Citation Nr: 1306336 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-43 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a thoracolumbar condition for the period from May 29, 2007, to February 28, 2010. 2. Entitlement to an initial evaluation in excess of 10 percent for a thoracolumbar condition for the period from June 1, 2010, to December 15, 2010. 3. Entitlement to an initial evaluation in excess of 20 percent for a thoracolumbar condition on or after December 16, 2010. ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2003 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In that decision, the granted service connection for "residuals of a mid-back trauma" and assigned a 10 percent disability evaluation effective from May 29, 2007. In his September 2008 Notice of Disagreement (NOD), the Veteran indicated that he has a lumbar spine (low back) condition. The RO considered that statement to be a separate claim for a low back condition, and a July 2009 rating decision by the RO in Waco, Texas, granted service connection for a low back condition and assigned an evaluation of 10 percent effective from May 29, 2007. However, in an effort to avoid pyramiding, a subsequent rating decision issued in October 2010 provided a correction to the previous rating decisions that granted separate evaluations for the mid-back and low back. The RO properly recharacterized the issue as an evaluation of a thoracolumbar condition (previously mid-back trauma and low back condition), noting that both grants of service connection for the mid-back trauma and the low back condition were based on evaluations of the range of motion of his thoracolumbar spine. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, the RO made the correction to reflect one thoracolumbar spine condition, evaluated at 10 percent disabling. The RO noted that this rating did not change the Veteran's combined evaluation of 30 percent disabling. The Veteran was also granted a temporary 100 percent evaluation from Marc 1, 2010, to June 1, 2010, for convalescence following a L4-S1 spinal fusion. During the pendency of the appeal, the RO issued a decision in February 2011, which increased the disability evaluation for the Veteran's back disability to 20 percent effective from December 16, 2010. However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal to the Board. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. From May 29, 2007, to February 28, 2010, the Veteran's thoracolumbar condition was not productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 2. From June 2, 2010, to December 15, 2010, there is a reasonable doubt as to whether the Veteran had forward flexion limited to 60 degrees after repetitive motion testing, as was later shown during a December 16, 2010, VA examination. 3. On or after, June 2, 2010, the Veteran has not been shown to have forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 4. The Veteran has been diagnosed with lumbar radiculopathy affecting his lower extremities, which is a manifestation of his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for a thoracolumbar condition for the period from May 29, 2007, to February 28, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5235-5243, (2007-2012). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 20 percent disability evaluation for a thoracolumbar condition have been met for the period from June 1, 2010, to December 15, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243, 5292, 5293, 5295 (2010-2012). 3. The criteria for an initial evaluation in excess of 20 percent for a thoracolumbar condition on or after December 16, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5235-5243, (2010-2012). 4. Resolving all reasonable doubt in favor of the Veteran, service connection is warranted for radiculopathy of the lower extremities. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for a back disability. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91; see also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issues of entitlement to a higher initial evaluation for his thoracolumbar condition. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any available, outstanding records that are relevant to the claim being decided herein. The Veteran was also afforded VA examinations in February 2007 and December 2010 in connection with his current claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on an examination, and fully address the rating criteria that are relevant to rating the disability in this case. Moreover, the Veteran has not asserted and the evidence does not show that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined in December 2010. 38 C.F.R. § 3.327(a); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran throughout the course of this appeal by providing him with a SOC and a SSOC, which informed him of the laws and regulations relevant to his claim. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Law and 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran's thoracolumbar decision has been assigned a 10 percent disability evaluation for the periods from May 29, 2007, to February 28, 2010, and from June 1, 2010, to December 15, 2010, and a 20 percent disability evaluation as of December 16, 2010. He was granted a temporary total evaluation for the period from March 1, 2010, to June 1, 2010; therefore, that period is not for consideration. The Veteran's disability evaluations for his thoracolumbar condition were assigned pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 indicates that lumbosacral or cervical strain should be evaluated under the General Rating Formula for Disease and Injuries to the Spine. Note 6 also provides that the thoracolumbar segment of the spine includes the thoracic and lumbosacral spine. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees but not greater than 235 degrees; 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 disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For purposes of VA compensation, the regulations define normal range of motion for the thoracolumbar spine as 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). A. From May 29, 2007, to February 28, 2010 In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 10 percent for his thoracolumbar condition for the period from May 29, 2007, to February 28, 2010. By way of background, the Veteran was seen for thoracic muscle spasms in service following a fall down a flight of stairs in October 2006 and for upper back pain in December 2006. A February 2007 VA examination a few months prior to separation from service showed findings of residuals and a history of mid-back trauma as a result from the in-service injury sustained in October 2006. The Veteran reported functional impairment, such as upper back pain, numbness, tingling, and radiation associated with his back injury. Examination findings also revealed that there was slightly decreased range of motion for the lumbar spine and upper left extremity, but repeated movement did not reduce range of motion or cause pain. The examiner reported that x-rays of the thoracic spine taken in October 2006 revealed normal findings. There was normal spinal alignment, and vertebral body and intervertebral disc heights were maintained. There was no evidence of fracture, and no suspicious lytic or sclerotic lesions, and no degenerative changes. Post-service VA records reveal a complaint of low back pain with diagnoses of lumbar radiculopathy and sciatica in January 2008. A February 2008 treatment records from Germany show a diagnosis of lumbar radiculopathy and identified painful motion upon a straight leg raise on the right (localized pain in the L3 and L4 region). Medications were prescribed for treatment. March 2008 x-rays of the lumbar spine revealed normal findings. Vertebral bodies were of normal height with adequate maintenance of the intervertebral disc spaces. There was no evidence of traumatic, neoplastic, or significant arthritic change. There was also no evidence of spondylolysis or spondylolisthesis (fracture of vertebral bones). An MRI of the lumbar spine was administered in March 2008, and an April 2008 MRI findings report revealed that normal lumbar lordosis was present. Alignment was found to be within normal limits with mild spondylosis and disc desiccation seen at L4-L5 and L5-S1. The vertebral body heights and intervertebral disc spaces heights were maintained. The examiner's impression indicated disc protrusions at L4-L5 and more notable at L5-S1 where he observed mild to moderate central canal stenosis, and mild mass effect on the right descending S1 nerve root and mild right sided neural foraminal narrowing. Private treatment records from Dr. Q.H. (initials used to protect privacy) revealed that the Veteran complained of constant and aching back pain in February 2009, which was being treated with medication. The Veteran reported pain in his lower back since his injury in service with pain radiating bilaterally in the hips, thighs, legs, feet, and toes. The Veteran reported musculoskeletal issues of muscle pain and tenderness with nerve compression, swelling, and posture abnormalities. He also reported neurological problems with coordinating body movements and reported involuntary movements. He denied having any muscle spasticity or seizures. Upon physical examination, the examiner found no neurological impairments with the upper extremities. With the lower extremities, the examiner noted no abnormalities, although he remarked that the straight leg raise was causing pain the back. Upon examination of the musculoskeletal system, the examiner found no abnormalities with the lumbar spine, and normal range of motion was noted. There was no abnormality of the thoracic spine with normal range of motion, although tenderness was noted about the thoracic spine musculature. Dr. Q.H. assessed lumbosacral spondylosis without myelpathy and radiculopathy of the thoracic/lumbar spine. He planned to obtain an MRI of the thoracic and lumbar spine. A follow-up report with Dr. Q.H. in June 2009 reviewed results from a May 2009 MRI, which revealed L4-5 and L5-S1 posterior disc protrusion with dorsal annular tear and narrowing of bilateral L5-S1 lateral recesses with dorsal displacement of the descending S1 nerve roots. Dr. Q.H. reviewed findings from the Veteran's previous MRI (likely referring to March 2008 MRI) and noted no significant changes since then. The Veteran reported constant pain and aching, which was helped by medication. He also reported that he was experiencing left leg pain and buckling. Upon physical examination, Dr. Q.H. found that there were no neurological abnormalities about his lower extremities, except again that the straight leg raise was causing back pain. Inspection of the musculoskeletal system revealed normal ranges of motion and no abnormality for the thoracic and lumbar spine (with tenderness in the thoracic spine musculature). The doctor noted lumbosacral spondylosis without myelpathy and radiculopathy of the thoracic/lumbar spine, as well as a displaced lumbar disc, and he recommended an epidural steroid injection at L5-S1 level. A follow-up report with Dr. Q.H. dated in July 2009 following an epidural steroid injection in the back revealed that the injection was only effective for four days. The findings upon physical examination were the same as the June 2009 report. Dr. Q.H. referred the Veteran for surgical evaluation based on his opinion that the MRI showed a long-standing problem with the Veteran's back. VA treatment records document that the Veteran underwent a spinal fusion (L4-S1) in March 2010. The Board notes that the Veteran received a 100 percent staged rating as of the date of the surgery and for three months following the surgery. See 38 C.F.R. § 4.30. The record also contains a letter from Dr. Q.H. dated in July 2009, which summarizes the doctor's findings from his treatment of the Veteran from February 2009 to July 2009. The Board has also considered the lay evidence of record, to include the Veteran's reports during VA examinations and his personal written submissions in deciding this case. However, even affording this lay evidence full competence and credibility, such lay evidence does not support a schedular rating higher than that currently awarded, as he has not attested to having the symptomatology necessary under the rating criteria. Based on the foregoing evidence, the Board finds that the Veteran has not been shown to have forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion not greater than 120 degrees. The February 2007 VA examiner only noted slightly decreased range of motion prior to his separation, and the post-service VA and private medical records demonstrate that the Veteran's range of motion for the thoracolumbar spine was normal. Moreover, the Veteran has not been shown to have muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In this regard, the Veteran did not complain of any muscle spasms during the February 2007 examination or during any treatment with Dr. Q.H. Although a November 2008 problem list indicates complaints of muscle spasms, the Veteran was consistently found to have a normal gait and a normal spine without curvature during physical examinations. Moreover, the February 2007 VA examination specifically noted that the Veteran did not have kyphosis, lordosis, or a significant scoliosis. In addition, there is no indication that the Veteran has had incapacitating episodes with a total duration of at least two weeks during the past 12 months. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least two weeks. As such, he has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's thoracolumbar condition for the period from May 29, 2007, to February 28, 2010, is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent disability evaluation, and no higher. In this regard, the Board observes that the Veteran has complained of pain on numerous occasions. However, the effect of the pain in the Veteran's spine is contemplated in the assigned 10 disability evaluation under Diagnostic Code 5237. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the February 2007 VA examiner noted that repeated movement did not reduce the range of motion or cause pain. "Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). In rendering this decision, the Board also notes that the Veteran failed to report for a scheduled VA examination in May 2009 at the El Paso VA Medical Center. The Veteran did not provide an explanation for his failure to report. In Wood v. Derwinski, 1 Vet. App 190 (1991), the Court noted that "[t]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." In this case, the Veteran failed to report for a VA examination that might have assisted him in supporting his claim. See 38 C.F.R. § 3.655. Evidence from this examination may have been helpful in determining the severity of his service-connected back disability prior to his surgery in March 2010. The action to be taken in instances where a veteran fails to report for a VA examination depends on if the examination was scheduled in connection with an initial rating claim or a claim for an increase. An initial rating claim is classified as an original compensation claim under 38 C.F.R. § 3.655(b), so where a veteran fails to report for an examination, the case shall be rated on the evidence of record. Fenderson v. West, 12 Vet. App. 119, 125 (1999); Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). For all of these reasons, the Veteran has not satisfied the criteria for an award of a schedular rating higher than 10 percent for the time period of May 29, 2007, to February 28, 2010. The Board concludes that the preponderance of the evidence is against a finding for a disability rating in excess of 10 percent for the Veteran's back disability during this specified timeframe. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nevertheless, after reviewing the record, the Board does find that a separate disability rating is warranted because the objective medical evidence demonstrates that the Veteran suffers from a separate neurological disability distinct from his service-connected back disability. The Board observes that both VA and private treatment records demonstrate evidence of radiculopathy. In this regard, post-service treatment records show a complaint of low back pain with diagnoses of lumbar radiculopathy and sciatica in January 2008. VA post-service treatment records from Germany in February 2008 also reveal a diagnosis of lumbar radiculopathy and indicated painful motion with positive straight leg raise on the right. The March 2008 treatment record from Fort Bliss further indicates a prior diagnosis of lumbar radiculopathy. In addition, private treatment records from Dr. Q.H. dated from February 2009 to July 2009 indicate a diagnosis of radiculopathy (thoracic and lumbar). In June 2009, the Veteran reported to Dr. Q.H. that he used to have pain in his right leg, but now he is experiencing left leg pain with buckling. Upon several neurological examinations of his lower extremities during the course of treatment in 2009, muscle strength was 5/5 throughout all major muscle groups in the lower extremities. Sensory examination of the lower extremity showed no abnormality, and the reflexes were equal and symmetrical bilaterally. There was no allodynia, hyperesthesia, trophic changes, or edema. However, the straight leg raise was consistently causing pain to the Veteran's back. Therefore, based on the foregoing, the Board concludes that the Veteran does suffer from additional neurological deficiency, namely radiculopathy of the lower extremities, so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman v. Brown, 6 Vet. App. 125, 129-132 (1994). Accordingly, service connection is warranted for radiculopathy of the lower extremities. B. On or after June 1, 2010 As previously discussed, the Veteran's thoracolumbar condition is currently assigned a 10 percent disability evaluation for the period from June 1, 2010, to December 15, 2010, and a 20 percent disability evaluation as of June 1, 2010. Significantly, there is no pertinent evidence of record dated between June 1, 2010, and December 15, 2010. The first relevant evidence following the Veteran spine surgery was a December 16, 2010, VA examination report, which was the basis of the increase to a 20 percent rating. The Board finds it unlikely that the Veteran's disability suddenly worsened on that particular date. Thus, resolving the benefit of the doubt in the Veteran's favor, the Board concludes that a 20 percent disability evaluation is warranted for the period from June 1, 2010, to December 15, 2010. The remaining question is whether the Veteran's thoracolumbar disability warrants a rating in excess of 20 percent at any time since June 1, 2010. As noted, the Veteran was afforded a VA examination in December 2010 in connection with his claim for an increased evaluation. During that examination, the Veteran stated that he has done fairly well since his lumbar spine, but noted that he still has some daily low back pain, which lasts all day. He stated that his pain worsens with any kind of prolonged standing, prolonged walking, or when sitting or attempting to lift. He also admitted that the low back pain definitely decreased since his surgery and noted that his low back pain stays localized in the lower back. The Veteran stated that he stayed home to care for his two children, but indicated that, in the last 12 months of employment, he missed work for about 5 or 6 days because of his lower back pain. A physical examination revealed that the Veteran had forward flexion limited to 70 degrees, extension limited to 10 degrees, bilateral lateral flexion to 15 degrees in both directions, and bilateral rotation limited to 10 degrees in both directions. On repetitive motion testing (three times), the flexion decreased to 60 degrees, extension decreased to 5 degrees, bilateral lateral flexion decreased to 10 degrees, and bilateral rotation decreased to 5 degrees. X-rays of the thoracic spine showed very slight scoliosis, but were essentially normal. X-rays of the lumbar spine also showed no complications. The examiner diagnosed the Veteran with "[s]tatus post spinal fusion at L4-S1, with a very slight scoliosis of the thoracic spine by x-rays, associated with chronic low back pain, mild to moderate." The current thoracolumbar spine disability was characterized as mild to moderate. The Veteran has not identified any other relevant evidence during this time period. Nor has he alleged that there has been any worsening of symptoms since that examination. Based on the foregoing evidence, the Veteran has not been shown to have forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire spine, which is the criteria for a 40 percent disability rating. In fact, even after repetitive motion testing, the Veteran still had 60 degrees of forward flexion. Moreover, the range of motion findings also show that the Veteran's spine is not fixed or immobile. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint", citing Stedman's Medical Dictionary 87 (25th ed. 1990)). In addition, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note 1. The Board notes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician during this time period. Nor has the Veteran alleged that he has ever had incapacitating episodes for four weeks to six weeks within one year. After reviewing the record, the Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffered from a separate neurological disability distinct from his thoracolumbar condition. The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. In the decision above, the Board has already granted service connection for radiculopathy of the lower extremities. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). There is no indication or contention that he has any other neurological symptoms. Therefore, the Board concludes that the Veteran does not suffer from any additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman, 6 Vet. App. at 129-132. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms since June 1, 2010, are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the December 2010 VA examiner commented that the Veteran's back disability was only mild to moderate in severity, and the Veteran himself indicated at that time that his pain actually decreased since his surgery. In addition, repetitive motion testing did not result in a decrease of forward flexion to 30 degrees or less or ankylosis. Therefore, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 20 percent for the Veteran' thoracolumbar condition on or after June 1, 2010. C. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's back disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's back disability level and symptomatology, which primarily consisted of pain, decreased range of motion, and radiculopathy. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected back disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial evaluation in excess of 10 percent for a thoracolumbar condition is denied for the period from May 29, 2007, to February 28, 2010. Subject to the regulations applicable to the payment of monetary benefits, an initial 20 percent evaluation is granted for a thoracolumbar condition for the period from June 1, 2010, to December 15, 2010. An initial evaluation in excess of 20 percent for a thoracolumbar condition on or after June 1, 2010, is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs