors, while there was evidence of pain on motion on the February 2010 VA examination, the examiner reported that there were no additional limitations after three repetitions of range of motion. Thus, the evidence reflects that the pain on motion did not result in functional loss approximating limitation of forward flexion to 30 degrees or less, the criteria for a 40 percent rating under the general rating formula. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (painful motion does equate to limited motion). Consideration has been given to the Veteran's statements and hearing testimony to the effect that his back disability is not going to heal and will continue to worsen with age, and that he should be given an additional rating to compensate for this. However, the Board's decision must be based on the evidence before it and not speculation regarding future symptoms, and that if the symptoms predicted by the Veteran arise, he can file a claim for an increased rating. In other words, VA's Schedule for Rating Musculoskeletal Disorders does not provide for ratings based on the future anticipated level of severity of a disability. As noted above, the rating schedule for evaluating disabilities of the spine provides that any associated objective neurological abnormalities are to be rated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. However, in this case, consideration of all neurological manifestations of the Veteran's service-connected back disability is deferred pending completion of the remand directives below regarding the issue of service connection for nerve damage, to include as secondary to L5 lumbar fracture with retrolisthesis, L4 and L5. For the foregoing reasons, the Board finds that the evidence does not warrant a rating in excess of 20 percent for the Veteran's L5 lumbar fracture with retrolisthesis, L4 and L5, from March 10, 2009. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107. Extraschedular Consideration The only remaining issue is whether referral for extraschedular consideration is warranted. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F. 3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's low back are fully contemplated by the applicable rating criteria. The ranges of motion of the thoracolumbar spine are specifically accounted for under the criteria for rating disabilities of the spine, and the painful motion was also considered under 38 C.F.R. § 4.40, 4.45, 4.59, and DeLuca. As far as any neurologic manifestations of the Veteran's service-connected back disability, this issue has been deferred. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. Therefore, referral for consideration of an extraschedular rating is not warranted. 3.321(b)(1). Finally, under certain circumstances, the claim for an increased rating for a service-connected disability includes a claim of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, such circumstances are not present here. While the February 2010 VA examiner reported that the Veteran's back disability would have significant occupational effects described as decreased concentration and mobility, and problems lifting and reaching, as well as lack of stamina, the evidence does not reflect, that he is unemployable due to his service connected back disability. In this regard, the Veteran reported at the February 2010 VA examination that he just finished school as a motorcycle mechanic and had just started a census job which would be mostly sedentary/desk work. Consequently, the Board finds there is no implicit claim for a TDIU. ORDER Entitlement to an initial rating higher than 10 percent for L5 lumbar fracture with retrolisthesis, L4 and L5, prior to March 10, 2009, is denied. Entitlement to an initial rating higher than 20 percent for L5 lumbar fracture with retrolisthesis, L4 and L5, from March 10, 2009, is denied. REMAND The Veteran maintains that he has residual nerve damage as a result of the compression fracture, L5, he suffered in service. On file is an opinion from the October 2007 VA neurological examiner, who noted that the Veteran suffered from a minor compression fracture of the L5 vertebrae in service and said that these types of fractures heal without incident. He opined that there was no way that could explain any new onset of numbness and tingling in the Veteran's right leg and that "perhaps" the Veteran developed a completely new and unrelated condition. Also on file is a private evaluation report from Ahwatukee Sports & Spine, dated in October 2007, containing the physician's opinion that he "suspects" that the Veteran's back symptoms are due to mechanical compression of right L5 nerve root with minimal chemical irritation causing slight right "EHL" weakness. Both of these opinions are speculative and inadequate to properly assess the Veteran's claim. It is also pertinent to note that in addition to the Veteran's compression fracture, L5, in service, his service treatment records show that he was seen for complaints of right hip pain in September 2004 and was diagnosed at that time as having acute exacerbation right sciatica syndrome, new onset. Neither one of the medical opinions above addressed this pertinent evidence in their opinions. The record shows that the Veteran was most recently afforded a VA examination in February 2010. However, the examination report does not contain an opinion as to whether the Veteran has nerve damage related to service or objective neurologic abnormalities associated with his service connected lumbar spine disability. With respect to VA examinations, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Veteran must be afforded a new examination that adequately addresses whether the Veteran presently has nerve damage due to service or objective neurologic abnormalities associated with his service-connected lumbar spine disability. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA neurological examination for the purpose of obtaining an opinion as to the nature and etiology of any neurologic abnormalities. The examiner should specify what neurologic abnormalities the Veteran has and opine as to whether such manifestations either constitute nerve damage related to service or constitute objective neurologic abnormalities associated with his service-connected lumbar spine disability. A complete rationale should accompany any opinion provided. 2. Thereafter, the RO/AMC should readjudicate the claim for entitlement to service connection for nerve damage, to include as secondary to residuals of L5 lumbar fracture with retrolisthesis, L4 and L5. If any benefit sought remains denied, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The Veteran 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. 2011). ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs