Citation Nr: 1303155 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-10 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable disability rating for recurrent vaginitis. 2. Entitlement to an initial disability rating for lumbar strain in excess of 10 percent prior to September 27, 2011 and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1976 to April 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO granted service connection for recurrent vaginitis and lumbar strain, claimed as back condition, L5-S1, both at a noncompensable disability rating (0 percent), effective January 2, 2008. In a July 2011 decision, the Board, in pertinent part, remanded the claims for additional development and adjudicative action. In an August 2012 rating decision, the RO increased the initial noncompensable evaluation for lumbar strain to 10 percent disabling, effective January 2, 2008 and to 20 percent disabling, effective September 27, 2011. The Veteran was advised of the August 2012 rating decision but did not express agreement with the decision or withdraw the appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the assigned 10 percent and 20 percent disability ratings are not the maximum benefits available for the service-connected lumbar strain, this appeal continues for the entire initial rating period. The case has been returned to the Board for further appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. For the entire initial rating period, the service-connected recurrent vaginitis more nearly approximates a manifestation of symptoms that require continuous treatment. 3. Prior to September 27, 2011, the service-connected lumbar strain more nearly approximated a manifestation of painful motion, spasm and straightening of the spinal curve. 4. The service-connected lumbar strain more nearly approximates a manifestation of guarding severe enough to result in an abnormal spinal contour. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial compensable disability rating of 10 percent, but no higher, for recurrent vaginitis have been met for the entire initial rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.116, Diagnostic Code 7611 (2012). 2. Prior to September 27, 2011 lumbar strain was 20 percent disabling. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). 3. The criteria for an initial disability rating for lumbar strain in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In addition, the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, a February 2008 letter included the type of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. The Board finds that the VCAA notice requirements have been satisfied by the February 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show she had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf, VA informed her it had to obtain any records held by any federal agency. This letter also informed her that on her behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the RO told the Veteran that she could obtain private records herself and submit them to VA. The claims on appeal arise from the Veteran's disagreement with the initial noncompensable disability ratings assigned after the grants of service connection. The courts have held, and VA's General Counsel has interpreted that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-03 (separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). See also 38 C.F.R. § 3.159(b)(3)(i) (there is no duty to provide VCAA notice upon receipt of a notice of disagreement). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claims on appeal, the evidence of record includes the Veteran's VA outpatient treatment records, statements from the Veteran, and VA examination reports dated April 2008, May 2008, and September 2011. Pursuant to the Board's July 2011 remand instructions, the RO arranged for VA thoracolumbar and gynecological examinations in September 2011. The examination reports reflect that the examiners considered the evidence of record and the reported history of the Veteran, conducted thorough examinations of the Veteran, noting all findings necessary for proper adjudication of the matter, and provided a rationale for the opinions offered. Hence, the Board concludes that the September 2011 examinations are probative, adequate, and substantially complied with the July 2011 remand instructions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). The RO also obtained and associated with the claims file the Veteran's VA outpatient treatment records from February 2010 to October 2011. VA's duty to assist is met. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Disability Rating Legal Criteria Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, 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 (2012). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Recurrent Vaginitis In a March 2010 statement, the Veteran asserted that her service-connected recurrent vaginitis disability rating should be rated at 30 percent since medication cannot stop the ongoing infection, fungal, and yeast issue and medication only temporarily keeps the condition calmed down. Pursuant to the rating criteria for gynecological conditions, specifically disease or injury of the vagina, the service-connected recurrent vaginitis has been initially rated as noncompensable (0 percent) under Diagnostic Code 7611, effective January 2, 2008. See 38 C.F.R. § 4.116 (2012). Diagnostic Code 7615 provides that the general rating formula for disease, injury, or adhesions of female reproductive organs (diagnostic codes 7610 through 7615) warrants a noncompensable evaluation for symptoms that do not require continuous treatment, 10 percent disability rating for symptoms that require continuous treatment, and a 30 percent disability rating for symptoms not controlled by continuous treatment. Id. After a full review of the record, the Board finds that, from the date of the Veteran's initial claim on appeal in January 2008, the service-connected recurrent vaginitis more nearly approximate a manifestation of symptoms that require continuous treatment, thus meeting the criteria for an initial compensable evaluation of 10 percent under Diagnostic Code 7611 for the entire rating period on appeal. See 38 C.F.R. § 4.116. The Board has considered the Veteran's reported history of symptomatology for her recurrent vaginitis and acknowledges that she is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Throughout the appeal period, the Veteran underwent two VA gynecological examinations. At the April 2008 VA examination, the Veteran reported the onset of vaginal infections since 1976 during service and has not had one year free of an infection ever since. She has approximately three outbreaks of a yeast infection per year, which usually resolve with Diflucan or vaginal antifungal treatment. Her last infection was approximately one to two months prior. The examiner summarized that, for the Veteran, continuous treatment is not required, treatment response is good with controlled symptoms, and medical treatments include over-the-counter topical cream/ointment or Diflucan by mouth. A history of frequent abnormal vaginal discharge and a urinary tract disease of cystitis more than 15 years were also noted. Upon clinical evaluation, the Veteran was asymptomatic with vaginal discharge and was diagnosed with recurrent vaginitis. The examiner opined, in pertinent part, that medical literature does report that vaginitis can be recurrent and this condition often requires continued medical evaluation and treatment. At the September 2011 VA examination, the Veteran's diagnosis of candidiasis vaginitis was confirmed. The Veteran reiterated she has been having recurrent yeast vaginitis since service and repeated antibiotic use and treatment for H pylori lead to another. She continues to use, as occasion requires, Diflucan and Nystatin. Associated symptoms include irritated labia with no evidence of infection, excoriated skin probably due to itching, and no vaginal discharge. The examiner also indicated the Veteran does not require treatment or medications related to reproductive tract conditions. Following the clinical evaluation, the examiner concluded, in pertinent part, that the Veteran's last Pap smear showed no evidence of candidiasis species. Review of the VA outpatient treatment records from January 2009 to June 2009 note complaints of and treatment for continued vaginal discharge and irritation. A November 2009 record revealed an assessment regarding candida vaginitis and prescribed treatment of Fluconazole once as occasion requires for typical symptoms which seem to be precipitated by courses of antibiotics. The Veteran was advised to seek evaluation if symptoms persist after taking Fluconazole. In February 2010, the Veteran called with complaint of a "skin tag" on the right side of her vaginal area for approximately four days. Approximately four months later, June 2010 records documented the Veteran's present medical history includes frequent vaginal candidiasis, which seems to be precipitated by courses of antibiotics. Most recently, an October 2011 record indicates the Veteran had vaginal burning with discharge last month along with her recurrent vaginal candida, for which she took Fluconazole which relieved most of the symptoms. The Veteran reported she still has some local itching in her vaginal area and would like to be examined. Following the examination, she was assessed with vaginal itching. The physician noted suspicion the Veteran had vaginal candida that has resolved but still has some residual itching which may be exacerbated by some wetness from chronic mild stress incontinence. The Veteran was offered a trial of intravaginal treatment for candida now or in the future and she declined, but her prescription for Fluconazole was refilled. Additionally, the Board notes that the Veteran's list of active outpatient medications included Fluconazole, with instructions to take one table as needed from August 2009 to June 2010 and to take three tablets as needed from September 2010 to March 2011, then back down to one table in September 2011. In the March 2010 statement, the Veteran further noted that she has a standing prescription for Fluconazole and long term use of this drug shows that it does not cure the yeast/fungal infections but actually creates more of a recurrence of the infections/vaginitis and dependency of the medication to the point it will no longer work. Taking antibiotics creates an additional flare up and whenever she is prescribed antibiotics, she must be given medication to try and contain vaginitis, yeast, and fungal infection. The Veteran further asserted that she must be on medication continuously and it helps at the moment but does not cure the problem. When she does not have medication and has a flare up she has to deal with immense pain. She noted having yeast infections every year, taking Fluconazole once per month, and in constant yeast, bacteria, some dysfunction with her vaginal dysfunction monthly. After fully considering the lay and medical evidence discussed above, and resolving all reasonable doubt in the Veteran's favor, the Board finds the assignment of a compensable 10 percent disability rating, but no higher, for the service-connected recurrent vaginitis is warranted for the entire initial rating period. See 38 C.F.R. § 4.116, Diagnostic Code 7611. The evidence shows that, for the entire initial rating period, the service-connected recurrent vaginitis more nearly approximates a manifestation of symptoms that require continuous treatment. The weight of the evidence of record also shows that the service-connected recurrent vaginitis does not more nearly approximate a manifestation of symptoms not controlled by continuous treatment consistent with the criteria listed under the next-higher evaluation of 30 percent under 38 C.F.R. § 4.116, Diagnostic Code 7611. In fact, as discussed above, there is no indication that once treatment is started her symptoms are not controlled. Thus, the next-higher 30 percent rating under Diagnostic Code 7611 is not warranted. The symptoms associated with the recurrent vaginitis have been relatively stable throughout the appeal period, or at least have never been worse than what is warranted for a 10 percent rating. Therefore, the application for staged ratings (i.e., different percentage ratings for different periods of time) is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes, and consideration of the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an initial compensable evaluation higher than the 10 percent currently assigned for the entire initial rating period. With regard to any extra-schedular consideration, neither the Veteran nor the evidence of record raises the issue of a total disability rating based on individual unemployability (TDIU) due to the service-connected recurrent vaginitis for any period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The April 2008 VA examination report noted the Veteran is currently unemployed but not retired as the result of difficulty typing due to brain surgery. Most recently, the September 2011 VA examiner opined that the Veteran's gynecological condition does not impact the ability to work or to secure or maintain employment. It was explained that although the Veteran goes to work but reports that constant itching affects her on the job because of the constant discomfort, recurrent yeast infections are annoying but do not prevent employment nor does it prevent a woman from maintaining gainful employment. Additionally, an extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by the service-connected recurrent vaginitis, to include pain, abnormal vaginal discharge, itching, and continuous treatment. A higher evaluation of 30 percent is provided under the schedular rating criteria (Diagnostic Code 7611) for certain manifestations of the service-connected disability at issue, specifically including symptoms not controlled by continuous treatment, but the competent evidence reflects that this manifestation is not present in this case. For the entire initial rating period, the weight of the competent and more probative evidence of record demonstrates that the service-connected disability has not more nearly approximated a manifestation of symptoms not controlled by continuous medication for a 30 percent rating. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected recurrent vaginitis on appeal is not required. Lumbar Strain The Veteran contends that initial ratings for the service-connected lumbar strain are warranted in excess of 10 percent prior to September 27, 2011 and in excess of 20 percent thereafter. 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. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). 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. Id. 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 or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2012). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59 (2012). It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Pursuant to the rating criteria for the spine, the service-connected lumbar strain has been rated 10 percent disabling from January 2, 2008 to September 26, 2011 for painful motion and 20 percent disabling as of September 27, 2011 for guarding severe enough to result in an abnormal spinal contour. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012); DeLuca, 8 Vet. App at 205. When evaluating all lumbar spine disabilities, to include limitation of motion, the rating agency shall use a general rating formula for diseases and injuries of the spine, unless the disability is rated under the formula for rating intervertebral disc syndrome based on incapacitating episodes (renumbered as Diagnostic Code 5243). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. For VA purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires treatment and bed rest prescribed by a physician. Id. at Note (1). The rating criteria provides a 10 percent rating where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness does not result in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height is present. A 20 percent rating is assigned for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine is 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is present. A 50 percent rating is assigned where unfavorable ankylosis of the entire thoracolumbar spine is present, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffens, or aching in the area of the spine affected by residuals of injury or disease. Id. 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. 38 C.F.R. § 4.71a, Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, and left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. A. Rating Prior to September 27, 2011 The AOJ has assigned a staged rating, primarily based upon the date of a VA examination. The Board does not agree that there has been a significant change and a uniform evaluation is warranted. After a full review of the record, including the present level of disability and current lay and medical findings from January 2, 2008 to September 26, 2011, the Board concludes that a 20 percent for the service-connected lumbar strain is warranted under Diagnostic Code 5237. As discussed below, the evidence of record indicates the service-connected disability more nearly approximates muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. At the May 2008 VA examination, the Veteran reported pain in the lumbar spine, use of an orthosis for her back, the ability to walk up to 50 feet, and loss of balance. Following the clinical evaluation, the examiner documented there were no deformities of the spine or muscle spasm, the Veteran exhibited full range of motion of the thoracolumbar spine, and results from straight leg raising, Patrick, and Bragard tests were negative. The examiner noted that April 2008 x-ray results revealed modest straightening of the normal lordotic curve with no decrease in the height of the intravertebral disk spaces or vertebral bodies with posterior elements being within normal limits and diagnosed the Veteran with lumbar strain. The examiner did not explain the reason for the straightening of the spinal contour. However, shortly after the examination report, the appellant reported her manifestations, that included the presence of spasm. We find it unlikely that the lay evidence of spasm is unrelated to the spasm identified during the next, more thorough examination. The Board finds that there was competent evidence of spasm and competent evidence of straightening of the spine. Also of record are statements from the Veteran regarding the severity of her service-connected disability. In a January 2008 statement, she reported having difficulty with movement in the back and uneven gait and pain in either or both legs. She has balance problems, muscle spasms, and knees hurt when bending down or going up steps. In a June 2009 statement, the Veteran reported experiencing daily middle to lower back pain, receives chiropractic care for spine out of alignment, and difficulty with range of motion to complete household chores. In a June 2009 notice of disagreement, she requested reconsideration for the assignment of a compensable disability rating, in pertinent part, for the service-connected lumbar strain because treatment records show complaints and treatment for back pain, to include 27 years of chiropractic, electrical muscle stimulation (EMS), and cranial sacrum therapy after service. More recently, in a March 2010 statement, the Veteran asserted that she experienced back pain on a daily basis, could not sit for an extended period of time, could not lift anything over 10 pounds without training, could not get up from a squatting position to standing while holding an item in her hand, and pulled a muscle in her back on several occasions. She also reported requiring assistance for activities of daily living. The Board acknowledges the Veteran's reported history of symptomatology regarding the service-connected lumbar strain, to include pain, incoordination, uneven gait, and weakness, as discussed above during this appeal period, and that she is competent to report such symptoms because this requires only personal knowledge as it comes through ones symptoms. Layno, 6 Vet. App. at 470. The Board concludes that the Veteran's subjective complaints of additional limitation of function due to painful motion is now contemplated in the 20 percent disability rating and that an initial evaluation in excess of 20 percent for the service-connected lumbar strain is not warranted based on application of 38 C.F.R. §§4.40 , 4.45, and DeLuca, 8 Vet. App. at 202. In fact, the May 2008 VA examiner noted that repetitive motions of the lumbar spine have no affect on the Veteran's range of motion, pain, fatigability, coordination, weakness, or endurance. B. Rating as of September 27, 2011 (continuous 20 percent evaluation) After a full review of the record, including the present level of disability and current lay and medical findings, the Board concludes that an initial evaluation in excess of 20 percent for the service-connected lumbar strain is not warranted under Diagnostic Code 5237. As discussed below, the evidence of record indicates the service-connected disability more nearly approximates a manifestation of guarding severe enough to result in an abnormal spinal contour, and not forward flexion of the thoracolumbar spine at 30 degrees or less, favorable or unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or intervertebral disc syndrome for a higher rating. Upon range of motion testing at the September 2011 VA examination, the Veteran exhibited normal forward flexion to 90 degrees, limited extension to 20 degrees, limited right and left lateral flexion to 25 degrees, and limited right and left lateral rotation to 10 degrees. The combined range of motion calculated to 180 degrees. Following the clinical evaluation, the VA examiner documented the Veteran has localized tenderness or pain to palpation along the paraspinous muscle groups of the thoracolumbar spine and guarding or muscle spasm of the thoracolumbar spine severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Moreover, imaging studies of the thoracolumbar spine revealed the Veteran does not have arthritis or a vertebral fracture. VA outpatient treatment records from October 2011 to January 2011 are silent as to any complaints or treatment for the service-connected lumbar strain. Again, the Board acknowledges the Veteran's reported history of symptomatology regarding the service-connected disability, to include pain, and that she is competent to report such symptoms. Layno, 6 Vet. App. 465, 470 (1994). However, an evaluation in excess of the currently assigned 20 percent rating is not warranted in this case as the service-connected lumbar strain does not exhibit additional functional loss, to the severity of limited forward flexion to 30 degrees or less or favorable or unfavorable ankylosis of the thoracolumbar spine due to pain on movement. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 205. At the September 2011 VA examination, the Veteran exhibited painful forward flexion beginning at 60 degrees and painful extension beginning at 20 degrees, but there were no changes upon repetitive-use testing. The examiner also noted objective findings of pain on movement, but did not indicate such a finding resulted in additional functional limitation. C. Additional Rating Considerations The Board finds that an initial rating in excess of 20 percent is not warranted under Diagnostic Code 5243 as the lay and medical evidence of record does not show the Veteran has been diagnosed with intervertebral disc syndrome based on incapacitating episodes. The Veteran informed the May 2008 VA examiner that flare ups of lumbar spine pain are precipitated by sitting in excess of 2 minutes on a daily basis, lasts for 5 to 10 minutes, and relieved by medication, and the examiner concluded that the Veteran has not had any incapacitating episodes in the past 12 months. The Veteran also informed the September 2011 VA examiner that standing and sitting for long periods flare ups low back pain, but the examiner marked the Veteran does not have intervertebral disc syndrome of the thoracolumbar spine. Next, a separate evaluation may be warranted for any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). The May 2008 VA examination report indicates the Veteran reported she has occasional radiation of lumbar spine pain to the right popliteal areal, and her physical activities involving both lower extremities is restricted during flare ups. Nonetheless, the examiner documented the Veteran has no loss of control of her bowel or bladder, sensation to pinprick and touch is preserved, pulses were normal in both lower extremities, and muscle testing showed no weakness of the lower extremities. Moreover, the Veteran denied any numbness or weakness to the lower extremities. Most recently, the September 2011 VA examiner noted the lower extremities showed normal muscle strength and active movement against resistance and no muscle atrophy upon muscle testing, normal reflexes, and normal sensation to light touch, except for decreased sensation for the foot/toes (L5) upon sensation testing. Additionally, no objective findings of radicular pain or any other signs or symptoms due to radiculopathy or any other neurologic abnormalities or findings related to a thoracolumbar condition. As a result, the totality of the lay and medical evidence of record during both periods on appeal does not demonstrate any associated objective neurological abnormalities, including bowel or bladder impairment, so a separate evaluation is not warranted in this case. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an evaluation higher than the 10 percent and 20 percent disability ratings currently assigned during the initial rating periods on appeal. Fully considering the lay and medical evidence regarding the service-connected lumbar strain, the reported symptomatology, as noted above, shows some degree of painful motion and guarding/spasm severe enough to result in an abnormal spinal contour. However, the symptomatology does not show a manifestation of limited range of motion, favorable or unfavorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome during either period on appeal for the assignment of higher disability ratings. The 20 percent disability ratings currently assigned recognize painful motion and guarding severe enough to result in an abnormal spinal contour of the thoracolumbar spine consistent with such ratings under Diagnostic Code 5237 and DeLuca, 8 Vet. App. at 202 during the respective appeal periods. Thus, a preponderance of the evidence is against an initial evaluation for the service-connected lumbar strain in excess of 10 percent prior to September 27, 2011 and in excess of 20 percent thereafter. 38 C.F.R. §§ 4.3, 4.7. D. Extra-Schedular Consideration Neither the Veteran nor the evidence of record raises the issue of a total disability rating based on individual unemployability (TDIU) due to the service-connected lumbar strain for any period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As discussed above, the April 2008 VA examination report noted the Veteran is currently unemployed but not retired as the result of difficulty typing due to brain surgery. Most recently, the September 2011 VA examiner opined that the Veteran's lumbar strain does not prevent employment and does not prevent the Veteran from securing or maintaining employment independent of her age and other physical disorders, and upon clinical evaluation, there were no objective findings of a neurological deficit due to the lumbar strain that prevents the Veteran from maintaining and seeking employment. With regard to whether an extra-schedular rating may be provided pursuant to 38 C.F.R. § 3.321, the Board finds that the schedular rating criteria adequately contemplate and describe the symptoms and impairment caused by the service-connected lumbar strain, to include limited motion, painful motion, weakness, incoordination, and uneven gait, localized tenderness, and difficulty completing household chores. A rating in excess of 20 percent is provided under the schedular rating criteria (Diagnostic Code 5257) for certain manifestations of the service-connected disability at issue, but the competent evidence reflects that those manifestations are not present in this case. The weight of the competent and more probative evidence of record indicates the service-connected disability has not more nearly approximated a manifestation of forward flexion of the thoracolumbar spine at 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine for a 40 percent rating, unfavorable ankylosis of the entire thoracolumbar spine for a 50 percent rating, unfavorable ankylosis of the entire spine for a 100 percent rating, or intervertebral disc syndrome based on incapacitating episodes during both periods on appeal. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected lumbar strain on appeal is not required. ORDER An initial compensable disability rating of 10 percent, but no higher, for recurrent vaginitis is granted. A 20 percent evaluation for lumbar strain prior to September 27, 1011 is granted. An evaluation in excess of 20 percent for lumbar strain is denied. ___________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs