Citation Nr: 1300892 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 07-33 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to an evaluation in excess of 10 percent prior to December 10, 2007, and in excess of 20 percent from December 10, 2007 for degenerative joint disease (DJD) of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from June 1988 to July 1994. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in May 2011. This matter was originally on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In July 2010, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. As noted in the May 2011 Board action, the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a psychiatric disability 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 December 10, 2007, the Veteran's service-connected lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine to 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, or ankylosis. 2. Since December 10, 2007, the Veteran's service-connected lumbar spine disability has not been manifested by ankylosis, forward flexion of the thoracolumbar spine to 30 degrees or less. 3. The probative evidence of record does not demonstrate radiculopathy related to service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent prior to December 10, 2007, for the Veteran's service-connected lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for an evaluation in excess of 20 percent since December 10, 2007, for the Veteran's service-connected lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2012). 3. During the entire appeal period, the criteria for a separate evaluation neurological manifestations of the lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter Pursuant to the Board's May 2011 Remand, the Appeals Management Center (AMC) requested additional information from the Veteran about his 1995 psychiatric treatment in a June 2011 letter, obtained outstanding treatment records, obtained Social Security Administration (SSA) records, scheduled the Veteran for a VA examination to determine the severity of his service-connected lumbar spine disability, readjudicated the Veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's May 2011 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With respect to service connection claims, the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With respect to increased rating claims, section 5103(a) requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009) (Vazquez-Flores II); Vazquez-Flores v. Shinseki, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I). VA has met all statutory and regulatory notice and duty to assist provisions. Letters dated in October 2005, March 2006, May 2008, and June 2011 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 6 Vet. App. at 183, Dingess, 19 Vet. App. at 473, Vazquez-Flores I and II. Together, the letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence, how VA determines disability ratings and effective dates, and that he should tell VA about or give to VA that may affect how VA assigns a disability evaluation included statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Although that was not done in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ). Although in August 2012 the Veteran submitted additional evidence after the most recent supplemental statement of the case, the Veteran waived his right to AOJ review of the evidence in a submission that same month. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Veteran's service treatment records, post-service medical treatment records, and SSA records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. Moreover, during the July 2010 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the increased rating claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was accorded VA examinations in October 2005, October 2006, December 2007, and January 2012. 38 C.F.R. § 3.159(c)(4). There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough; thus, these examinations are adequate upon which to base a decision. Additionally, they address all the relevant findings required by the applicable diagnostic codes. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. The Veteran's service-connected lumbar spine DJD is rated as 10 percent disabling prior to December 10, 2007, and as 20 percent disabling since December 10, 2007, pursuant to 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5242. For lumbar spine disabilities, the following criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent ratin; Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating; Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating; and Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. General Rating Formula, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The 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. General Rating Formula, Note (2). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. General Rating Formula, Note (3). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40 , 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Evaluation prior to December 10, 2007 In order for an increased evaluation to be warranted for the Veteran's service-connected lumbar spine DJD prior to December 10, 2007, the evidence must show forward flexion of the thoracolumbar spine 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran underwent VA examination in October 2005 at which time he reported that he was being treated with a TENS unit and medication. The Veteran reported mild weakness, mild spasm, mild fatigue, mild decreased motion, and mild stiffness of the lumbar spine with occasional sciatic pain. The Veteran also reported mild, frequent, aching pain with sharp shock-like pain radiating to right leg. The Veteran denied any devices or aids and noted that he was able to walk more than 1/4 mile but less than one mile. The Veteran's weight was 328 pounds which was a gain of 20 pounds over the prior two-year period. Physical examination demonstrated normal posture and gait. There was no abnormal spinal curvatures, ankylosis, spasm, atrophy, guarding, pain with motion, tenderness, or weakness of the thoracic or lumbar sacrospinalis. The Veteran was able to flex from zero to 80 degrees, extend from zero to 20 degrees, lateral flex and rotate from zero to 25 degrees. There was additional loss of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance; however, the examiner noted that although the range of motion was reduced, this represented "normal" for the Veteran because a large accumulation of belly and torso fat interfered with full range of motion. Motor, sensory, and reflex examinations were normal. There was no Lasegue's sign. X-rays showed a slight anterolisthesis of L4-5, mild disc space narrowing L5-S1. The diagnosis was chronic low back pain with radiologic evidence of disc space narrowing at least one level. The Veteran underwent VA examination in October 2006 at which time he reported that he was treated for his lumbar spine condition with analgesics, anti-inflammatory drugs, muscle relaxants, and TENS unit. The Veteran reported fatigue, decreased motion, stiffness, weakness and spasm. The Veteran reported daily moderate, burning, aching, lumbar spine pain lasting hours and right side sciatic burning pain. The Veteran also reported severe flare-ups decreasing mobility every two to three weeks lasting hours precipitated by lifting heavy objects, climbing stairs, and bending and alleviated by heat, rest, and medication. The Veteran denied any devices or aids and noted that he was able to walk approximately one block. Physical examination showed normal posture and a waddling gait. There were no abnormal spinal curvatures, ankylosis, spasm, atrophy, guarding, pain with motion, tenderness, or weakness of the thoracic sacrospinalis. The Veteran was able to flex to 80 degrees, extend from to 30 degrees, and lateral flex and rotate to 35 degrees. There was additional loss of motion on repetitive use; however, the examiner noted that although the range of motion was reduced, this represented "normal" for the Veteran because a large accumulation of belly and torso fat interfered with full range of motion. Motor examination showed 4/5 strength with normal muscle tone and no atrophy. Sensory and reflex examinations were normal. Lasegue's sign was positive on the right. X-rays showed a very slight narrowing of the disc at L3-L4 and L5-S1. The diagnosis was having lumbar strain with residuals. Prior to December 10, 2007, the Veteran's orthopedic manifestations of his service-connected lumbar spine disability did not approach the severity contemplated for a rating higher than 10 percent. Flexion was to 80 degrees, which is in excess of 60 degrees or less. Combined range of motion of the thoracolumbar spine was to 200 and 250 degrees, which is in excess of 120 degrees. Additonally, although the Veteran provided competent and credible testimony of muscle spasms and guarding, the objective evdeience of record outweighs those findings; there was no spasm or guarding, and only at the 2006 examination was there an abnormal gait. There was no abnormal spinal curvature at any time. It is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. DeLuca, 8 Vet. App. at 206-7. The Veteran reported throughout this time period pain, weakness, spasm, stiffness. He did not use any assistive devices or aids. At the October 2005 VA examination, there was additional losso f motion due to pain, fatigue, weakness, or lack of endurance, but this was not due to his back, but due to his weight. Further, his strength and reflexes remained normal. The objective evidence indicates no spasm, atrophy, guarding, or tenderness. In October 2006, the Veteran also reported severe flare-ups decreasing mobility every two to three weeks lasting hours precipitated by lifting heavy objects, climbing stairs, and bending and alleviated by heat, rest, and medication. There was additional loss of motion on repetitive use; however, the examiner noted that although the range of motion was reduced, this represented "normal" for the Veteran due to his weight. Motor examination showed 4/5 strength with normal muscle tone and no atrophy. Sensory and reflex examinations were normal. On the whole, these findings do not represent additional functional loss not contemplated in the current rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 39-44 (2011). The Veteran retained muscle strength, and any additional loss of range of motion was unrelated. Accordingly, an evaluation in excess of 10 percent prior to December 10, 2007, for orthopedic manifestations of the Veteran's service-connected lumbar spine disability is not warranted. The Board has considered the application of other diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). But a January 2012 VA examiner determined that the Veteran's intervertebral disc syndrome was unrelated to his service-connected lumbar spine disability. Although the Veteran has been diagnosed as having mild intervertebral disc syndrome, the examiner noted that there was not enough objective data in the record to make a case of 50/50 for the Veteran's mild intervertebral disc syndrome. The examiner determined that the disability was not related to service. Evaluation since December 10, 2007 In order for an increased evaluation to be warranted since December 10, 2007, for the Veteran's service-connected lumbar spine disability , the evidence must show forward flexion of the thoracolumbar spine 30 degrees or less or ankylosis. The Veteran underwent VA examination in December 2007 at which time he reported that he was forced to resign from his position as a paramedic due to increasing pain limiting his ability to perform regular duties. The Veteran reported that he could stand approximately 20 minutes before pain began and could walk approximately 75 to 100 yards before pain became severe. The Veteran reported that he was previously requiring Hydrocodone 7.5 mg and was taking 10 mg to barely function. The Veteran described his back pain as sharp, throbbing from lower thoracic spine to lumbar area and rated 6/10 to 10/10 with aggravation. The Veteran reported that his symptoms were exacerbated and/or initiated by weight bearing activity and remaining in one position for any extended period. The examiner noted that the Veteran was attempting to get control of his pain. The Veteran reported that he treated his back pain with Hydrocodone 10 mg every four hours as needed and Methocarbamol 500 mg as needed with fair response and a side effect of constipation. The Veteran reported fatigue, decreased motion, stiffness, weakness, spasms, and pain. The Veteran reported daily severe, sharp grating, pounding lumbar spine pain lasting hours and radiating pain to upper buttocks. The Veteran also reported weekly severe flare-ups lasting one to two days precipitated by ambulation and weight lifting and alleviated by narcotic and muscle relaxer plus short rest. The Veteran reported that he used a crutch and was unable to walk for more than a few yards. Physical examination demonstrated stooped posture and in toeing gait. There was reverse lordosis and severe paravertebral spasms from L1 to S1 with and without motion. There was no muscle atrophy but muscle strength was diminished with hip flexion, knee extension, ankle dorsiflexion, and ankle flexion. Sensory examination was normal, but reflex examination showed hypoactive reflex on knee and ankle jerk. The Veteran was able to flex to 45 degrees with additional loss of motion on repetitive use of the joint to 35 degrees. The Veteran was able to extend to 20 degrees with no additional loss of motion on repetitive use. Lateral rotation to the right was to 20 degrees and to the left was to 25 degrees with no additional loss of motion on repetitive use. Lasegue's sign was positive on the right although the examiner noted that distracted straight leg raise was negative. It was noted that there was slight narrowing of the discs at L3-L4 and L5-S1 but no change from prior study of October 2006. The diagnosed was chronic low back pain, chronic back strain, degenerative joint disease, retolisthesis of lumbar spine L1 to L4, disc space narrowing of lumbar spine L3/L4 and L5/S1, scoliosis (acquired) of thoracolumbar spine (levoconvex shape). The Veteran underwent VA examination in January 2012 at which time he reported that during 2011, he fell a lot. The Veteran reported flare-ups impacting the function of his thoracolumbar and noted that he was incapacitated two weeks out of the month by back pain which is a pulsating, dull deep ache in the lower back on a pain scale of 9/10. The Veteran stated that often just getting out of the bad in the morning or walking to the bathroom could send him to his "man cave" and that at other time he could easily walk 1/4 to 1/2 mile without significant pain. Physical examination demonstrated that the Veteran was able to flex to 60 degrees with pain at 5 degrees; extend to 5 degrees with pain at five degrees, right and left lateral flex to 10 degrees with pain at 10 degrees; and right and left lateral rotation to 30 degrees or greater with pain at 10 degrees. There was no additional loss of motion on repetitive use; in fact, after three repetitions, the Veteran was able to flex to 90 degrees or greater. The examiner noted that the Veteran had excess fatigability and pain on movement after repetitive use. The examiner noted that light pinching caused pain, that there was a deep tenderness over a wide area, that on formal manual muscle testing, weakness was detected in a nonanatomic pattern, and that there was a negative Lasegue's sign when distracted. The Veteran demonstrated an abnormal gait and guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal, and there was no muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising was negative. The examiner noted that the Veteran had symptoms due to radiculopathy including mild right and moderate left lower extremity intermittent pain and moderate right and left lower extremity numbness. The Veteran, however, refused electromyography and nerve conduction studies testing. The Waddell's sign was positive. In addition, the Veteran reported that two years prior, he was "wetting" himself for a few days. The Veteran also reported using a cane regularly for back pain and unsure footing. The examiner noted that based on the subjective symptoms of severe constant pain on minimal activity; i.e., getting out of bed or walking a few yards triggers back pain that requires around-the-clock Methocarbamol, Gabapentin, Tramadol, and Lortab, it would be impossible to do any work or be function. The examiner noted, however, that based on the x-rays of the Veteran's spine, he had minimal degenerative joint disease which should not be causing as much pain or limitation of motion as described in the examination. The examiner noted that the Veteran claimed that a break in the medications triggered pain radiating to both legs and that taking the medications again relieved the pain and that pain radiated from outer leg to inner calf area all the way to the inner aspect of the toes. The examiner noted that there were no clinical findings to support radiculopathy and that descriptions of symptoms of radiculopathy were not typical for sciatica. The Veteran was diagnosed as having mild degenerative joint disease of the lumbar spine with lumbar strain. The Veteran's orthopedic manifestations of his service-connected lumbar spine disability since December 10, 2007, have not approached the severity contemplated for a rating higher than 20 percent. Forward flexion was to 45 and 60 degrees, which is in excess of 30 degrees. Additionally, there was no ankylosis, as the Veteran retained range of motion. With respect to additional functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness, although there was additional loss of flexion, motion was not limited to 30 degrees or less. The Board finds that functional loss does not warrant an increased evaluation; although there was competent and credible evidence from the Veteran of short standing and walking times and amounts, moderate to severe pain, multiple functional limitations, and flare-ups and exacerbations, and objective evidence of diminished strength, but no muscle atrophy, and spasms, this is outweighed by the other findings of record. There was objective evidence of a positive Waddell's sign. The examiner also noted, however, that based on the x-rays of the Veteran's spine, he had minimal degenerative joint disease which should not be causing as much pain or limitation of motion as described in the examination. Accordingly, an evaluation in excess of 20 percent since December 10, 2007, for orthopedic manifestations of the Veteran's service-connected lumbar spine disability is not warranted. As noted above, the Veteran's IVDS is not related to his lumbar spine disability and may not provide for an increased evaluation. Separate evaluation The Board has considered whether a higher evaluation is warranted for any neurologic symptoms evaluated separately. As noted above, in October 2005, the Veteran has complained of right leg sciatic pain. Motor, sensory, and reflex examinations, however, were normal and there was no Lasegue's sign. In October 2006, the Veteran reported right sided sciatic burning pain. Sensory and reflex examinations were normal, and Lasegue's sign was positive on the right. In December 2007, the Veteran reported radiating pain to upper buttocks. Muscle strength was diminished with hip flexion, knee extension, ankle dorsiflexion, and ankle flexion; sensory examination was normal; and reflex examination showed hypoactive reflex on knee and ankle jerk. In addition, Lasegue's sign was positive on the right although the examiner noted that distracted straight leg raise was negative. In January 2012, the examiner noted that the Veteran had symptoms due to radiculopathy including mild right and moderate left lower extremity intermittent pain and moderate right and left lower extremity numbness. Muscle strength testing and reflex and sensory examinations were normal. Straight leg raising was negative. In this case, there is competent and credible evidence of radiating pain during the entire appeal period. The objective medical evidence of record, however, does not support a separate compensable rating for neurological manifestations of the Veteran's service-connected lumbar spine disability. Although the October 2006 VA examiner noted that Lasegue's sign was positive on the right, in December 2007, although Lasegue's sign was positive on the right, the examiner noted that distracted straight leg raise was negative. In addition, the January 2012 VA examiner noted that the Veteran's testing strongly indicated malingering. The January 2012 VA examiner also noted that there were no clinical findings to support radiculopathy and that the Veteran's description of symptoms of radiculopathy were not typical for sciatica. The January 2012 VA examiner essentially noted that there was not enough objective data to make a case as to whether it was at least as likely as not that the Veteran's mild IVDS had its onset in service or was caused or aggravated by the Veteran's service-connected lumbar spine degenerative joint disease. As such, the more probative medical evidence does not indicate that the Veteran has neurological symptoms as a result of his service-connected lumbar spine disability. Extraschedular evaluation The Board is aware that an extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected lumbar spine disability presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The criteria pertaining to lumbar spine disabilities in the Rating Schedule focus on orthopedic and neurological symptoms including limitation of movement and nerve impairment. As discussed above, such symptomatology has been described by the Veteran, to include limitation of motion, functional limitations, and neurological manifestations. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. ORDER Entitlement to an evaluation in excess of 10 percent prior to December 10, 2007, and in excess of 20 percent from December 10, 2007 for degenerative joint disease (DJD) of the lumbar spine is denied. REMAND Although the Board sincerely regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. The Veteran seeks service connection for a psychiatric disability. The record indicates that the Veteran has a history of multiple psychiatric problems, mainly bipolar disorder. There are also diagnoses of posttraumatic stress disorder (PTSD), depression, anxiety, and personality disorder. A January 30, 2006, Psychiatry Note indicates that the Veteran was there for management of interesting cluster of behavioral problems. The staff psychiatrist noted that the Veteran had been diagnosed as having bipolar disorder and borderline personality disorder but noted that the Veteran's psychiatric disorder had responded more like a severe PTSD from childhood with bipolar-like symptoms and characterologic deficits. The January 2012 VA examiner noted that between 2004 and 2006, the Veteran was followed by VA psychiatrist for bipolar disorder and borderline personality disorder. The examiner noted that the Veteran was also diagnosed with PTSD from childhood and that he could not find evidence for the PTSD diagnosis although it would be consistent with known history, diagnoses. In addition, the January 2012 VA examiner noted that the Traumatic Stress subscore suggested that the Veteran had likely experienced a disturbing traumatic event in the past, an event that continued to be a source of distress and to produce recurrent episodes of anxiety. However, as the Veteran contends that he experienced a stressful event (hearing scud missiles) while overseas, and since the Veteran has diagnoses of PTSD in the claims file, it is the Board's opinion that additional development of the Veteran's claim should be undertaken. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide additional information and evidence regarding any of the claimed stressful incidents alleged. The Veteran should be as specific as possible as to the dates and circumstances of his stressors (including within a 60 day time frame, if possible). The Veteran should include information regarding his unit at the time each stressor occurred as well as the names of any individuals involved. 2. The Veteran's claims file should be reviewed and a summary prepared of all the claimed stressors capable of verification. This summary, a copy of the Veteran's DD Forms 214, and all associated service personnel documents should be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) and any other appropriate agency for verification of the alleged stressful events in service. 3. Following the completion of the above, provide the Veteran with a VA psychiatric examination to determine the nature and etiology of any psychiatric disability diagnosed, to include both PTSD and non-PTSD psychiatric disabilities. The claims file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner must elicit from the Veteran a detailed history of the alleged in-service events and the Veteran's post-service medical and psychiatric history. After a review of the entire evidence of record and mental examination of the Veteran, the examiner must render an opinion as to whether the Veteran currently has any non-PTSD psychiatric disorders. If the examiner does not render any non-PTSD psychiatric diagnoses, or does not render diagnoses of bipolar disorder, anxiety, and depression, an explanation must be provided, to include a discussion of the previous diagnoses of these psychiatric disorders in the claims file. Regarding each currently diagnosed non-PTSD psychiatric disorder, the examiner must provide an opinion as to whether that disorder is more or less likely as not related to active military service. The examiner must also indicate which symptoms are related solely to the non-PTSD psychiatric disorders and which are related to the Veteran's PTSD. If no such distinction can be made, the examiner must so state and provide a supporting explanation. A complete rationale for any opinion expressed must be included in the examination report. If an opinion cannot be provided without resort to speculation, the examiner must provide supporting rationale for that statement. Regarding PTSD, the examiner must express an opinion as to whether the Veteran meets the criteria for PTSD contained in DSM-IV. If the examiner finds that the Veteran does not meet the criteria, then the prior diagnoses of PTSD must expressly be commented on. If the examiner finds that the Veteran meets such criteria, the examiner must provide an opinion whether PTSD can be related to the stressor or stressors 1) established as having occurred during active service and 2) claimed by the Veteran. Additionally, the examiner should provide an opinion as to whether the Veteran's claimed stressors are adequate to support a diagnosis of PTSD based on a fear of hostile military or terrorist activity during service, and whether his symptoms are related to the claimed stressors. In doing so, the examiner should acknowledge all of the Veteran's lay statements regarding the claimed stressors. 4. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. 2012). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs