Citation Nr: 1301637 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-11 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to a disability rating for endometriosis in excess of 30 percent prior to June 30, 2011, and a rating in excess of 50 percent from that date forward. 3. Entitlement to a disability rating for low back strain in excess of 10 percent. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served in the California Army National Guard from January 1990 to January 1995, including active duty from January 3, 1991 to November 18, 1991, and a verified period of active duty for training (ACDUTRA) from February 6, 1990, to June 29, 1990, as well as additional unverified active and inactive service. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These three issues were previously before the Board in February 2009 and May 2011. In February 2009, the Board determined that the issues of an increased rating for the low back and for endometriosis, as well as service connection for a skin disorder, remained pending from a December 1997 rating decision, which the Board found was perfected through a January 1999 substantive appeal (VA Form 9). The Board previously remanded these issues for further development and consideration by the agency of original jurisdiction (AOJ). At those times, the Veteran's endometriosis was rated as 30 percent disabling. In a September 2012 rating decision, the AOJ granted a rating of 50 percent for endometriosis for the period beginning June 30, 2011. Although this is the maximum schedular rating available for endometriosis, the Veteran's representative asserts that an extraschedular rating is appropriate. Further, even if a rating is increased during the pendency of an appeal, the Veteran is presumed to be seeking the highest possible rating, unless she expressly indicates otherwise. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the issues on appeal are as stated on the first page of this decision. The Veteran previously testified before a Veterans Law Judge as to issues that are not currently on appeal, and the Board subsequently sought clarification as to whether she desires a Board hearing as to the issues remaining on appeal. In March 2011, the Veteran's representative responded that the Veteran did not desire another hearing. As such, due process has been satisfied with respect to a Board hearing. As discussed below, the evidence of record is now sufficient for a fair adjudication of the Veteran's claims for a higher rating for low back strain and endometriosis. However, further development is needed for the service connection claim. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. There are currently no pertinent records in the paperless file that are not also in the paper claims file. However, any further development or adjudication of this matter should take into account this paperless claims file. Accordingly, the issue of service connection for a skin disorder 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 June 30, 2011, the Veteran's endometriosis manifested by symptoms not controlled by treatment including pelvic pain, intermittent heavy bleeding, and intermittent irregular bleeding; with no lesions involving bowel or bladder confirmed by laparoscopy, and no associated bowel or bladder symptoms 2. For the period beginning June 30, 2011, the Veteran has been assigned the maximum schedular rating for endometriosis, and there have not been frequent hospitalizations or marked interference with employment due to endometriosis. 3. Resolving all reasonable doubt in the Veteran's favor, there has been severe lumbosacral strain with marked limitation of forward bending (or flexion) when considering restriction due to pain during flare-ups, as well as decreased lateral motion (lateral flexion and rotation), and x-ray evidence of disc space narrowing throughout the period on appeal; but with no evidence of ankylosis or associated neurological abnormality. CONCLUSIONS OF LAW 1. The criteria for a rating for endometriosis in excess of 30 percent for the period prior to June 30, 2011, and in excess of 50 percent for the period thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.116, Diagnostic Code 7629 (2012). 2. The criteria for a rating of 40 percent, but no higher, for low back strain, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (1997 & 2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Here, the Veteran seeks a higher rating for her already service-connected low back strain and endometriosis. She was notified prior to the initial December 1997 rating decision of the evidence and information necessary to substantiate an increased rating claim, as well as the responsibilities of the Veteran and VA in obtaining such evidence. In June 2008, the Veteran was further advised of the evidence and information necessary to establish a disability rating and effective date, in accordance with Dingess/Hartman. Moreover, the Veteran has been notified several times of the relevant rating criteria, including during decisional documents such as the December 1998 statement of the case and supplemental statements of the case, including in August 2012. Further, the Veteran has not alleged any prejudice from any possible notice defects. As such, adequate notice was given. With regard to the duty to assist, all identified, available treatment records have been obtained and considered. As directed in the prior remand, the AOJ requested the Veteran to identify any outstanding post-service treatment concerning her claimed skin disorder. All identified, pertinent records have now been obtained, including service treatment records, Naval Hospital records, and VA treatment records dated through August 2012. As also directed in the prior remand, records concerning the Veteran's claim for disability benefits from the Social Security Administration (SSA) were obtained and considered. Although the Veteran's full dates of active service were not obtained, this information is not necessary to adjudicate the increased rating claims, as service connection has already been granted for these conditions and the primary focus is the current level of disability. As directed in the prior remand, the Veteran was afforded a VA examination in June 2011 to determine the current severity of her service-connected low back strain and endometriosis. There is no argument or indication that the examination report is inadequate for rating purposes for either condition. In particular, as directed in the remand, the examiner commented upon the frequency of treatment for pelvic pain or heavy or irregular bleeding, as well as any bladder and bowel symptoms and lesions. The examiner measured and recorded all symptoms for the Veteran's endometriosis and low back strain, including functional impairment. Further, there is no indication that the Veteran's disability has increased in severity since the last medical evidence of record, which includes VA treatment records dated through August 2012. As such, the medical evidence is sufficient for these claims. For the foregoing reasons, the Board finds that the AOJ substantially complied with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Further, another remand as to the increased rating claims would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on the merits at this time. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Endometriosis The Veteran has been in receipt of a 30 percent rating for endometriosis, post-operative pelvic adhesions, post-operative polycystic ovaries, metromenorrhagia, effective since May 1995. Although her current claim for an increased rating for such disability was initially denied, a maximum schedular rating of 50 percent was subsequently granted for such disability, effective as of June 30, 2011. The Veteran's representative asserts that an extraschedular rating is now warranted, as her symptomatology is not fully encompassed by the schedular rating criteria. Gynecological conditions are rated under 38 C.F.R. § 4.116, and endometriosis is specifically addressed under Diagnostic Code (DC) 7629. A rating of 30 percent is assigned for such disability where there is pelvic pain or heavy or irregular bleeding not controlled by treatment. A maximum 50 percent rating is assigned for lesions involving bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. In this case, the lay and medical evidence of record reflects pelvic pain and cramping, with more severe pain including pulsating or throbbing sensation during the menstrual cycle, throughout the period on appeal. The Veteran also had heavy and irregular bleeding at several times, with irregular menses and occasional bleeding between menstrual periods. See, e.g., VA treatment records dated in September 1996, May 1998, March 2002 (noting heavy bleeding and spotting between periods); but compare VA treatment records dated in July 2004, August 2006, July 2009 (noting regular menses and no intermenstrual bleeding); June 2011 VA examination report (continued severe cramps especially around menses, but with light bleeding and regular cycle). These symptoms persisted despite the use of various medications in the past, although the Veteran was not on any medications for this condition at the time of the June 2011 VA examination. There is no evidence of lesions involving the bowel or bladder confirmed by laparoscopy during the relevant period, or of bladder or bowel symptoms due to endometriosis. The Veteran had surgeries in 1991 and 1993, prior to the period on appeal, to remove pelvic adhesions, and she was noted to have no lesions for several years after those procedures. See, e.g., July 1997 treatment record (noting that pelvic adhesions were gone by the second laparotomy in 1993, no masses palpated on exam, vaginal and rectal exam negative). While there are subsequent indications of possible cyst or adhesion, they are not shown to be affecting the bowel or bladder or confirmed by laparoscopy, and the documented bowel impairment including constipation and diarrhea is not shown to be related to the Veteran's endometriosis. In this regard, a March 2002 VA provider noted that there had been some concern about endometriosis and possibly some adhesions contributing to an ileus type of symptoms (or intestinal obstruction), but this had not been confirmed. The Board observes that an August 2004 pelvic sonogram report noted a complex lesion in the right ovary with differential diagnosis including endometrioma and hemorrhagic or complex cyst. Then, in September 2004, a VA provider assessed a history of endometriosis and complex right adnexal cysts, stating that it was most likely a functional cyst and not an endometrioma, which typically appears simple on a sonogram. At that time, the Veteran was also noted to have diarrhea and irritable bowel syndrome (IBS), with a possible element of lactose intolerance. The Veteran had a repeat pelvic ultrasound in November 2004, which was noted to have no significant change since August 2004, and to be asymptomatic and benign, with no resulting surgery (or laparoscopy). In August 2006, a VA provider noted that a March 2005 pelvic sonogram showed no acute pelvic pathology, and specifically, the previously noted right ovarian cyst was not present. There was a normal follicular cyst on the left, and the uterus was normal. The provider stated that the Veteran's uterine mobility argued against significant pelvic adhesive disease. Similarly, in a December 2010 VA gynecological examination pertaining to the Veteran's diarrhea and IBS diagnosis, the examiner stated that endometriosis can lead to small bowel adhesions that can be a source of pain, but ordinarily adhesions would not cause intermittent diarrhea in the absence of obstruction. The examiner stated that the Veteran's IBS was more likely due to her PTSD. Further, in a December 2010 VA intestinal examination, the Veteran's alternating diarrhea and constipation were diagnosed as IBS. While the June 30, 2011 VA examiner noted that the Veteran had bowel symptoms (diarrhea) due to endometriosis, that examiner does not appear to have considered the evidence concerning IBS. As summarized above, the medical evidence of record indicates that the Veteran's endometriosis does not affect her bowels or bladder but, rather, her diarrhea and constipation are due to IBS. To the extent that the Veteran believes otherwise, she is not competent to offer such an opinion, as such question requires specialized training or knowledge due to the complex nature of the gynecological and gastrointestinal symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Moreover, the Veteran has been granted separate service connection for IBS based on such symptoms, as well as abdominal pain. Therefore, to award a higher rating for endometriosis based on the same symptoms would be impermissible pyramiding. In summary, the Veteran has had persistent pelvic pain (sometimes more severe than others), as well as heavy or irregular bleeding at times, which has not been controlled by treatment. These symptoms support a rating of 30 percent for endometriosis. However, and in particular for the period prior to June 30, 2011, the evidence does not also establish lesions involving the bowel or bladder confirmed by laparoscopy, and associated bowel or bladder symptoms, as required for the next higher rating of 50 percent for endometriosis. See 38 C.F.R. § 4.116, DC 7629. The Veteran has already been assigned the maximum rating for endometriosis for the period beginning June 30, 2011, and the such rating will not be disturbed. Id. As the Veteran is status post-operative polycystic ovaries and pelvic adhesions, the Board has whether a separate or higher rating is warranted pursuant to the General Rating Formula for Disease, Injury, or Adhesions of the Female Productive Organs, which contemplates DCs 7610 through 7615. However, that formula provides for a maximum rating of 30 percent where symptoms are not controlled by continuous treatment. The Veteran has been in receipt of at least a 30 percent rating for the entire period on appeal, and a separate rating on this basis would constitute impermissible pyramiding. Further, there is no indication of removal or atrophy of either ovary or the uterus, or of any other condition of the vagina, uterus, or ovaries so as to warrant a rating under DCs 7617 through 7625. Additionally, consideration of entitlement to special monthly compensation based on loss of use of reproductive organ is not raised. See 38 C.F.R. §§ 3.350, 4.116, DCs 7617 to 7620, and Note 2. All potentially applicable diagnostic codes have been considered, and there is no basis upon which to assign an evaluation in excess of the currently assigned ratings for the Veteran's endometriosis. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). While the AOJ assigned staged ratings based on a determination that such disability was manifested by symptomatology that warranted different ratings during distinct time periods, i.e., before June 30, 2011, and from that point forward, no further staging is appropriate. Rather, the manifestations of endometriosis were relatively stable during these periods, and any increase is not sufficient to warrant a higher rating for the reasons discussed above. See Hart, 21 Vet. App. at 509-10 . The Board has considered whether a higher rating is warranted for the Veteran's endometriosis on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1), as argued by the Veteran's representative. An extra-schedular rating is warranted under such provision if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, the manifestations of the Veteran's endometriosis are fully contemplated by the schedular rating criteria. As discussed above, she has complained of pelvic pain or cramping, as well as heavy bleeding, irregular menses, and spotting between menses at times. The Veteran has also complained of constipation and diarrhea, which is compensated under the separately service-connected IBS; however, the Board notes that these symptoms would also have been contemplated under the rating criteria for endometriosis. Accordingly, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate her disability picture. It is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. See id. Moreover, there have been no relevant hospitalizations during the appeal. While the Veteran has reported missing work due to pain and other symptoms of endometriosis, the schedular percentages are intended to account for considerable interference with employment. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Veteran's interference with work due to endometriosis is contemplated by the current ratings. As such, referral for extra-schedular consideration is not warranted. See Thun, 22 Vet. App. at 115-16. Low back strain As noted above, the Board previously found that the Veteran's claim for a rating in excess of 10 percent for her service-connected low back strain has remained pending since her appeal from a 1997 rating decision on an April 1997 claim. The schedular criteria for rating spinal disabilities have been amended twice during the course of this appeal. First, the criteria pertaining to intervertebral disc syndrome (IVDS) were amended effective September 23, 2002. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). Then, the criteria pertaining to all spinal disorders were amended effective September 26, 2003. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). As the Veteran's claim was pending at the time of both regulatory amendments, he is entitled to application of the criteria that are the most favorable to her claim. However, an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; see also Karnas v. Derwinski, 1 Vet. App. 308, 311-13 (1991). As such, the Board will consider whether the Veteran is entitled to a higher rating for her low back disability under either the current or the former regulations. However, as the Board is only service-connected for lumbar or low back strain, not for IVDS (or degenerative disc disease), only the regulations pertaining to general spinal disorders are for consideration. If the Veteran believes that she has IVDS or lumbar degenerative disc disease due to service, she may file a claim at the local RO. The Board notes that the AOJ has not addressed the prior versions of the spinal rating criteria in considering the Veteran's claim since the February 2009 remand. However, such regulations were considered in the previous adjudications of the claim for an increased rating for low back strain, such as in the December 1998 statement of the case. Further, VA regulations now provide that a case need not be remanded back to the AOJ for consideration of laws or regulations. See 38 C.F.R. § 19.9 (2012). Moreover, neither the Veteran nor her representative have argued that there is any prejudice from the AOJ not considering the pre-2003 versions of the spinal rating criteria in the more recent adjudications of her claim, and no prejudice is indicated. As such, no remand is necessary, and the Board may consider both the current and former regulations for the low back strain. Prior to September 26, 2003, with the exception of IVDS, disabilities of the spine were rated on the basis of residuals of vertebral fracture (DC 5285); complete bony fixation (ankylosis) of the entire spine or of the cervical, dorsal, or lumbar spine (DCs 5286-5289); limitation of motion of the cervical, dorsal, or lumbar spine (DCs 5290-5292); sacroiliac injury and weakness (DC 5294); and lumbosacral strain (DC 5295). See 38 C.F.R. § 4.71a (1997 & 2003). In this case, there is no evidence of residuals of a vertebral fracture or of sacroiliac weakness or injury. Additionally, as the Veteran is able to move her lumbar spine, the evidence does not reflect ankylosis of the lumbar spine or the entire spine. While there is some evidence of cervical spine symptoms, she is not service-connected for a cervical spine disability, nor is that disability on appeal. As such, further discussion of the prior DCs 5285 through 5289 and DC 5294 is unnecessary. Under DC 5292, slight limitation of motion of the lumbar spine warranted a 10 percent rating, moderate limitation of motion of the lumbar spine warranted a 20 percent rating, and severe limitation of motion of the lumbar spine warranted a 40 percent rating. 38 C.F.R. § 4.71a, DC 5292 (1997 & 2003). Under DC 5295, lumbosacral strain with characteristic pain on motion was assigned a 10 percent rating. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, warranted a 20 percent rating. Severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, was rated at 40 percent. 38 C.F.R. § 4.71a, DC 5295 (1997 & 2003). The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the current regulations, effective since September 26, 2003, all disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. This includes lumbosacral strain under DC 5237. Under DC 5243, IVDS may be rated, in the alternative, using a formula based on frequency of incapacitating episodes. See 38 C.F.R. § 4.71a (2012). As noted above, the Veteran is service-connected for low back (or lumbar) strain, and not for IVDS (such as degenerative disc disease) or other spinal disability. The General Rating Formula provides that a 10 percent rating will be assigned where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees; 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 evaluation will be assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine or the entire spine warrants a rating of 50 or 100 percent, respectively. 38 C.F.R. § 4.71a, General Rating Formula (2012). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2); see also Plate V. Under the General Rating Formula, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Mitchell, 25 Vet. App. 32. In this case, as noted in the initial unfavorable rating decision, the Veteran's claim for an increased rating for the low back was received in April 1997. Throughout the period on appeal, she has complained of pain or achiness, intermittent muscle spasms, and reduced or painful motion of the low back, with increased pain during flare-ups. This is generally consistent with the medical evidence. The Board notes that the Veteran is also in receipt of service-connected for fibromyalgia, rated as 10 percent disabling effective since April 2004, and 20 percent disabling effective since November 2008. As such, care must be taken to avoid awarding additional compensation for low back strain based on the same symptoms of fibromyalgia, as this would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. In this regard, the Veteran's complaints of general spasms and achiness, including in the low back, were noted to be related to her fibromyalgia or somatoform disorder on several occasions. See, e.g., VA treatment records dated in July and August 1996, December 1998, July 2006; August 2000 VA examination report. However, there are also several instances of low back symptoms attributed to low back strain, as discussed below, which warrants a separate disability rating. The medical evidence reflects intermittent complaints of muscle spasm, which were confirmed by objective evidence, with increased pain associated with low back strain. See, e.g., VA records dated in May 1996 (complaints of spasm and pain in the low back since a strenuous workout 5 days earlier, objective tenderness and rigidity of the muscles); November 1998 (complaints of severe pain after bowling, objective moderate spasm in the lumbar spine); January 2002 (complaints of severe low back pain localized with spasms, objective moderate paraspinal tenderness with spasm); July 2005 (complaints of intermittent sharp right mid to lower back pains that become worse with bending over and make her unable to move, objective moderate spasms of the right paraspinal muscles with pain worse with bending over); August 2006 (complaints of pain greatly increased over the past 2-3 days after lifting her dog, objective moderate spasms of the paraspinal muscles of the mid to low back); July 2010, October 2010, and January 2011 (noting recent exacerbation of pain, objective moderate spasms of the low back); June 2011 VA examination report (reporting frequent spasms of the back, described as severe flare-ups on a weekly basis for hours, progressively worse since onset, medications included one for severe muscle spasms to use at bed time; objective spasm, guarding, and pain with motion bilaterally, and tenderness on the left). Range of motion measurements have generally shown forward flexion of the lumbar spine to at least 70 degrees, and right and left lateral flexion and rotation to at least 20 degrees, with combined range of motion of at least 200 degrees. See, e.g., VA record dated in October 1996 (full range of motion); October 1997 VA examination report (85 degrees of forward flexion, 20 degrees of extension, 20 degrees of right and left flexion, and 50 degrees of right and left rotation, or 245 degrees combined); July 1998 SSA disability report (full range of motion); August 2000 VA examination report (forward flexion to 80 degrees, backward extension to 15 degrees, right and left lateral flexion to 28 degrees, and right and left lateral rotation to 25 degrees, or 201 degrees combined); June 2011 VA examination report (forward flexion to 70 degrees, extension to 20 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 30, or 200 degrees combined; with no objective pain on range of motion, but objective pain after repetitive motion, with no additional limitation after repetition). However, in a July 7, 2010 VA treatment record, the Veteran had severely restricted motion during a flare-up due to pain. At that time, she complained of sharp pain in the low back when she tried to lift her 50-60 pound dog. There were objective moderate spasms of the paralumbar muscles, with reduced range of motion due to pain. Flexion was to 30 degrees and extension was to 0 degrees. The assessment was chronic recurrent low back strain and pain with recent exacerbation. There are also consistent notations of accentuated lumbar curve or lumbar lordosis, which was noted to be marked when standing upright in an August 2000 VA examination. Nevertheless, despite the abnormal curvature, the Veteran had only mild tenderness of the lumbar paraspinal muscles in October 1996. Similarly, in a May 1996 record, a VA provider recorded that she appeared to sit, walk, and gesture comfortably without visible bracing or guarding. Further, the June 2011 examiner stated that the Veteran's noted muscle spasm, guarding, and pain were not severe enough to be responsible for her abnormal spinal contour of lumbar lordosis. As summarized above, the Veteran's reports of muscle spasm and increased pain during flare-ups are fairly consistent, and moderate spasm was objectively found during such flare-ups, throughout the appeal. As such, the Board resolves all reasonable doubt in the Veteran's favor and finds that the July 2010 measurement of the severely reduced range of motion reflects the degree of measurement during flare-ups throughout the appeal. Per DeLuca and Mitchell, this is sufficient to show the Veteran's functional impairment and limitation of motion for rating purposes. Applying the former regulations, and resolving all reasonable doubt in the Veteran's favor, the evidence warrants a 40 percent rating throughout the period on appeal. Specifically, there is severe lumbosacral strain with marked limitation of forward bending (or flexion) when considering restriction due to pain during flare-ups as described above, and as required by DeLuca and Mitchell. There is also decreased lateral motion (lateral flexion and rotation). Although there is no clear diagnosis of osteoarthritis, x-rays conducted in October 1998 were noted to show minimal disc space narrowing at L5-S1. See 38 C.F.R. § 4.71a, DC 5295 (1997 & 2003). The Board notes that severe limitation of motion of the lumbar spine would also be assigned a maximum 40 percent rating under the former regulations, but only one rating may be assigned. See 38 C.F.R. § 4.71a, DC 5292 (1997 & 2003). The Board has considered whether a higher rating would be warranted under the current regulations for the period beginning September 26, 2003, when such regulations took effect. However, when considering the limitation of forward flexion to 30 degrees during frequent flare-ups, as required by DeLuca and Mitchell, the evidence also warrants a 40 percent rating under the General Rating Formula. See 38 C.F.R. § 4.71a, DC 5237 (2012). To warrant a higher rating of 50 or 100 percent, there must be ankylosis, which is not shown in this case. See id. The Board notes that there is also evidence of intermittent pain radiating from the Veteran's low back to her lower extremities; however, this is specifically contemplated under the ratings assigned under the General Rating Formula, so it does not warrant a separate rating. See 38 C.F.R. § 4.71a. There evidence does not establish objective neurological abnormality associated with the low back disability. A higher or separate rating is also not warranted for any such symptoms under the prior regulations. While there are some notations of lumbar disc disease, there are subsequent diagnoses of low back strain and x-rays, MRIs, and CT scans of the lumbar spine were generally interpreted as negative. Instead, there has been evidence of disc disease or herniation in the thoracic spine, which is not service-connected. See, e.g., September 2003 VA treatment record (noting that a May 2000 MRI of the lumbar spine was normal, while the thoracic spine showed herniated nucleus pulposus). Moreover, only low back strain is currently service-connected. The Board has considered all possibly applicable diagnostic codes and finds no basis to assign an evaluation in excess of the rating assigned herein for low back strain under the current or former regulations. See Schafrath, 1 Vet. App. at 593. Although a higher rating has been applied for the entire appeal, staged ratings are not appropriate, as the symptoms were relatively stable, and any increases in severity did not rise to the level to warrant a higher rating. See Hart, 21 Vet. App. at 509-10. Additionally, referral for extraschedular consideration under 38 C.F.R. § 3.321(b) is unnecessary. Rather, as discussed above, the manifestations of the Veteran's service-connected low back strain are pain, painful and limited motion, and muscle spasms, with occasional radiating pain. There is no indication of any bowel or bladder impairment, or of any other objective neurological impairment, related to the low back strain. If the Veteran wishes to be compensated for any possible lumbar degenerative disc disease or IVDS, she may file a service connection claim at the local RO. Her low back strain symptomatology is fully contemplated by the schedular criteria. Accordingly, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate her disability picture. Moreover, there have been no relevant hospitalizations during the appeal. To the extent that the Veteran's low back manifestations have resulted in time lost from work, such interference is contemplated by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not warranted. See Thun, 22 Vet. App. at 115-16. General considerations The Veteran was previously granted a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) effective from 1993 through November 2008, and she has been in a receipt of a 100 percent combined schedular disability rating since that time. A TDIU rating is another avenue for a total disability rating when 100 percent rating is not warranted on a schedular basis. As such, no further discussion of a TDIU is necessary at this time. Finally, the Board has considered the applicability of the benefit of the doubt rule. The Veteran has been granted a higher rating for low back strain based on such doctrine. However, the preponderance of the evidence is against a rating in excess of 40 percent for such disability, or a rating in excess of 30 and 50 percent for endometriosis for the respective periods. The benefit of the doubt doctrine does not apply, and the Veteran's claims must be denied in this regard. 38 C.F.R. § 4.3. ORDER A disability rating for endometriosis in excess of 30 percent prior to June 30, 2011, and in excess of 50 percent from that date forward, is denied. A disability rating for low back strain of 40 percent, but no higher, is granted, subject to the controlling laws concerning monetary payment. REMAND Further development is necessary as to the Veteran's service connection claim for a skin disorder. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's complete personnel records and dates of ACDUTRA service have been determined to be unavailable. See August 2011 notice to Veteran and September 2011 formal finding of unavailability. However, there is verification of her reported period of ACDUTRA from February 1990 to June 1990, as well as her period of active duty service in the Persian Gulf from January 1991 to November 1991. She received treatment for skin complaints as summarized below, and all pertinent service treatment records from 1990 through 1995 appear to be of record. As noted in the prior remand, post-service VA medical records reflect treatment for multiple skin disturbances, including recurrent cysts, non-specific skin eruptions, and tinea pedis. See also, e.g., April 2011 problem list (including dermatitis, folliculitis, acne, allergic urticaria, epidermal cyst, and pilonidal cyst without mention of abscess). The Veteran's records prior to service include treatment for atopic dermatitis in May 1977, pruritic rash in October 1977, and acne and probable insect bites in June 1982. The Veteran's service treatment records indicate that she presented with atopic dermatitis in May 1990, a rash on her left neck in March 1991, and a swollen face and itchy throat in August 1991. The Veteran was afforded a VA skin examination in June 2011. She reported cysts in various locations (including the chin, underarms, back of the neck at the hairline, and between the legs), which she described as intermittent with symptoms of itching, thickening and darkening of the skin at the sides of the neck. The Veteran further reported chemical exposure in the Persian Gulf War in 1991, and stated that she believes these problems started around the time of such service and that they seem to be associated with menses. She used various cream and lotions to treat the conditions when present. Clinical examination showed various scars to the axillary regions (underarms) and groin area, as well as some active cyst formation in both axillae that the examiner stated was consistent with folliculitis. The examiner also noted minimal acne with mild scarring on the Veteran's face. There was no evidence of abnormal rash findings on the neck at the time of examination. The examiner noted the documented complaints, treatment, and diagnoses for skin conditions before, during, and after the Veteran's military service. These included complaints in May 1990 during a verified period of ACDUTRA, as well as in March 1991 during active duty service in the Persian Gulf. The examiner opined that the current diagnosis was folliculitis, and stated that the Veteran claimed to have another rash on the neck area that was not present during the examination and, therefore, a diagnosis for any such condition could not be provided. The examiner acknowledged the Veteran's complaints of intermittent rash on the neck and documented treatment for a neck rash during service, but stated that there was no evidence of a rash on the neck during the examination. As such, the examiner stated that she could not diagnose the reported rash on the neck, and also opined that there was no current neck rash that has been present continuously since active service. However, when there is a history of remission and recurrence of a condition, VA's duty to assist encompasses the obligation to evaluate a condition during an active, rather than inactive, phase. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (concluding that examination during a remission phase did not accurately reflect the elements of a disability that caused the veteran to miss three to four months of work at a time); but cf. Voerth v. West, 13 Vet. App. 117, 122-23 (1999) (holding that a condition that became inflamed approximately twice a year for a few days did not require examination during a flare-up). Additionally, the examiner does not appear to have addressed the etiology of the Veteran's diagnosed folliculitis. Rather, the examiner noted the pre-service treatment for scabies infection and a hive-like rash diagnosed as atopic dermatitis, and stated that there was no evidence to show that these conditions were aggravated during active service. However, there was no discussion of the etiology of the currently diagnosed folliculitis. The examiner also did not respond to the previously asked question of whether any current skin symptoms represent undiagnosed illness or medically unexplained illness, as contemplated by 38 C.F.R. § 3.317 (concerning service connection based on Persian Gulf service). As such, a new examination is necessary concerning the claimed skin disorder, and it should be scheduled during an episode of flare-up of the neck rash if possible. In this regard, as noted in Ardison, supra, skin disorders are frequently subject to remission and recurrence. Therefore, the lack of symptoms at the time of a VA examination does not preclude service connection. If an examination cannot be scheduled during a period of flare-up, the VA examiner should offer an opinion as to whether the Veteran has a recurrent chronic skin disorder, to include neck rash, as well as the most likely diagnosis for such condition. The examiner should also provide any etiological opinion as to each currently diagnosed skin disorder. The Board notes that the last treatment records in the claims file (including in Virtual VA) are dated in August 2012. Any treatment records since that time should also be obtained, and associated with the claims file before the examination. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any VA treatment records dated from August 2012 forward. If the Veteran identifies and provides the necessary authorization for VA to obtain any outstanding non-VA records concerning a skin disorder, reasonable efforts should also be made to obtain such records. The Veteran should be notified and allowed an opportunity to provide any records that cannot be obtained. All records received must be associated with the claims file. 2. After completing the above-described development, schedule the Veteran for a VA examination to determine the nature and etiology of any current skin disorder. To the extent possible, the examination should be scheduled during a period of flare-up of the reported neck rash. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner should respond to the following: NOTE: In responding to each question, all lay and medical evidence should be considered. The examiner should be advised that the lack of documented medical treatment alone, during service or otherwise, cannot be a basis for rejecting the Veteran's reports of onset or timing of symptoms or treatment. A complete rationale should be provided for each opinion. If an opinion cannot be offered without resorting to mere speculation, the examiner should so indicate, and should explain why a non-speculative opinion cannot be offered. (a) Identify all currently diagnosable skin disorders, including but not limited to folliculitis or a neck rash. In this regard, if there is no clinical evidence of a claimed disorder at the time of the examination, to include neck rash, the examiner should offer an opinion as to whether the Veteran has a recurrent chronic skin disorder with intermittent symptoms, as well as the most likely diagnosis for any such disorder, based on the Veteran's reported history and other evidence of record. (b) For each currently diagnosed skin disorder, please respond to the following: (1) Did any currently diagnosed skin disorder, including but not limited to folliculitis or neck rash, clearly and unmistakeably preexist the Veteran's entry into active duty in January 1991? (2) If so, was the preexisting disorder clearly and unmistakeably aggravated as a result of such active duty service? Or, was any increase in severity due to the natural progression of the disorder? (3) If any current skin disorder did not preexist the Veteran's active duty in January 1991, was such condition at least as likely as not (probably of 50 percent or more) incurred as a result of any active service, to include the period of ACDUTRA from February 1990 to June 1990 and the period of active duty from January 1991 to November 1991? (4) Comment on whether any current skin symptoms are not diagnosable but, rather, represent an undiagnosed illness or medically unexplained illness. 3. The AOJ should review the examination report and ensure that the remand directives have been satisfied and a full rationale has been provided for each opinion. If the report is inadequate, the case should be returned to the examiner for clarification as appropriate. 4. After completing any further development as may be indicated by any response received upon remand, readjudicate the claim. All lay and medical evidence of record, as well as all raised theories of service connection, should be addressed. If the claim remains denied, issue a supplemental statement of the case to the Veteran and her representative, which addresses all relevant law and all evidence associated with the claims file since the last statement of the case. Allow an appropriate period of time for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this REMAND is to obtain information and/or evidence that may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655 (2012), failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs