Citation Nr: 1307313 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 08-09 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative osteoarthritis of the lumbosacral spine, prior to February 12, 2009. 2. Entitlement to a rating in excess of 40 percent for degenerative osteoarthritis of the lumbosacral spine, from July 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran had active military service from February 1987 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The September 2006 decision granted a separate 10 percent rating for degenerative osteoarthritis of the lumbosacral spine effective March 31, 2005. Previously, a single 10 percent rating had been assigned for arthritis of the hips and the lumbosacral spine. After the Veteran appealed the decision, the RO through a March 2008 rating decision increased the evaluation for degenerative osteoarthritis of the lumbosacral spine to 20 percent, also effective March 31, 2005. Subsequently, in a September 2009 rating decision, the RO awarded a temporary total (100 percent) disability for convalescence from back surgery effective from February 12, 2009, to June 30, 2009. Thereafter, a 20 percent schedular rating was assigned. In October 2009, the RO increased the rating to 40 percent effective September 24, 2009. In a May 2011 rating decision, the RO revised the effective date of the 40 percent rating to July 1, 2009. Regardless of the aforementioned incremental increases in disability compensation for the Veteran's lumbosacral spine disorder, the maximum available benefit has not been awarded, nor has the Veteran indicated satisfaction with this award, and hence, the claim for increase remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise) Through his March 2008 Substantive Appeal the Veteran requested hearings before both the Board and the RO. In July 2008, he indicated that he did not want a Board hearing, but only a local RO hearing. However, in September 2009, he withdrew this hearing request as well. See 38 C.F.R. § 20.704(e) (2012). Upon initial consideration of this case in April 2012, the Board remanded it for further development and consideration. Following completion of the remand objectives, the matter has since returned to the Board for appellate disposition. Moreover, in November 2012, the Veteran provided additional evidence to the Board (comprised of medical records), with an accompanying waiver of RO initial consideration as the Agency of Original Jurisdiction (AOJ). See Post-Remand Brief, dated January 2, 2013. This new evidence is hereby accepted for inclusion in the record. See 38 C.F.R. §§ 20.800, 20.1304 (2012). FINDINGS OF FACT 1. For the time period prior to February 12, 2009, the Veteran's lumbosacral spine disorder was not manifested by loss of forward flexion to 30 degrees or greater. 2. Since July 1, 2009 (following the expiration of a temporary total rating), the Veteran's condition has not involved ankylosis, as there has been substantial retained mobility of the thoracolumbar spine. 3. The Veteran has not manifested incapacitating episodes of Intervertebral Disc Syndrome (IVDS). 4. Since March 31, 2005, the Veteran has manifested symptoms approximating left lower extremity radiculopathy that is mild in degree. CONCLUSIONS OF LAW 1. The criteria are not met to establish a higher rating than 20 percent for degenerative osteoarthritis of the lumbosacral spine prior to February 12, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5237 (2012). 2. The criteria are not met to establish a higher rating than 40 percent for degenerative osteoarthritis of the lumbosacral spine since July 1, 2009 (following the expiration of a temporary total rating). 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5237 (2012). 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish a separate 10 percent rating for left lower extremity radiculopathy associated with degenerative osteoarthritis of the lumbosacral spine, as of March 31, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2012). The RO has informed the Veteran of what evidence would substantiate his claims for increased rating through VCAA correspondence dated from May 2005 that notified him as to each element of satisfactory notice set forth under the Pelegrini II decision. The VCAA notice further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, including that VA would undertake reasonable measures to assist in obtaining further VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the VCAA notice correspondence was issued prior to the September 2006 RO rating decision adjudicating the increased rating claim being decided, and therefore met the criteria for timely notice. The RO (including through the Appeals Management Center (AMC)) has taken appropriate action to comply with the duty to assist the Veteran through obtaining VA and private treatment records. The Veteran has also undergone several VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The RO/AMC further complied with the terms of the prior Board remand by requesting the Veteran's authorization to obtain medical records from those private treatment providers he had previously identified, obtaining more recent VA medical records, and arranging for an updated VA Compensation and Pension examination. In furtherance of his claims, the Veteran has provided private treatment records, and copies of lay statements from other individuals. The Veteran previously requested a hearing before RO personnel, but cancelled this proceeding beforehand. The record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's service-connected degenerative osteoarthritis of the lumbosacral spine has been evaluated at 20 percent disabling prior to February 12, 2009, then at a temporary 100 percent rate up until June 30, 2009 (see 38 C.F.R. § 4.29), and thereafter at 40 percent disabling since July 1, 2009. The assigned schedular ratings (aside from the temporary total rating) were provided for under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (for lumbosacral or cervical strain). He filed the current claim for increased rating in March 2005. Under applicable rating criteria, this disability is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range 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; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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. The next higher available 40 percent rating is made for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Medical evidence contemporaneous with when the Veteran filed his March 2005 claim for increase includes private treatment records from April 2005, which indicate that the Veteran reported back and leg pain. It was known the Veteran had degenerative spinal disease, and it was suspected there was more going on in the way of nerve root involvement. The diagnosis given at that point was lumbar pain, radiculopathy, degenerative joint disease, and degenerative disc disease lumbar spine. He was seen again in July 2006 for continued low back and leg pain. He had reinjured the back a few days ago to the point where now he was walking bent over with a cane, and could barely move. He had been having a lot of back trouble over the previous 14 months. The Veteran underwent VA Compensation and Pension examination of the spine in August 2006, upon which he described having to seek medical attention in April 2005 after a flare-up following an episode of moving furniture. In July 2006 he had his last episode, where the pain seemed to change, becoming more central, with less problems down the leg. On objective examination, range of motion consisted of forward flexion to 80 degrees, stopping at 80 degrees due to pain; extension to 30 degrees; right lateral rotation 30 degrees; left lateral rotation 60 degrees; right and left lateral flexion to 50 degrees. With regard to any additional limitation of function due to repetitive use or flare-ups, this could not be determined without resorting to mere speculation. Musculoskeletal strength was 5/5, and deep tendon reflexes were symmetric to both lower extremities. The Veteran was able to heel and toe walk without problems, and gait was normal. There were no apparent sensory dyscrasias. A recent x-ray had shown, per radiology, minor aging changes with no marked degenerative changes anteriorly. The diagnosis was degenerative arthritis of the spine with disk disease. Records from the Veteran's employer, the postal service, document an August 2006 on-the-job lower back injury while completing maintenance on a vehicle. In his October 2006 lay statement, the Veteran explained that his job did not require much heavy physical activity, but it had gotten to the point where he had to depend on others to do the physical work for him that he should have been able to do himself. He could not lift heavy parts, even with a partner, without pain. Climbing ladders and twisting, which was required in his job, caused pain, and he had missed more work days than he used to because of his back. In October 2006, the Veteran provided various lay statements in support of his claim, one statement being from his sister who indicated that the Veteran's physical health had declined noticeably through the years and especially in the past couple of years, as the pain in his lower back had become more severe. His ability to play with his niece and nephew had greatly diminished and his mobility had become extremely limited. Another statement from a friend recounted that he used to work out with the Veteran up until three years previously, which the Veteran stopped due to back pain. Another statement from a co-worker attested to a noticeable increase in the Veteran's back problems, with more limitations in his ability to crawl, climb, or use the machines and equipment that they were assigned to complete maintenance on. Lifting moderately heavy parts or tools caused pain the Veteran's lower back, and his mobility had noticeably declined. Treatment records from other private clinics include an October 2007 evaluation which noted a multi-year history of chronic back pain and now pain and numbness down the left leg. The numbness was the predominant symptom in the distal calf. The back pain was the worst overall painful component, and was worsening over time. Thus far, the Veteran had tried modified lifestyle, physical therapy, a TENS unit, lumbar bracing corset, and an epidural with no improvement. He had not undergone any facet blocks. There was no associated bowel or bladder dysfunction. Objectively, the thoracolumbar spine showed limited range of motion due to pain, spasm and stiffness. The extremities were neurologically intact, with no identified neurologic damage or deficit notable. There was numbness in the left leg. An MRI of the lumbar spine showed two level lumbar degenerative disc disease, disc bulging, facet arthritis, and no instability. The impression given was lumbar degenerative disc disease; lumbar facet arthritis; lumbar radiculopathy, left leg; and lumbar low back pain. Meanwhile, an October 2007 clinical evaluation by a private neurologist, resulted in the impression of lumbar spondylosis without myelopathy. Thereafter, the record reflects that in May 2009 the Veteran underwent an exploratory procedure for possible spinal fusion. The Veteran's complaints were unchanged throughout, and he described in part a deep burning sensation in the medial and lateral left thigh, as well as left subpatellar pain since surgery. An August 2009 letter from the Veteran's employer states that he had known the Veteran since 1999, and considered the Veteran to be one of the best technicians available, with the exception of that year due to health problems. In the last two years the Veteran had missed work on numerous occasions because of his back problems. The Veteran's recovery had been slow following surgery that year, and the Veteran was still under doctor's care and was back to work with restrictions. The Veteran was being utilized at that time in an advisory capacity, not to full capacity, which required his co-workers to cover for him. Upon VA re-examination of September 2009, the Veteran described sleep difficulties, problems showering and driving, and other limitations in activities of daily living. As regarded his usual occupation, he was on light duty and had significant limitations involving lifting, bending, crawling, twisting and prolonged sitting. It was anticipated that these restrictions might be altered as recovery occurred. His main symptom was constant, bilateral lumbar and left sacroiliac pain. Objectively, inspection revealed flattened lumbar lordosis. There was muscle spasm, which was confirmed on lateral bending. There was generalized tenderness in the lumbar region in the vicinity of post-surgical scars. Active lumbar range of motion on three repetitions, consisted of forward flexion to 12 degrees, extension to 5 degrees, 10 degrees lateral tilt bilaterally with none of the motion occurring in the lumbar spine, all the thoracic; and rotation right and left limited to 10 degrees bilaterally. The effort expended was satisfactory and there was no significant symptom magnification. Reflexes were 2+ ankles and knees. There was no Babinski, no clonus. There was slight weakness of the left anterior tibialis, and all other motor functions in the lower extremities were 5/5. Decreased sensation was present in L4, left, slight. Straight leg raising was positive at 30 degrees bilaterally, accentuated with cervical flexion and also with foot dorsiflexion. Pain and behavior were appropriate for pathology, range of motion was appropriate for pathology, and bracing while sitting was consistent for pathology. There was no painful motion, tenderness, spasm, edema, fatigability, lack of endurance, weakness or instability. There was no loss of function with repetitive use, except as noted. Loss of function due to flare-ups could not be determined without resorting to mere speculation. X-rays demonstrated L4 to S1 posterior lumbar interbody fusion (PLIF). The diagnosis was lumbar disc deterioration, Le-L5, status post PLIF. The Veteran had had complications with screw placement and left L3-L4 nerve root injury [from prior surgical history]. He was in the postoperative recovery phase and his condition was not at a steady state at this point, as he had not yet reached the maximum medical improvement. He did have a significant limitation of function and moderate level of disability. The April 2011 evaluation report from another private clinic indicates, in pertinent part, that the Veteran had decreased range of motion in all quadrants of the lumbar spine, while there were some sensory and reflex deficits in the left lower extremity. The impression was status post lumbar fusion, and lumbar radiculopathy. The treating physician further commented that despite the fusion, the Veteran continued to have some fairly significant symptoms and limitations in the left lower extremity. He described specifically weakness and falls because of the lower extremity. He was not considered a candidate for additional surgical intervention. On VA examination again in June 2011, the Veteran's surgical history was clarified as to include a February 2009 lumbar fusion surgery, that worsened his overall condition, and May 2009 revision of the L4-L5 fusion that improved his condition. The Veteran described chronic pain of the left side of the low back, and upon getting fatigued would notice a tight sensation from the low back across the hip and anterior aspect of the left leg into the knee. Twice weekly he would have a flare-up described as increasing intensity of pain to 8/10, with pain into the left knee. The Veteran reported that he was more likely to stumble when this occurred. Upon physical examination, gait and posture were normal, and there was no need for assistive devices. Lower body strength testing was 5/5, except for 4+/5 dorsi-flexors. As to sensory perception, the Veteran reported subjective difference in light touch sensation over the left knee as compared to the right, however, the ability to feel light touch was intact in the bilateral lower extremities. Thoracolumbar spine range of motion after three repetitions was forward flexion 0 to 30 degrees, with pain reported at 10 degrees; extension to 10 degrees; lateral flexion to 20 degrees on the right, and 18 degrees on the left; and lateral rotation, 30 degrees bilaterally. Range of motion was limited by reported pain and stiffness. There was reported tenderness to light palpation over the low back paraspinal muscles. There was no deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing, except as noted. There was no loss of function with repetitive use, except as noted. Loss of function due to flare-ups could not be determined without resorting to mere speculation. The diagnosis given was degenerative arthritis of the lumbosacral spine L4-L5 and L5-S1 without objective evidence of radiculopathy with mild functional limitations. The VA re-examination of May 2012 indicated that the Veteran reported no impediment to usual occupation, except that he was unable to lift heavy weights, and had limitations upon twisting or bending. There was no physician prescribed bedrest or incapacitation in the last 12 months. He stated that his symptoms at the time were essentially pain in the lower back and in his hips. His left leg did not want to respond to walking or other movements. He stumbled and fell a lot at work. His upper back was also hurting now. He referred needing assistance getting in and out or going up or down, especially at work. Physical examination revealed normal posture, and a gait with a wide base and slightly "robotic." He sometimes used a cane as an assistive device, but was able to ambulate without it. In the lower extremities, strength was +4/5 on the left side, versus +5/5 on the right. There was no gross sensory deficit noted, and coordination was fine. An EMG study of the lower extremities found no significant abnormalities, with no evidence of any significant acute or chronic denervation noted. Range of motion testing showed forward flexion to 40 degrees; extension to 30 degrees; lateral flexion bilaterally to 30 degrees; and bilateral rotation bilaterally 30 degrees, all with no further objective evidence of limitation due to painful motion. The VA examiner commented that the Veteran's weakness and incoordination claim was denied by normal EMG, and that decreased range of motion was most likely due to increased body mass index, deconditioning and lack of effort, than by the service-connected condition. The diagnosis given was degenerative disc arthritis of the lumbosacral spine L4-L5 and L5-S1, without radiculopathy, as evidenced by a negative EMG study. Reviewing the findings presented before the Board, the objective criteria for assignment of any higher disability evaluation for the Veteran's service-connected degenerative osteoarthritis of the lumbosacral spine have not been met, on the basis of orthopedic manifestations alone. Considering the preliminary timeframe under consideration of prior to February 12, 2009, the Board finds initially that 20 percent continues to represent the appropriate disability rating. To this effect, under the applicable rating criteria, the next higher evaluation of 40 percent is to be assigned when there is present forward flexion of the thoracolumbar spine 30 degrees or less. The primary source of evidence as to lumbosacral spine mobility consists of the August 2006 VA Compensation and Pension examination report, which indicated forward flexion of the spine to 80 degrees -- well in excess of the requirement for a higher rating. The VA examiner could not further verify whether there was any additional limitation of motion due to repetitive use or flare-ups, and such information would have been helpful inasmuch as the Veteran's musculoskeletal arthritic condition is rated according to limitation of motion, and any further limitation occasioned by functional loss from repetition, pain, weakness, etc., is directly relevant. DeLuca, supra; 38 C.F.R. § 4.45, 4.59. Regardless, the Board's review is nonetheless constrained by the record before it. Inasmuch as the objective measurement of forward flexion was all the way to 80 degrees before consideration of functional loss though, it would also seem highly unlikely that such profound additional lost motion by functional loss would manifest to bring forward flexion down to 30 degrees of less (as the requirement for the next higher available rating). Moreover, the Board readily acknowledges the ongoing treatment history for low back pain, as well as the competent lay statements of symptomatology offered. Whereas these are probative and credible accounts of the Veteran's condition, unfortunately, they do not qualify as the type of definitive evidence that would establish limitation of forward lumbar flexion to 30 degrees of less, prior to February 12, 2009. The Veteran did not undergo VA examination again until September 2009 (after expiration of the temporary total rating), which is the present basis for the increased rating to 40 percent. On the limited record before it, therefore, the Board must continue the assignment of a 20 percent evaluation for service-connected disability on orthopedic symptomatology, before February 12, 2009. Turning to the next timeframe under consideration, the Board also is constrained to deny the claim for higher than a 40 percent rating from July 1, 2009. The applicable rating criteria premised upon orthopedic disability expressly requires a showing of ankylosis of the spine, which is inherently the total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) (both indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). As reflected in the most recent VA examination report of May 2012, the Veteran had a considerable degree of retained mobility of the thoracolumbar spine, including in all planes of motion objectively measured. Therefore, the preliminary condition of ankylosis does not apply, and a rating higher than 40 percent under the General Rating Formula for spinal disorders cannot be supported. The Board for the entire timeframe under consideration has likewise considered the merits of other potentially applicable rating criteria, including that pertaining to Intervertebral Disc Syndrome, given the ongoing diagnosis of degenerative disc disease. IVDS is to be evaluated based on the frequency and severity of "incapacitating episodes" (defined as requiring physician prescribed bedrest). See 38 C.F.R. § 4.71a, Diagnostic Code 5243. On this subject, however, the Veteran has not manifested any characteristic incapacitating episodes during the time period under review, particularly as confirmed by the last VA examination of record. However, the Board does ascertain a tenable basis under the law to assign a separate compensable evaluation for left lower extremity radiculopathy. Whereas the most recent VA examination ruled out radiculopathy on an EMG study, the Board nonetheless observes there has been a consistent and compelling account of neurological symptomatology in the left lower extremity from the Veteran over several years now, and numerous private treatment providers have likewise diagnosed the condition. A significant component of the evidence weighs in the Veteran's favor on the issue of neurological symptomatology, and therefore all reasonable doubt on the matter should be resolved in his favor. See 38 C.F.R. § 4.3. Consequently, a separate 10 percent rating for mild left lower extremity radiculopathy is granted, effective March 31, 2005 (the date of claim for increased rating). A rating in excess of 10 percent is not warranted, as moderate incomplete paralysis has not been demonstrated at any time. On most recent VA examination in May 2012, reflex and sensory examination of the lower extremities was normal. Likewise, on VA examination in September 2006, strength was 5/5 and deep tendon reflexes were symmetric in the lower extremities. Meanwhile, aside from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must 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 is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, 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. In this case, there initially is no basis to find that the Veteran's lumbosacral spine disorder (and all associated components) presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms as presented, including from his descriptions upon VA examination and on other occasions. To the extent the Veteran has any distinctly ratable neurological impairment, this has been recognized through a separate compensable evaluation for his left side lower extremity radiculopathy. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claims for higher rating for a lumbosacral spine disorder on grounds of orthopedic disability, though assigning a separate compensable evaluation for left lower extremity radiculopathy. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claims under review. To the extent any higher level of compensation is sought, the preponderance of the evidence is against the claims, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A rating in excess of 20 percent for degenerative osteoarthritis of the lumbosacral spine prior to February 12, 2009 is denied. A rating in excess of 40 percent for degenerative osteoarthritis of the lumbosacral spine from July 1, 2009 is denied. A separate 10 percent rating for left lower extremity radiculopathy associated with degenerative osteoarthritis of the lumbosacral spine is granted, effective March 31, 2005, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs