Citation Nr: 1237480 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 06-18 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine. 2. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine prior to August 3, 2011, and in excess of 60 percent thereafter. 3. Entitlement to a total disability rating due to individual unemployability (TDIU) due to service connected cervical and lumbar spine disability prior to August 3, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to March 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2008, the Veteran withdrew his request for a Travel Board hearing. See 38 C.F.R. § 20.704(e) (2011). In June 2010, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, DC for further evidentiary development. Thereafter, in a November 2011 rating decision, the AMC increased the rating for the Veteran's service-connected lumbar spine disorder to 60 percent, effective August 3, 2011. A March 2012 rating decision by the AMC granted entitlement to TDIU effective August 3, 2011. The case is now returned to the Board for further consideration. The Board notes that issues of entitlement to service connection for depression and migraines as secondary to his service connected spine disorder have been raised by a written statement submitted by the Veteran in August 2010. In addition, the Veteran's representative has raised the issue of entitlement to special monthly compensation for schedular housebound (disability rated totally disabling plus additional disability rated 60 percent). These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the entire appeal period, the service-connected cervical spine disability has been manifested by pain, functional impairment, and muscle spasm. 2. For the period prior to August 3, 2011, the service-connected lumbar spine disability was manifested by symptoms including repeated flare-ups of pain resulting in severe functional impairment and requiring repeated injections for pain; there was no objective evidence of incapacitating episodes of a total duration of at least 6 weeks. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent for degenerative disc disease of the cervical spine have been more nearly approximated from April 1, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2011). 2. The criteria for an initial rating of 40 percent for degenerative disc disease of the lumbar spine have been more nearly approximated from April 1, 2004 to August 3, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2011). 3. The criteria for a rating in excess of 60 percent from August 3, 2011 for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, preadjudication VCAA notice was provided in an August 2003 letter, which advised the Veteran of what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. A March 2006 letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was last adjudicated in March 2012. In any event, the Veteran's claim for higher ratings arises from the initial grant of service connection for cervical and lumbar spine disorders. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records and examination reports, Social Security Administration records and private medical records. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, VA examinations were conducted and VA treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by responding to notices and by providing argument regarding his claim. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2011); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2011); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2011); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2011). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2011); see also 38 C.F.R. §§ 4.45, 4.59 (2011). The RO has assigned an initial 10 percent rating for the service-connected cervical spine disability, and an initial 10 percent rating for the service-connected lumbar spine disability prior to August 3, 2011 and a 60 percent rating from August 3, 2011. The cervical spine disability throughout the pendency of this appeal and the lumbar spine disability prior to August 3, 2011 have been assigned the initial 10 percent ratings pursuant to Diagnostic Code 5237. From August 3, 2011, the lumbar spine disability has been assigned a 60 percent rating under Diagnostic Code 5243. Neck and back disabilities rated under Diagnostic Code 5237 (lumbosacral or cervical strain) are evaluated under the General Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under Diagnostic Code 5243, intervertebral disc disease can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Id. Under the General Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted if there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for ankylosis of the entire spine. Id. In the absence of unfavorable ankylosis of the entire spine, impairment of the thoracolumbar spine and cervical spine is rated separately. Id., Note (6). Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. Id., Note (1). Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (2), General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V (2011). Under Diagnostic Code 5243 intervertebral disc syndrome may be rated under the General Formula for Diseases and Injuries of the Spine, outlined above, or it may be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, depending on whichever method results in the higher evaluation. The rating criteria based on incapacitating episodes provides that a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating applies for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating applies where the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent rating applies where evidence shows the incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Cervical Spine The report of a November 2003 VA general medical examination, conducted during active duty, revealed the Veteran reported neck pain at a constant 3/10 intensity since 1994. The pain depended on activity. He occasionally took Motrin when it was more severe. He had an MRI and x-ray and was told surgery was not indicated as it would require fusion. He was noted to have been ordered off of work for 1-2 weeks over the past 10 years. Examination revealed the cervical spine motion included flexion and extension to 45 degrees, left and right lateral bending limited by discomfort to 30 degrees and left and right rotation to 80 degrees. Combined this added up to 310 degrees. There was no evidence of painful motion except on lateral bending that was somewhat restricted by pain. There was no evidence of fatigability, weakness or incoordination on repetitive movement. Neurologically he was intact. Review of the MRI's disclosed degenerative disc disease (DDD) in the cervical spine. The diagnosis was DDD of the cervical spine. Private treatment records from 2004 and 2005 primarily addressed low back pain, although neck pain was noted in a March 2005 record addressing his back pain. Neck pain was also noted in a July 2005 record which contained an observation that this was not a major issue at this point. The report of a February 2006 VA examination for radiculitis of the bilateral lower extremities included some findings pertinent to the cervical spine. His posture was within normal limits. Neurological examination of the upper extremities revealed sensory and motor function was within normal limits. He had 2+ biceps and triceps jerk of both upper extremities. The rest of the examination focused on lumbar radiculitis manifestations. A March 2006 VA spine examination focused solely on lumbar spine complaints with no findings for the cervical spine reported. Private records from 2006 show treatment for complaints that included neck pain, with cervical spine findings in February 2006 showing tenderness and limited motion on rotation and extension although the ranges were not recorded. Clinically, his neck pain seemed related to facet joint arthritis. A treatment option included steroid injection in the cervical facet joints, which was undertaken in March 2006. In April 2006 the relief from this injection did not last, and he had worsening pain of 6-7/10 in intensity. Examination revealed mild to moderate tenderness over the trapezious and scapulae muscles, and mild muscle spasm of the shoulders. He was deemed to need radiofrequency ablation at C3-4, C4-5, and underwent this procedure in May 2006 on the right and June 2006 on the left. Such procedures provided gradual relief of the cervical pain, with it dropping from 7 to 4 in intensity. By September 2006, he reported that his neck pain persisted after the radiofrequency treatment. He persisted with long term opioid treatment in part for his cervical symptoms, but primarily for lumbar spine problems. Examination that month revealed minimal tenderness over the cervical spine, but no sensory or motor deficits. In November 2006, his cervical pain increased and he underwent an occipital nerve block the following month. He underwent another such procedure in August 2007. He underwent another radiofrequency ablation in September 2007 to treat his cervical spine, which resulted in temporary side effects of a nonspecific neuritis, described as a sunburn like pain with sensitivity to touch. By October 2007 the side effects were beginning to resolve, but he continued to be tender to light touch beginning at the C5-6 region and extending to the occipital region, only on the right. He had no symptoms on the left side, and his muscle strength of both upper extremities was 5/5 throughout. A November 2007 follow-up note that in part addressed cervical spine symptoms noted that the Veteran dealt with chronic pain on a daily basis, even with all the medication changes. He was described as being very inactive and very limited in everything. He continued with tenderness over bilateral occipital regions. He also had radicular symptoms with just palpation of the spine, which increased with activity. A January 2008 follow-up noted complaints of neck pain beginning to return, and he wanted to repeat the radiofrequency procedure. The records throughout the rest of 2008 and 2009 focused primarily on lumbar spine issues, with no findings pertinent to the cervical spine, other than noting ongoing neck pain on follow-ups. A May 2010 treatment record reflected decreased range of motion of the cervical spine on flexion, extension and lateral rotation. He was assessed with cervical DDD with cervical radiculitis symptoms. In an August 2010 lay statement the Veteran argued that he has chronic neck pain that travels down his right arm. The report of an August 2011 VA examination included review of the claims file. The history of the cervical spine disorder was noted with current treatment regimen that included physical/occupational therapy, TENS, local injections and radiofrequency thermal coagulation to the cervical facet branches. He had poor response to treatment. His medications included Gabapentin, Tramadol, Buproprion, Exalgo, Valium, Dilaudid, Mobic and Advil. He cited side effects from the medication including constipation, nausea and daytime drowsiness. Flare-ups of neck pain happened every 2 to 3 weeks lasting 1-2 days, and were alleviated by bedrest. The flare-ups were brought on by activities such as cooking, washing dishes, weeding, driving and folding laundry. During flare-ups he would lie down and could not finish his daily activities. He did report weakness, numbness/paresthesias. He had a history of fatigue, decreased motion, stiffness, weakness and spine pain, distributed from the neck with radiation to the right arm. He reported intermittent numbness in his right thumb and second digit when he turned his head to the right. He was said to have no incapacitating episodes of spine disease. The neck pain radiating to the right arm and hand was severe and constant on a daily basis. Physical examination revealed his spine position was stooped in a fixed flexed position, with his head position forward. He walked slowly with a cane. There was no ankylosis of the cervical spine. The left and right side of the cervical spine had spasm, atrophy, pain on motion, tenderness and weakness. His active range of motion was 45 degrees flexion and left lateral flexion respectively, 30 degrees extension, 40 degrees right lateral flexion, 60 degrees left lateral rotation and 65 degrees right lateral rotation. Combined this added up to 285 degrees. He had pain on motion including on repetitive motion. There were no additional limitations after 3 repetitions. Detailed reflex examination showed that he was 2+ throughout his upper extremities. Detailed motor examination was a normal 5 throughout the upper extremities, with normal muscle tone and no atrophy. Following review of the diagnostic tests over the years the examiner diagnosed cervical DDD. The effects of this on his usual occupation included increased absenteeism, decreased mobility with lifting and pain. He had problems with activities as he could not sustain any forward bending such as washing dishes and could not stand for extended periods of time. With respect to both spinal disabilities, the examiner noted that the Veteran was unlikely to be able to perform either sedentary or physically active labor due to his inability to carry anything over 10 pounds more than once a day or sit longer than 15-20 minutes at a time. Any employment would require frequent breaks to lie down throughout the day. He was also unable to concentrate mentally due to the chronic pain medications used in part to treat his cervical pain, as well as for his lumbar spine. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the symptomatology from the Veteran's cervical spine more nearly approximates functional impairment consistent with a 20 percent rating. See DeLuca, supra; see also 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59. In this regard, although the Veteran's range of motion falls within the criteria for a 10 percent rating, the disability picture during the course of the appeal reflects objective findings including muscle spasms and recurrent flare-ups, and required repeated injections for pain. The Board finds such symptomatology, including his complaints of radiating pain, reflect a disability picture more consistent with a 20 percent rating. An even higher rating is not warranted as functional impairment consistent with cervical spine motion limited to 15 degrees or less has not been shown. Indeed, forward flexion, when recorded, has been to 45 degrees. The Board also finds that separate ratings for neurologic complaints are not warranted. Although the Veteran has subjectively reported pain and sporadic numbness in his right upper extremity including in his lay statement from August 2010 and in the August 2011 VA examination, there is no objective evidence of any neurological deficits related to the cervical spine disability. The objective findings from examination reports and medical records have indicated completely normal sensory, motor and reflexes evaluations for both upper extremities. No objective findings of a cervical radiculopathy are shown. Thus, there is no showing that the Veteran objectively manifests neurologic symptoms as a consequence of his service-connected cervical spine disability such that a separate compensable rating could be assigned. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8519. In addition, the record fails to establish that the Veteran's cervical spine disability has resulted in any incapacitating episodes. As noted above, the Veteran specifically denied any incapacitating episodes due to his cervical spine disorder on VA examination in August 2011. While this same examination did describe flare-ups of 1-2 days duration that took place every 2 to 3 weeks and were alleviated by bedrest, these were brought on by various activities, and were not shown to require doctor prescribed bedrest. Most significantly, there is no evidence of doctor prescribed bedrest shown for the cervical spine disorder, and records from his private physician do not reflect such. Accordingly, any contention of incapacitating episodes is not supported by the objective evidence of record, and a higher evaluation based upon incapacitating episodes is not warranted. In summary, the Board concludes that, after resolving all doubt in the Veteran's favor, his cervical spine disability more nearly approximates the criteria for a 20 percent rating during the course of the claim. The symptomatology has been adequately addressed by the 20 percent evaluation being assigned for the period from initial entitlement, and does not more nearly approximate the criteria for a higher evaluation at any time during that period. See Fenderson v. West, 12 Vet. App. 119 (1999). In this regard, the Board concludes the medical findings on examinations and treatment records are of greater probative value concerning entitlement to an evaluation in excess of 20 percent than the Veteran's allegations regarding the severity of his cervical spine disorder. The Board has also considered whether the Veteran's cervical spine disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2011); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for more severe symptom, including based on loss of motion, neurological manifestations and incapacitating episodes than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusion above, the Board has considered and applied the benefit of the doubt doctrine. However, as the preponderance of the evidence is against an even higher evaluation for the cervical spine disability, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Lumbar Spine As an initial matter, the Board notes that the Veteran was in receipt of separate compensable ratings for radiculitis of the lower extremities from April 1, 2004 until August 3, 2011, when his back disability was rated based on incapacitating episode under Diagnostic Code 5243. The Veteran did not appeal the evaluation assigned for the radiculitis, and symptoms related to such cannot be considered when evaluating the Veteran's lumbosacral spine disability under Diagnostic Code 5237. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Board will consider the symptoms when addressing whether a rating pursuant to incapacitating episodes is more advantageous under Diagnostic Code 5243. Turning to the evidence pertinent to the appeal for a higher rating for his lumbar spine disorder, the report of a November 2003 VA general medical examination, conducted during active duty, revealed the Veteran reported low back pain since the 1990's with no surgery. He had no surgeries and had 1 epidural injection with 2 more scheduled in upcoming months. The injection provided some relief for 2-3 weeks. He noted that he was recently an inpatient for 3 days at Creighton Hospital for low back pain. His MRI revealed DDD with several bulging discs. Examination revealed that the lumbosacral spine was non tender to palpation, with 90 degrees flexion, and 30 degrees for the rest of the motions, including extension, left and right lateral flexion and left and right rotation. He was noted to perform maximally to get normal motion and it took him a long time to do so. He was reluctant to repeat the motions perhaps due to early fatigability. There was no evidence of weakness or incoordination, aside from a little cogwheeling at the end of the range of motion. Neurologically he was intact. Review of the MRI's disclosed DDD in the lumbar spine. The diagnosis was DDD of the lumbosacral spine with history of episodes of lower leg radiculitis to the mid calf according to review of the clinic notes. From September 28, 2004 to October 5, 2004, the Veteran was hospitalized for intractable back pain, severe muscle spasm, leg pain and extreme difficulty with ambulation. The precipitating history was that the day prior to admission, he developed acute back pain after moving a commode while working as a carpenter. Prior to admission he had positive straight leg raise and was unable to get off the examination table due to extreme pain. He underwent treatment with administration of pain medication via IV and other means along with epidural steroid injections. With this treatment he made slow clinical improvement and by the time of discharge was experiencing some good relief. MRI from this stay showed a small right disc herniation at L4-5 with right L5 root mass effect. Private treatment records show treatment in 2005 for ongoing back pain. A February 2005 private orthopedic consult in part for lumbar spine complaints of pain and occasional sciatica revealed no tenderness and normal range of motion. Straight leg raise, bowstring and reflexes were all normal. Sensation and motor strength were also normal. His lower extremities also had full range of motion without tenderness or other significant findings. The assessment was lumbago. The MRI was reviewed and noted to show degenerative disc bulge secondary to rupture at L4-5 and minor disc disease at L5-S1. In March 2005 he was seen for low back pain radiating posteriorly over both buttocks to the back of his thighs to the knees. This was generally at a 4/10 level and was associated with spasms and weakness of the legs. Activities such as standing, walking, driving, lifting and bending worsened it and heat relieved it. He was not working but did some household chores including cleaning, cooking and lifting. He participated in family activities. He previously worked as a carpenter but stopped due to pain. He used Vicodin and Valium. He also still used Vioxx despite it being withdrawn from the market. He had a history of treatment with steroid injections and physical therapy. Examination revealed him to be sitting comfortably with normal spine alignment and normal range of motion. He had mild paravertebral muscle tenderness without significant spasm. He had normal muscle tone and strength and negative straight leg test. He was noted to have failed multiple treatment modalities and continued with a low dose of Vicodin without improvement in his quality of life. It was concluded that a nucleoplasty surgery should be considered with more testing to determine the number of discs involved. His L4 disc was believed to be the likely source of his pain. A May 2005 lumbar discogram revealed extremely severe pain at the L4-5 level, with findings suggestive of annular tears. A CT scan of the same month also suggested a radial tear at that same level communicating with a broad based disc bulge or herniation which produced moderate central canal stenosis and L4-5 foraminal stenosis. The doctor addressing these CT findings discussed medication management options including opioid analgesics and anti inflammatories. The Veteran was described as having restrictions on activities of daily living in terms of lifting, pushing, pulling or long distance driving. Possible surgical versus nonsurgical options were further discussed. He underwent steroid injection in May 2005. The records from July 2005 to the end of 2005 showed ongoing treatment and monitoring of medications. He persisted with pain over the lumbosacral area radiating down the buttocks to the thighs, particularly affecting the right hip in July 2005. He was stable on current medications in August 2005 with diffuse tenderness to palpation at L4-5 and antalgic gait, but otherwise he had adequate lower extremity strength. In November 2005 his back pain was described as worsening with radiation to both lower extremities. He was noted to not currently be pursuing a surgical option as he had not received a call or information about disc replacement surgery. Other options were discussed to include percutaneous nucleus decompression via needle. He also underwent a steroid injection in November 2005 and December 2005. An August 2005 letter by the Veteran's private doctor to the Social Security Administration discussed his treatment for intractable low back pain diagnosed as DDD, with CT findings of a tear at L4-5. He was noted to be presently treated with strong opioid medications and anti-inflammatories. This doctor opined that functionally the Veteran was not able to do any meaningful activities, and would require pain medication for a long time. A September 2005 letter from another physician also discussed the Veteran having fairly significant functional limitation and ongoing pain related to the herniated disc at L4-5. Surgical and non surgical options were considered but he currently was on a pain regimen including Hydromorphone, Baclofen and Mobic. Again he was described as unable to do meaningful work due to his back pain, functional limitations and chronic pain syndrome. The report of a February 2006 VA examination for radiculitis of the bilateral lower extremities noted a history of lower back L5-L5 rupture which pushed on nerves. The condition has existed for approximately 4 years since 2003. Parts of his body affected by the nerve disease were lower back and both legs with stabbing pain to toes. There was tingling and numbness, pain constantly and weakness of the affected parts. This resulted in pain that traveled from the back to the toes and feet. As a result, he could not sit, stand, walk, or lie down in one place for long periods. The pain occurred constantly, and the nature of it was burning, aching, sharp and cramping. From 1 to 10 (10 being worst pain) the pain level was at 8. The pain could be elicited by physical activity or come up by itself. It was relieved by rest and the medication, oxycodone, Percocet, Lylia, Mobic. At the time of pain he could not function on medicine. His back hurt all the time in all positions including sitting, standing, walking or resting. The current treatment was Oxycodone, Percocet, Mobic, Lyrica. From the above condition the functional impairment was that he cannot stand, bend, sit, lie, walk without extreme pain. He was not working when he developed this condition. Physical exam of the extremities revealed no ulceration, edema or stasis dermatitis. There was no clubbing or cyanosis. His leg length was equal and there was no evidence of abnormal weight bearing. His posture was within normal limits, as was his gait. He did not require an assistive device for ambulation. Neurological examination of the lower extremities revealed that sensory and motor function was within normal limits. His reflexes of both lower extremities were all 2+. For the VA established diagnosis of radiculitis, bilateral lower extremities, the diagnosis was changed to bilateral radiculopathy to lower extremities. The etiology of the peripheral nerve disease was low back pain. The effect of the condition on his daily activity was an inability to bend to pick up objects. On March 8, 2006, the Veteran underwent a VA examination for lower back condition with radiculitis of the bilateral lower extremities. He related a history of being hospitalized for 10 days in October 2003 (before discharge from service) and 8 days in October 2004. Since then he has been seen by pain management for severe pain. Tests included a discogram that indicated a middle tear in disc at L4-L5 and conjoined root at L5-S1. He had a history of having undergone 7 injections in lower back L4-L5 since October 2003. He was awaiting disc replacement surgery. He suffered from the following symptoms resulting from the spine condition: stiffness sitting, walking, standing, bending and weakness down left and right legs, left and right feet and lower back. Due to the spine condition he has suffered from pain located at his back down both legs to his feet for 3 years. The pain occurred constantly. The pain traveled down both hips into the legs and feet. The characteristic of the pain was burning, aching, sharp and cramping in nature. From 1 to 10 (10 being worst pain) the pain level was at 10. The pain could be elicited by physical activity, stress and bending, standing, walking, sitting, laying. The pain came on by itself. It was relieved by rest and the medication, which was Oxycodone, Valium, Mobic, Percocet, Lyrica. At the time of pain he required bed rest. In addition to the above cited hospitalizations and injections he also treated via physical therapy, chiropractor, heat and ice therapy, and medicine. He related incapacitating episodes as often as 365 times per year, with each episode lasting for 1 day. In other words, over the past year he had 365 incidents of incapacitation for a total of 365 days. The Veteran reported that the physician who recommended bed rest was Dr. Aurora, who was his pain management doctor seen monthly for 2 years beginning in 2004. The second physician who recommended bed rest was Dr. Karras who was his primary care manager during the same time as Dr. Aurora. From the above condition the functional impairment was described as affecting walking, standing, bending, sitting, carrying, lifting, working, lying down, sleeping, cooking, bathing, dressing, and sexual performing. Any action increases severity of pain through lower extremities. Physical examination revealed that his posture and gait were within normal limits. He did not require an assistive device for ambulation. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curvatures of the spine. Examination of the thoracolumbar spine revealed no complaints of radiating pain on movement. Muscle spasm is absent and no tenderness was noted. There is negative straight leg raising bilaterally. There is no ankylosis of the lumbar spine. Range of motion of the thoracolumbar spine was normal in all directions with 90 degrees flexion and 30 degrees for the rest of all motions (combined to 240 degrees). Pain occurred at the extremes of all motions. The joint function of the spine was additionally limited by pain after repetitive use. It is not additionally limited by fatigue, weakness, lack of endurance and incoordination after repetitive use. There was no additional limitation of motion by these factors. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. The Veteran declined rectal or genital examination. Neurological examination of the lower extremities revealed that sensory and motor function were within normal limits. Reflexes on knee and ankle jerk were 2+ bilaterally. The attached lumbar spine x-ray report showed minimal degenerative facet disease of L4, to S1. The diagnosis was degenerative facet disease of L4 to S1. Private records from 2006 show treatment for complaints that included low back pain and bilateral leg pain. In February 2006, he noted that the steroid injections at L4-5 with short term relief and the last injection made his pain worse. He was noted to be taking Oxycontin, Lyrica, and Mobic. He also took Percocet for breakthrough pain. Disc replacement surgery was noted to be ideal, but was technically and financially infeasible. Other treatment options such as percutaneous nucleoplasty or intradisc electrothermal treatment (IDET) were discussed in February 2006 and March 2006. In September 2006 he was seen for back pain, and described the sensation in his hips as "exploding." The multiple opioid medications were not helping his leg pain. Examination showed minimal tenderness over the lumbar spine, but straight leg was positive on the right. Plans including administering a steroid injection in the L4-5 region were discussed in September and October 2006. He underwent a caudal epidural steroid injection in November 2006, and records from this month described him as responding well to treatment. In July 2006, the Veteran's pain doctor, Dr. Aurora, submitted an affidavit to the Social Security Administration describing the Veteran having low back pain radiating over both buttocks, into the thighs and knees. The pain was worse on standing, bending, twisting or walking. The Veteran reported that he tried to work as a carpenter, but pain kept him from continuing. He failed steroid injections, TENS unit, and physical therapy. Degenerative changes at L4-5 were suggested by MRI. The doctor recommended that he avoid bending or lifting more than 10 pounds at one time per day. Sitting for prolonged periods was also contraindicated. By January 2007, his low back pain was increasing, and was reported at a 6/10 level, even when using Oxycontin and Percocet. Injections did not provide significant relief and other treatment options were discussed. He had tenderness to palpation throughout the entire lumbosacral spine and positive straight leg raise. Other treatment modalities including aquatic therapy were discussed. Records in March 2007 and April 2007 discussed issues with his medications that were adjusted, and noted that insurance and other issues precluded his attempts at physical therapy. On examination in April 2007, he was noted to walk very gingerly with significant tenderness to palpation in the lumbar spine. A November 2007 follow-up note that in part addressed lumbar spine symptoms noted that the Veteran dealt with chronic pain on a daily basis, even with all the medication changes. He was described as being very inactive and very limited in everything. His thoracic and lumbar spine had significant tenderness to palpation through the S1 joints. He had radicular symptoms with just palpation of the spine, which increased with activity. A January 2008 follow-up noted complaints of pain radiating down the back along the L5 distribution, but his current treatment regimen with multiple painkillers appeared to be controlling his symptoms. He had minimal tenderness over the paralumbar muscles, and no sensorimotor deficits along the right lower extremity. At this point, the doctor did not believe any neurological deficit was present. He underwent a steroid injection at L5 in February 2008, and another such injection in March 2008, that was fluoroscopically guided. His symptoms in March 2008 that prompted the repeat injection included worsening left leg and buttock pain that radiated to the heel, and S1 nerve root pain, without numbness or tingling. He was noted to walk with a cane. He was described as responding well to the caudal injections in April 2008, with no planned repeats unless his pain worsened. In July 2008 he was seen for low back and bilateral leg pain, but reported his medications worked as usual, with a 25 percent relief from such medications described. On examination he had difficulty walking due to back pain, and positive straight leg raise. He underwent another fluoroscopically guided epidural injection in August 2008. Shortly after this injection, he returned with severe pain radiating from the buttocks down to the toes in an L5 distribution, and no improvement from the injection. His pain was at a 10/10 level before and after the injection and he had a neurological deficit shown with brisk reflexes. However, he had no sensorimotor deficit. He was given another epidural injection into the lumbar spine for temporary relief and was sent for an emergency MRI. This MRI was noted to be normal according to another August 2008 note, but the Veteran still reported pain of a 9/10 intensity. Examination was negative for any positive findings other than the subjective weakness of the right lower extremity. The Veteran indicated the back and leg pain were unchanged. By October 2008, his back pain was gradually decreased and was back to baseline, at the usual 6/10 level. He was not having as much lower extremity weakness. In January 2009 he reported his pain at a 7/10 level. The MRI was reviewed and was said to show a tiny disc protrusion at the L4-5 level. His pain was controlled with opioids. He was described as functionally very limited and walked with a cane. The doctor stated that there was a disparity between the severity of his pain and his findings on physical examination and MRI. In March 2009 he underwent further epidural injection of the lumbar spine via fluoroscope. On follow-up in June 2009 the injection relieved most symptoms, but he still had issues with his right leg, and findings of hypersensitivity to touch over L4-5. He underwent repeat injections in September 2009 and October 2009, and by October 2009 his lumbar pain dropped from an 8 to 5 on the scale of 1-10. He had no spasm or swelling and was doing fairly well following the injection. He was deemed to need about 2-3 such injections per year. By January 2010, his most recent caudal injection was noted to have only provided slight relief of 10 percent, and only lasted for 1 month. He also cited a new side effect of localized swelling for several weeks. Examination revealed that he had diffuse tenderness to palpation throughout the left paravertebral area, but no other significant findings such as swelling or spasm. His strength was 5/5 and straight leg raise was negative. Normal findings were also shown on an epidurogram done in February 2010. The same month, he underwent another injection via fluoroscopy. An April 2010 letter from Dr. Aurora described the Veteran as being limited in activities of daily living and not being in a position to push, pull or lift heavy objects due to his lumbar spine condition. He was deemed to not be a surgical candidate and was expected to require narcotic or opioid treatment for the rest of his life. Overall the doctor opined that he would not be able to return to any type of work. In an August 2010 lay statement the Veteran argued that he has chronic low back pain which radiates down both lower extremities to his feet. He said that there are times that he requires complete bedrest due to ongoing extensive treatment and procedures, and after severe flare-ups. Occasionally, bedrest lasting up to a week at a time was necessary. The report of an August 2011 VA examination included review of the claims file. The history of the lumbar spine disorder was noted with current treatment regimen that included physical/occupational therapy, TENS, and local injections. He had poor response to treatment. His medications included Gabapentin, Tramadol, Buproprion, Exalgo, Valium, Dilaudid, Mobic and Advil. He cited side effects from the medication including constipation, nausea and daytime drowsiness. He also had tolerance issue from the pain medication. Flare-ups happened every 2 to 3 weeks lasting 1-2 days, and were alleviated by bedrest. The flare-ups were brought on by activities such as cooking, washing dishes, cooking, weeding, driving and folding laundry. Any forward bending worsened his low back pain. During flare-ups he would lie down and could not finish his daily activities. He did report weakness, numbness/paresthesias. He also reported leg and foot weakness and unsteadiness. He had a history of fatigue, decreased motion, stiffness, weakness and spine pain. Location and distribution was low back pain with radiation to his feet and toes bilaterally. It was severe and constant on a daily basis. He was said to have no incapacitating episodes of spine disease but had an understanding with his physician as to bed rest when his back pain flares. Physical examination revealed his spine position was stooped in a fixed flexed position, with his head position forward. Asymmetry was shown with his left shoulder slightly higher than the right. He walked slowly with a cane. He had kyphosis, lumbar flattening and scoliosis. However, there was no ankylosis of the lumbar spine. Both the left and right side of his lumbar spine had spasm, guarding, pain on motion, tenderness and weakness. There was no atrophy. His active range of motion was 30 degrees on forward flexion, left lateral flexion, and right rotation respectively. The remainder of the motions was 20 degrees right lateral flexion and left lateral rotation respectively, and 10 degrees extension. He had pain on active and repetitive motion. The examiner was unable to test for additional limitation after 3 repetitions due to pain and muscle spasm. Detailed reflex examination showed that he was 2+ throughout his lower extremities, except for knee jerk on the right which was 3+. Detailed motor examination was a normal 5 throughout the lower extremities, with normal muscle tone and no atrophy. Following review of the diagnostic tests over the years the examiner diagnosed lumbar DDD. The effects of this on his usual occupation and activities of daily living were the same as those reported for the cervical spine. The opinion regarding his lumbar spine condition on his ability to work was the same as that regarding the cervical spine's affect on his ability to work. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board, after resolving all doubt in the Veteran's favor, finds that the Veteran's lumbar spine DDD has consistently resulted in severe functional impairment consistent with a 40 percent rating. See DeLuca, supra; see also 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59. The evidence throughout the pendency of this appeal has shown his lumbar spine disorder results in intractable pain with repeated flare-ups that have resisted multiple treatment modalities including repeated fluoroscopic injections and therapies, and has required the long term use of multiple combinations of opioid drugs. Such treatment has only provided minimal relief of symptoms. As early as an August 2005 letter, his private doctor discussed his treatment for intractable low back pain with strong opioid medications and anti-inflammatories, providing an opinion that functionally the Veteran was not able to do any meaningful activities. While range of motion testing, when conducted, does not reflect forward flexion limited to 30 degrees, the medical evidence during his repeated flare-ups suggests significant limitation of motion at that time and severe symptomatology. Accordingly, the Board concludes that the functional impairment caused by the Veteran's lumbar spine disorder more nearly approximates the criteria for a 40 percent rating under the General Formula for Diseases and Injuries of the Spine. The Board finds, however, that a higher 60 percent rating pursuant to the rating criteria for incapacitating episodes is not warranted for the period prior to August 3, 2011. The record does not reflect evidence of episodes of doctor prescribed bedrest, other than his hospitalization during service and his hospitalization for 8 days in October 2004. Combined, this period adds up to 18 days of bed rest, which supports a 20 percent rating under Diagnostic Code 5243. The Board acknowledges that the Veteran has reported that he and his physician have an understanding regarding bed rest and that during the March 2006 VA examination he reported being incapacitated 365 days per year. In his August 2010 lay statement, the Veteran described times that he requires complete bedrest occasionally up to a week at a time due to ongoing extensive treatment and procedures, and after severe flare-ups. However, review of the treatment records during this period fail to reflect doctor prescribed bed rest exceeding a combined period of 6 weeks. Although the Veteran reported during the March 2006 VA examination that he had incapacitating episodes 365 days a year lasting one day, physical findings at that time did not suggest he was experiencing an incapacitating episode at that time, nor do treatment records during this time frame reflect daily prescribed bed rest. Indeed, in a July 2006 affidavit to the Social Security Administration, the Veteran's pain doctor, Dr. Aurora, made no mention that bed request was required, instead noting that bending, lifting more than 10 pounds, and sitting for prolonged periods was contraindicated. Had the Veteran been prescribed bed rest for significant periods of time as is suggested, he clearly would have mentioned such when providing support for the Veteran's claim for Social Security benefits. Thus, the Board finds the contention concerning the extent of prescribed bed rest is not credible. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Accordingly, the preponderance of the competent and credible evidence is against an evaluation in excess of 40 percent for the Veteran's DDD of the lumbosacral spine for the period prior to August 3, 2011. Additionally, the Board finds that a rating higher than 60 percent is not warranted from August 3, 2011. In this regard, to warrant an evaluation in excess of 60 percent, the evidence must show ankylosis of the entire spine, which would warrant a 100 percent rating. There is no competent evidence of record suggesting the entire spine is ankylosed. Further, the Board has considered whether a higher rating could be assigned by separately rating orthopedic and neurologic symptoms from August 3, 2011. As noted below, a 40 percent rating is warranted for orthopedic symptoms. However, the evidence detailed above fails to show the Veteran's neurological manifestations to be more than 10 percent disabling per leg, as it is not shown to be more than a mild incomplete paralysis per leg. Generally, the evidence in treatment records and examination reports reflects subjective complaints of pain radiating into both extremities, without objective findings of sensory or motor deficiencies that would more closely resemble a moderate incomplete paralysis. Of note, the August 2011 neurological examination of both lower extremities showed essentially normal findings on strength and reflexes, except for brisk reflexes of 3+ on the right. Under Diagnostic Code 8520 mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The competent evidence of record does not reflect findings resembling a moderate incomplete paralysis for either lower extremity. The combined rating of the 10 percent ratings for each leg and the maximum 40 percent rating for limited motion of the lumbar spine is less than the 60 percent rating based on incapacitating episodes. As the evidence fails to show that either lower extremity is more than mildly disabling, rating the Veteran's lumbosacral spine disability based on incapacitating episodes is more advantageous to the Veteran. In conclusion, the evidence supports entitlement to a 40 percent rating, but no higher, for the lumbar spine disorder from initial entitlement to August 3, 2011 based upon pain and functional impairment. The evidence does not support a rating in excess of 60 percent disabling for the lumbar spine disorder from August 3, 2011. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the Veteran's lumbar spine disability, from initial entitlement, presented an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2011); Bagwell, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for more severe symptoms, including based on combined loss of motion and neurological manifestations and ankylosis. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. 111, 115 (2008). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against this portion of the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial disability rating of 20 percent for degenerative disc disease of the cervical spine is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Entitlement to an initial disability rating of 40 percent for degenerative disc disease of the lumbosacral spine for the period prior to August 3, 2011 is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 60 percent for degenerative disc disease of the lumbosacral spine, for the period beginning on August 3, 2011 is denied. REMAND The Board notes that the RO denied a claim for TDIU in an April 2006 rating decision that was not appealed. In a March 2012 rating decision, the RO granted entitlement to a TDIU effective August 3, 2011. However, the Board notes that subsequent to the April 2006 rating decision and prior to the August 3, 2011 grant of TDIU, the evidence again raised the issue of entitlement to a TDIU. For example, his treating doctor sent a letter in April 2010 letter describing the Veteran as being limited in activities of daily living and not being in a position to push, pull or lift heavy objects due to his lumbar spine condition. The doctor opined that he would not be able to return to any type of work. However, on the August 2011 VA examination, there was a notation that the Veteran retired in April 2004 and in March 11, 2011. Accordingly, because a claim of TDIU has again been raised by the evidence during the appeal period, this issue should be remanded to the RO/AMC to determine whether the Veteran is entitled to a TDIU prior to August 3, 2011. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of a claim). On remand, the RO/AMC should send the Veteran appropriate VCAA notice concerning establishing entitlement to a TDIU, to include a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. This issue is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 2. After the above has been completed to the extent possible, conduct any additional development deemed necessary, to include obtaining a retrospective VA medical opinion if deemed necessary. Thereafter, adjudicate the Veteran's claim for a TDIU prior to August 3, 2011. If the benefit sought on appeal is denied, then the Veteran and his representative should be furnished with a supplemental statement of the case which includes the regulations governing TDIU claims and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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. 2011). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs