Citation Nr: 1306571 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 07-25 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for service-connected degenerative disc disease L4-L5 from November 3, 2005, to February 16, 2006 and in excess of 20 percent for service-connected degenerative disc disease L4-L5 from February 16, 2006 to July 30, 2007. 2. Entitlement to an increased disability rating for service-connected degenerative disc disease L4-L5, currently rated as 40 percent disabling, from July 31, 2007. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from September 1966 to July 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2011, the Board remanded the issues of entitlement to an increased disability rating for service-connected degenerative disc disease L4-L5, currently rated as 40 percent disabling, from July 31, 2007, and entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). As to the issues decided below, the Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the Veteran was examined and as will be explained below, the examination was adequate. 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 issues have been returned to the Board and are ready for further review. Also in September 2011, the Board denied the claim of entitlement to an increased disability rating in excess of 10 percent for service-connected degenerative disc disease L4-L5 from November 3, 2005, to July 30, 2007 but granted a 20 percent rating for the disorder from February 16, 2006. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2012, the Court issued an Order, pursuant to a Joint Motion for Remand, granting the motion for remand and remanding the issue of entitlement to an increased disability rating in excess of 10 percent for service-connected degenerative disc disease L4-L5 from November 3, 2005, to July 30, 2007 to the Board for action consistent with the Joint Remand. Thus the issues currently before the Board are listed on the first page of this decision. As noted above, the issue of entitlement to an increased disability rating in excess of 10 percent for service-connected degenerative disc disease L4-L5 from November 3, 2005, to July 30, 2007 was remanded by the Court for adjudicative action pursuant to the Joint Motion for Remand. The Joint Motion noted that the Board found that despite the Veteran's complaints of radiating pain as shown on VA outpatient treatment no radicular symptoms or motor or sensory deficits were detected and that also no spasm was detected during the February 2006 or 2007 VA spine examinations. It was noted that the Board did not account for the diagnosis of radiculopathy contained in the July 2006 VA outpatient treatment note. Thus it was stated that a remand was required to explain whether the diagnosis of radiculopathy constitutes objective evidence of radicular symptoms which would entitle the Veteran to a separate rating under Note 1 of DC 5242. The issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) 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. As of February 16, 2006, the service-connected degenerative disc disease L4-L5 is shown to have been productive of a disability picture that more nearly approximated that of a combined range of motion of the thoracolumbar spine not greater than 120 degrees; neither limitation of forward flexion of the thoracolumbar spine to less than 30 degrees, or favorable ankylosis of the thoracolumbar spine were demonstrated at that time, or at anytime from November 3, 2005, to July 30, 2007. 2. In February 2007, the Veteran was noted to have decreased sensory sensation to light touch of the S1 and L5 dermatomes of the foot and ankle and straight leg raising produced pain and radiation to the upper thigh. 3. The Veteran's low back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine from July 31, 2007. Associated neurologic abnormalities have been assigned separate evaluations, and the Veteran has never been prescribed bed rest by a physician due to his low back disability. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for service-connected degenerative disc disease L4-L5 from November 3, 2005, to February 2006 and in excess of 20 percent for service-connected degenerative disc disease L4-L5 February 2006 to July 30, 2007 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a 10 percent rating for decreased sensation of the left foot and ankle have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for a 10 percent rating for decreased sensation of the right foot and ankle have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for an evaluation for service-connected degenerative disc disease L4-L5, in excess of 40 percent from July 31, 2007 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(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 a 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 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); 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); 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, 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. 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 (zero percent) 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, 580 F.3d at 1270. Prior to initial adjudication of the Veteran's increased rating claim for his lumbar spine disability decided below, the Veteran was provided with a letter satisfying the elements under the duty to notify provisions. See Dingess, 19 Vet. App. at 473. A January 2007 letter specifically discussed what was necessary to establish a claim of entitlement for an increased evaluation for a service connected disability. That letter also notified the Veteran that a disability rating would be determined by applying relevant diagnostic codes, as well as indicating the types of medical and lay evidence necessary to establish his entitlement to increased compensation. The requirements under Vazquez-Flores have been satisfied and the duty to notify has been satisfied. The Board also finds that VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private treatment records have been obtained and associated with the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. With respect to the Veteran's increased rating claim, the duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See 38 C.F.R. § 3.327(a) (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was afforded VA examinations to determine the nature and severity of his lumbar spine disorder. To that end, 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 VA examinations are adequate as they predicated on a review of medical records and the examiners fully addressed the rating criteria that are relevant to rating the disability at issue here. There is adequate medical evidence of record to make a determination in this case. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues adjudicated herein has been met. 38 C.F.R. § 3.159 (c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. Newhouse v. Nicholson, 497 F.3d 1298 (2007). Increased Evaluation Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. While regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to the absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent disability rating is warranted upon evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but less than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a. A 20 percent rating is assigned where the evidence shows forward thoracolumbar flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of thoracolumbar motion 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. Id. A 40 percent rating is assigned when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment are evaluated separately under an appropriate diagnostic code. Id., Note (1). Normal thoracolumbar flexion is from zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Note 2; Plate V. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Entitlement to an increased disability rating in excess of 10 percent for service-connected degenerative disc disease L4-L5 from November 3, 2005, to February 2006 and in excess of 20 percent for service-connected degenerative disc disease L4- from February 2006 to July 30, 2007. Service connection was granted by the RO for degenerative disc disease L4-L5 in August 2005; a 10 percent disability evaluation was assigned, effective from March 11, 2003. The Veteran did not appeal this decision. The Veteran's claim for an increase was received by VA on November 3, 2006. The RO continued the 10 percent rating in a March 2007 rating decision. A private medical examination report, entitled "Functional Capacity Evaluation" conducted on February 16, 2006, shows that deficits were identified in the following areas: pain management, decreased lifting ability, decreased positional tolerances, body mechanics, decreased core stabilization, overall deconditioning, gait antalgia, lumbar muscle guarding, and lumbar decreased range of motion. The Veteran reported subjective pain complaints from the center of his lumbar area to his lateral hips. He described the pain as constant in nature. Work activities, such as standing, bending, excessive walking, twisting, lifting, and vacuuming, as well as sex, aggravated his symptoms the most. Examination revealed postural deficits which included lumbar lordosis. Range of motion testing of the lumbar spine showed flexion as "45 degrees - 15 degrees = 30 degrees," extension to 5 degrees, right and left lateral flexion each to 18 degrees, and right and left rotation lacking "approximately 60% of normal." These bilateral rotation findings, with normal being to 30 degrees, translate to left and right rotation each to 12 degrees. The diagnoses included degenerative disc disease and spondylolisthesis. A July 2006 VA ambulatory care outpatient treatment note shows that the Veteran complained of off and on back pain, radiating into his bilateral buttocks. It was noted by way of history that the Veteran had back pain and that an X-ray of one year prior showed Grade I spondylolisthesis of L4 on L5, and degenerative disc disease L5-S1 with associated anterior hypertrophic spurring was diagnosed at that time. The Veteran reported currently that his pain has worsened with prolonged walking and standing. On neurological examination, it was noted there were no focal deficits. The finding was, back pain, with radiculopathy. A VA spine examination was conducted in February 2007. The Veteran reported mechanical back pain, worse after working. He added that his back pain was aggravated by sexual intercourse. Examination of the Veteran's lumbosacral spine showed normal curvature with normal lordosis. Tenderness without spasm was also observed in the areas of the right paraspinal muscles and thoracolumbar myofascia. Neurologically, a finding of subjective decreased sensation to light touch of the S1 and L5 dermatomes of the foot and ankle was reported. Straight leg raising testing elicited buttocks pain but no radiation below the upper thigh. Range of lumbar spine motion testing (conducted three times) showed, respectively: flexion to 70, 60, and 80 degrees; extension to 20, 20, and 24 degrees; left lateral flexion to 26, 20, and 20 degrees; right lateral flexion to 18, 14, and 20 degrees; right rotation to 20, 20, and 20 degrees; and left rotation to 30, 30, and 28 degrees. The examiner commented that on range of motion testing the Veteran complained of balance-related problems and was leaning on the wall. This appeared to be exaggerated and functional in nature. The Veteran was able to perform heel and toe raises without difficulty and with no support. X-ray examination showed degenerative disc disease. Lumbar degenerative disc disease and L4-L5 and Grade I spondylolisthesis were diagnosed. Multiple lay statements are of record, dated in February and March 2007. These statements, many of which are essentially identical, all indicate that the Veteran was having trouble with limping, losing his balance, getting up from a seated position, stumbling, and showing a pain-induced expression. The medical findings concerning the service-connected lumbar spine disability, during the pertinent period of time cited, essentially include a private medical examination which was conducted on February 16, 2006, outpatient records and a VA examination report conducted in February 2007. During this time period intervertebral disc disease was not diagnosed. Thus, consideration of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted here. Concerning an orthopedic rating under the General Rating Formula, as noted above, a 20 percent rating requires 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 assigned when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. Id. In a February 16, 2006, private medical "Functional Capacity Evaluation," the flexion findings documented during range of motion testing were, at best, confusing, but even using 45 degrees, the highest lumbar flexion finding which can be interpreted from these test findings, the combined range of motion of the Veteran's thoracolumbar spine was 110 degrees, and thus not greater than 120 degrees. Therefore, as of February 16, 2006, a 20 percent rating, but no more is warranted. The evidence does not show that a rating in excess of 20 percent during this time period is warranted. None of the medical evidence shows that forward flexion of the Veteran's thoracolumbar spine was found to be 30 degrees or less or that favorable ankylosis of the entire thoracolumbar spine was at any time demonstrated. Hence, on this record, an increased rating of 20 percent is assigned as of February 16, 2006, but no more is warranted for this period of time. The Board has also considered whether the consideration of a higher rating is appropriate based on evidence of pain, weakened movement, excess fatigability, or incoordination. See 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. 202. However, under 38 C.F.R. § 4.71a , General Rating Formula for Diseases and Injuries of the Spine, disability ratings are to be assigned without regard to pain, stiffness, and aching. Further, no examiner has noted additional loss of range of motion due to pain with repeated movement, and the Veteran's forward flexion has never been measured below 30 degrees, as required for the assignment of a higher rating. As such, the Board does not find that a higher disability rating based on 38 C.F.R. § 4.40 and DeLuca is warranted during this time frame. A Separate Rating for Neurological Findings The Board observes that application of 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1), requires separate evaluation of any objective neurologic abnormalities. Generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A note to 38 C.F.R. § 4.124(a) states that the term "incomplete paralysis" where involving peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The words "mild," "moderate," and "severe" are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Peripheral nerves are rated under 38 C.F.R. § 4.124a , Diagnostic Codes 8510 to 8540, which specifies that when there is no paralysis and the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. Diagnostic Code 8520 is applicable to symptoms related to the sciatic nerve; mild symptoms warrant a 10 percent rating, moderate warrant 20 percent, moderately severe warrant 40 percent, and severe with marked muscle atrophy warrant 60 percent. A review of the evidence shows neurological symptoms that might be separately rated and combined with the rating for orthopedic disability. The Veteran has been so rated subsequent to the time period of concern in this decision; however if the evidence supports a finding that during the timeframe from in question here separate ratings are warranted the Board can so decide. The Veteran has complaints of radiating pain as shown in a July 2006 VA outpatient record, and a diagnosis of back pain with radiculopathy. No focal deficits were found. However the evidence also shows that the Veteran has complained of low back pain radiating into his buttocks. In February 2007, he was found on VA neurological examination to have subjective decreased sensation to light touch of the S1 and L5 dermatomes of the foot and ankle. Straight leg raising elicited buttocks pain with no radiation below the upper thigh. His subjective complaints have thus been confirmed by clinical findings. As noted above, 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). Here there is a finding of radiculopathy in July 2006, and the February 2007 examination report shows that neurologically there was a subjective decreased sensation to light touch of the S1 and L5 dermatomes of the foot and ankle. Straight leg raising produced pain and radiation into the buttocks and upper thigh. As the Veteran was diagnosed with pain with radiculopathy, pain on straight leg raising and also found to have decreased sensation to light touch of the S1 and L5 dermatomes, the Board finds that a separate rating for these neurologic symptoms is appropriate. The symptoms are wholly sensory in nature, are not noted to result in difficulty walking, and no VA examiner has observed any atrophy in the lower extremities. As such, the Board finds that mild, or 10 percent ratings, are appropriate for each bilateral lower extremity. Entitlement to an increased disability rating for service-connected degenerative disc disease L4-L5, currently rated as 40 percent disabling, from July 31, 2007. The Veteran's lumbar spine disorder warrants no more than an evaluation of 40 percent from July 31, 2007. The evidence shows that at on the private evaluation and VA examinations motion of the spine was documented in degrees. Private reports show that in July 2007 shows flexion to 30 degrees, extension to 5 degrees, right side bend to 12 degrees, and left side bend to 20 degrees. On VA examination on October 2009. On examination, flexion was to 35 degrees, extension was to less than 10 degrees, lateral bend was to 25 degrees on the left and to 15 degrees on the right. Rotation was to 15 degrees bilaterally. The impression was multilevel degenerative joint disease and lumbar spinal stenosis with primarily right leg radiculopathy. On VA examination in December 2009, the Veteran reported having pain traveling to his right leg. He reported having flare-ups daily. Flexion was to 60 degrees, extension was to 10 degrees, left and right lateral flexion were to 20 degrees, and left and right lateral rotation was to 15 degrees. Motion performed one more time resulted in no loss in range of motion. There were no muscle spasms. There were no bowel or bladder dysfunctions. Degenerative disc disease L4-L5 with recurrent back sprains/strains; intervertebral disc syndrome lumbar spine, most likely involving the sciatic nerve, and erectile dysfunction secondary to degenerative disc disease L4-L5 were the diagnoses. On VA examination in November 2010, the Veteran reported that his lumbar spine disorder was worsening. Flexion was to 40 degrees with painful motion beginning at 30 degrees; extension was to 20 degrees with painful motion beginning at 15 degrees; right and left lateral flexion were to 30 degrees or greater with no evidence of painful motion; and right and left lateral rotation were to 30 degrees or greater and there was no painful motion on the right but painful motion to 20 degrees was noted on the left. There was no decrease in motion after 3 repetitions. As to functional loss, there was less movement than normal, pain on movement and instability of station. There was tenderness to palpation and muscle spasm with an abnormal gait. There was no atrophy. There decreased sensation in the right lower extremity and into the toes. He had mild radiating pain into the right lower extremity with moderate pain, paresthesias and numbness. The examiner noted involvement of the femoral and sciatic nerves. The Veteran had no incapacitating episodes. X-rays were noted to show arthritis. The Veteran was examined by VA in June 2012. The examiner stated that there is no thoracolumbar ankylosis at all. Flexion was to 40 degrees and the combined range of motion was 180 degrees. It was stated that the Veteran's disorder had generalized weakened movement or forward flexion and extension with some instability of station, but no excess fatigability or incoordination. It was noted he had no incapacitating episodes. With respect to incapacitating episodes, since July 31, 2007, although the Veteran claimed in a December 2009 statement that he was told to rest by a doctor a review of the record, particularly the VA examination reports, fails to disclose that the Veteran was prescribed bed rest by a physician and treatment by a physician. See 38 U.S.C.A. § 4.71a, Diagnostic Code 5243, Note (1). Accordingly, an evaluation in excess of 40 percent cannot be substantiated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As to the General Rating Formula for Disease and Injuries of the Spine, the Board notes that the evidence must show ankylosis in order to warrant a higher evaluation. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). In the present case, VA examinations have shown that the Veteran has retained range of motion in all planes and ankylosis has never been clinically diagnosed. It was particularly ruled out as recently as June 2012. Accordingly, an evaluation in excess of 40 percent cannot be established. Here there is no competent evidence at any point during the period after July 31, including VA examinations, private records and VA outpatient treatment that the Veteran's lumbar disability was ever manifested by unfavorable ankylosis of the entire thoracolumbar spine, which is the requirement for a higher rating of 50 percent. Furthermore, the Board has considered the Veteran's complaints of functional impairment, pain, and pain on motion. See DeLuca. However, none of the VA examinations or any of the evidence reflect the functional equivalent of ankylosis of the thoracolumbar spine, which is required to warrant a higher evaluation. Here, the evidence has established limitation of motion accompanied by pain; nevertheless, the Veteran retains a fair deal of mobility in flexion, extension, lateral bending, and rotation, even with consideration of flare-ups. In evaluating the Veteran's claim, the application of a higher disability evaluation based on functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 , 4.45 and 4.59 has been considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has significant complaints of pain and functional impairment in the low back. A VA examiner has stated that the Veteran's low back exhibits less movement than normal, weakened movement, excess fatigability, and pain on movement. However, this functional impairment is considered by the currently assigned 40 percent disability evaluation. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Also in June 2012, it was noted that the Veteran had no excess fatigability or incoordination. The Board also acknowledges the Veteran's reports of symptomatology in the lower extremities, and notes that he has been service-connected for sciatic neuropathy of both lower extremities and for erectile dysfunction, effective from December 1, 2009. Moreover, the evidence does not demonstrate, and the Veteran does not assert, that there is any other possibly associated neurologic abnormality that could be evaluated, e.g. bowel or bladder impairment. Id. Accordingly, as the preponderance of the evidence is against the claim, it must be denied. Gilbert, supra. In sum, the evidence fails to demonstrate, at any point during the relevant period, that the Veteran's service connected lumbar spine disorder has ever manifested by ankylosis to support an evaluation in excess of 40 percent. Hart, supra. Credibility With respect to the Veteran's increased rating claim, during the entire appeal period, the Board has also considered his lay statements that his disability is worse. His statements focus primarily on his level of pain. The Board has also considered the multiple lay statements submitted by his co-workers and his wife in 2007 in support of his claim. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). As well, his co-workers and his wife are competent to report their observations. However neither the Veteran nor his lay witnesses is competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Extraschedular Consideration An extraschedular disability rating will be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's lumbar condition with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his low back disability. There is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the schedule for rating disabilities. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009).the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The claim regarding a TDIU is addressed in the remand below. ORDER An increased disability rating in excess of 10 percent for service-connected degenerative disc disease L4-L5 from November 3, 2005, to February 2006 and in excess of 20 percent for service-connected degenerative disc disease L4-L5 from February 2006 to July 30, 2007 is denied. A separate disability rating of 10 percent for decreased sensation of the left foot and ankle pain, associated with the service-connected spine disability, is granted. A separate disability rating of 10 percent for decreased sensation of the right foot and ankle, associated with the service-connected spine disability, is granted. An increased disability rating for service-connected degenerative disc disease L4-L5, currently rated as 40 percent disabling, from July 31, 2007 is denied. REMAND Reasons for Remand: To obtain another VA examination and an opinion. The record reveals that in a June 2012 addendum opinion to a November 2010 VA examination, a VA examiner opined that the Veteran's service-connected disabilities do not render him unemployable. The rationale was that the Veteran was currently employed by the US Postal Service in a permanent restricted capacity due to his lumbar problems. It was stated that therefore, since he is currently working, he demonstrates the ability to obtain and retain a job without difficulty. In July 2012, the Veteran's representative submitted a Notification of Personnel Action effective June 2012 indicating that the Veteran was retiring. As the circumstances of the Veteran's employment have changed and the rationale provided was based solely on him being employed, the Board finds that the Veteran should be re-examined and another opinion regarding his employability should be provided. The appellant is hereby notified that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following development: 1. Obtain and associate with the claims file all current VA treatment records not already contained in the claims file. 2. Then, schedule the Veteran for VA examination(s) to determine the nature and extent of his service connected disorders. The claims file and any pertinent evidence in Virtual VA must be reviewed by the examiner(s) in conjunction with the examination(s). If the examiner(s) does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be made available to the examiner for review. The examiner(s) should elicit a history from the Veteran regarding his recent employment and examine the Veteran thoroughly. After reviewing the file, noting the Veteran's reported history, and examining the Veteran, the examiner(s) should render an opinion as to whether the Veteran is precluded solely by reason of his service-connected disabilities from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. The examiner(s) is advised that only symptoms related to the Veteran's service-connected disabilities should be considered in determining whether the Veteran is precluded from obtaining and maintaining employment. Symptoms related to nonservice-connected disabilities should not be considered in this determination. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (2012); See also Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, readjudicate the claim on appeal considering all of the evidence of record. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs