Citation Nr: 1307446 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 05-08 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased rating for a back disability, assigned a 10 percent rating prior to September 11, 2009, and 20 percent disabling thereafter. 2. Entitlement to an increased rating for gastroesophageal reflux disease with hiatal hernia (digestive disability), currently rated 10 percent disabling. ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to July 1998, with additional unverified service of three years and six months. This matter came to the Board of Veterans' Appeals (Board) from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In August 2002, the Veteran submitted a claim for an increased rating for service-connected back disability. In April 2003, the RO denied the claim. He disagreed. In April 2010, the RO increased the rating to 20 percent effective September 11, 2009. A rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, as the Veteran has not withdrawn the appeal, the issue remains in appellate status. In March 2007, the Veteran testified before a Decision Review Officer (DRO); a transcript of that hearing is of record. The Veteran's claim was previously remanded by the Board in July 2010 for further procedural development of notifying the Veteran of the requirements to establish entitlement to extra-schedular evaluations for back disability and digestive disability. This was accomplished, and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In June 2012, the Board requested an opinion from the Veteran's Health Administration (VHA) regarding medical questions presented in this case. An August 2012 VHA opinion was received by the Board, and a copy of the VHA opinion was provided to the Veteran. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court suggested that a TDIU claim may be part and parcel of an increased rating claim in the situation in which a Veteran is filing for an increased rating for a service connected disability and alleges that the service connected disability has caused him to be unemployable. In this case, the record does contain some evidence suggesting the Veteran may be unemployable due to his service-connected disabilities. For example, in December 2007, the Veteran stated that due to his service connected disabilities he could not work any longer. However, it is important to note that the Veteran does not allege that any one disability renders him unemployable; instead, he has argued that the totality of his service connected disabilities have rendered him unable to work. This point is not disputed though as the Veteran has received a total schedular rating since May 2007. As such, the Board does not find that an informal claim for TDIU has been raised, or if one was it has become moot by virtue of the fact that the Veteran is both receiving a 100 percent schedular rating and has not sought special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). The issue of an increased rating for a digestive disability, currently rated 10 percent, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the increased rating period prior to September 11, 2009, the Veteran's service-connected back disability was manifested by muscle spasms on extreme forward bending and loss of lateral spine motion; but it was not shown that his back disability caused severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; severe limitation of motion or forward flexion to 30 degrees or less; incapacitating episodes of intervertebral disc syndrome, severely disabling intervertebral disc disease, or pronounced intervertebral disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings; any neurologic impairment; or ankylosis of the spine 2. For the increased rating period from September 11, 2009, the Veteran's service-connected back disability was shown to be manifested by forward flexion of the thoracolumbar spine that was functionally limited to 30 degrees; but the Veteran's back disability was not shown to cause ankylosis of the spine, incapacitating episodes of intervertebral disc syndrome which required prescribed bed rest; pronounced intervertebral disc disease; any neurologic impairment; or ankylosis of the spine. CONCLUSIONS OF LAW 1. For the appeal period prior to September 11, 2009, resolving all reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 20 percent, but no higher, for back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes 5292, 5295 (as in effect prior to September 26, 2003); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.31, 4.71a, Diagnostic Codes 5003, 5021, 5237, 5242 (2012). 2. For the appeal period from September 11, 2009, resolving all reasonable doubt in the Veteran's favor, the criteria for an increased disability rating of 40 percent, but no higher, for back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes 5292, 5295 (as in effect prior to September 26, 2003); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.21, 4.31, 4.71a, Diagnostic Codes 5003, 5021, 5237, 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issue decided herein. The RO sent the Veteran a letter in October 2002 that informed him of the requirements needed to establish an increased evaluation for lumbar spine disability. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran. The Veteran has been afforded adequate examinations on the issue of an increased rating for service-connected back disability. VA provided the Veteran with examinations in November 2002, April 2005, and September 2009. Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted, to include obtaining X-rays. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such painful motion, weakness, impaired endurance, incoordination, or instability. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issue of an increased rating for service-connected back disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, neither the Veteran nor his representative have voiced any challenge to the adequacy of the Veteran's VA examinations. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Rating Legal Criteria 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; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 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 a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that 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). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Service connection has been established for a back disability. The RO evaluated the Veteran's back disability as 10 percent disabling initially under 38 C.F.R. § 4.71a, former DC 5295, pertaining to lumbosacral strain. Alternatively, the Veteran's back disability may be evaluated under 38 C.F.R. § 4.71a, former DC 5292, pertaining to limitation of motion. Under the criteria in effect prior to September 26, 2003, lumbosacral strain was rated under DC 5295 and limitation of motion of the lumbar spine was rated under DC 5292. A noncompensable rating was warranted for lumbosacral strain where there were slight subjective symptoms only. A 10 percent rating was warranted for lumbosacral strain where there was characteristic pain on motion. A 20 percent rating was warranted where there was muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in standing position. A 40 percent (maximum) rating was warranted for severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (prior to September 26, 2003). Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warranted a 10 percent rating if slight, a 20 percent rating if moderate, and a 40 percent (maximum) rating if severe. 38 C.F.R. § 4.71a, DC 5292 (prior to September 26, 2003). No definition was provided for "slight", "moderate", or "severe". However, when the new regulations came into effect in 2003, they provided numerical ranges of normal motion, which can provide guidance in interpreting words such as slight. Normal motion has been defined by the revised regulations as forward flexion of the thoracolumbar spine from zero to 90 degrees, extension from zero to 30 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from 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, and the normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Under 38 C.F.R. § 4.71a, DC 5293 for intervertebral disc syndrome (IVDS), a 10 percent rating was assigned when there was evidence of mild intervertebral disc disease, a 20 percent rating was assigned when there was evidence of moderate intervertebral disc disease with recurring attacks; a 40 percent rating was assigned when there was evidence of intervertebral disc disease which was severely disabling with recurring attacks and intermittent relief; and a 60 percent rating was assigned when there was evidence of pronounced intervertebral disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. VA revised the criteria for evaluation of diseases and injuries of the spine, effective on September 26, 2003 (see 68 Fed. Reg. 51454-51456 (August 27, 2003)). VA has a duty to adjudicate the claim under the former criteria during the entire appeal period, and to consider the revised criteria for the period beginning on the effective date of the new provisions. DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); see also VAOPGCPREC 3-2000 and VAOPGCPREC 7-2003. Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03. However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C.A. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under current VA regulations, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include lumbosacral, thoracic, and cervical strain (DC 5237). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 disability rating is provided for unfavorable ankylosis of the entire cervical spine; for, forward flexion of the thoracolumbar spine 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that 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) provides that, 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. 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3) provides that, 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) instructs to round each range of motion measurement to the nearest five degrees. Note (5) provides that, 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 (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The DCs for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome. Alternatively, when intervertebral disc syndrome is present (preoperatively or postoperatively), it may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. DC 5010 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. The Veteran's claim for an increased disability rating for service-connected back disability, currently before the Board, was received in August 2002. The April 2003 rating decision on appeal denied an increased rating for back disability. Because the Veteran's claim was filed before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 4.71a in effect before the change, which the Board finds is more favorable to the claimant for the period prior to September 11, 2009, because it results in a higher 20 percent increased rating for the claim for lumbar spine disability, and applies to an earlier period of the increased rating appeal from August 2002 to when the new rating criteria became effective on September 26, 2003. See 38 U.S.C.A. § 5110; Kuzma, 341 F.3d 1327 (holding that, if the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change). Increased Rating Prior to September 11, 2009 On review of all the evidence, lay and medical, the Board finds that, for the rating period prior to September 11, 2009, the Veteran's back disability was manifested by muscle spasm on extreme forward bending and loss of lateral spine motion and hence warrants a 20 percent rating for his service connected back disability. X-rays of the Veteran's lumbar spine in May 2002 were reported as normal. A September 2002 VA treatment record reflected that the Veteran was being prescribed Cyclobenzaprine for neck spasms. At a November 2002 VA spine examination, the Veteran reported chronic back spasms and low back pain. The Veteran stated that he experienced increased pain in his lower back with rotation, but he denied using any devices for his back. Specifically, the Veteran reported significant increase in pain and spasms with repetitive forward flexion and repetitive rotation. He also reported experiencing weakness, stiffness, lack of endurance, and fatigability in his back. Range of motion testing in November 2002 revealed that the Veteran's forward flexion was 0 to 80 degrees. Extension was 0 to 20 degrees. Bilateral lateral flexion was 0 to 42 degrees, with pain. Right rotation was 0 to 55 degrees, with pain. Left rotation was 0 to 60 degrees, with pain. Deep tendon reflexes were 4/4 bilaterally; straight leg raises were negative at 90 degrees both sitting and supine; and neurosensory testing was intact distally to all digits. The Veteran had 5/5 strength in both lower extremities without weakness. The VA examiner reported no palpable or visible spasms of the lumbar area. The VA examiner diagnosed chronic lumbosacral strain secondary to trauma superimposed on moderate degenerative joint disease of the lumbar spine. The VA examiner estimated that during flare-ups, the Veteran would lose an additional 25 to 30 degrees of range of motion of the spine secondary to pain, fatigability, lack of endurance, decreased strength, weakness, and muscle spasm, particularly with lateral and rotational flexion. At an April 2005 VA joints examination, the Veteran reported low back pain, but denied any incapacitating episodes or use of any assistive devices for ambulation. On physical examination no muscle spasms were seen. Range of motion testing revealed forward flexion from 0 to 90 degrees. Extension was 0 to 10 degrees. Bilateral lateral flexion was 0 to 20 degrees. Bilateral rotation was 0 to 60 degrees. The VA examiner reported negative straight leg, negative crossover, negative Patrick-Fabere, and negative cervical bounce test. Strength and sensation testing was normal in the lower extremities. The VA examiner diagnosed chronic lumbar strain with early degenerative disc disease confirmed by x-rays. The VA examiner opined that upon repetition, the Veteran lost between 15 and 20 percent of his range of motion, strength, coordination, and fatigability of the lumbar spine. A May 2005 VA "Pharmacy Note" reflected that the Veteran was being prescribed Cyclobenzaprine for muscle spasms. During the March 2007 DRO hearing, the Veteran testified that he had experienced muscle spasms in his back since service. On review of all the evidence, lay and medical, the Board finds that, for the increased rating period prior to September 11, 2009, the Veteran's back disability manifested muscle spasm on extreme forward bending and loss of lateral spine motion which is commensurate with a 20 percent rating. For example, at his November 2002 VA examination, the Veteran reported a significant increase in pain and spasms, and the examiner confirmed that during flare-ups, the Veteran would lose an additional 25 to 30 degrees of range of motion of the spine secondary to pain, fatigability, lack of endurance, decreased strength, weakness, and muscle spasm. While muscle spasms were not actually physical confirmed on either VA examination, the Veteran is considered competent to describe the presence of a symptoms such muscle spasms which are not a determination "medical in nature" and are therefore considered to be capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here the Veteran's reports of having experienced muscle spasms are found credible and are supported by the fact that he was prescribed medication for muscle spasms throughout the appeal period prior to September 11, 2009. However, a rating in excess of 20 percent is not warranted for the Veteran's back disability prior to September 2009. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent under the lumbar spine criteria in effect when his claim was received, because the lay and medical evidence does not reflect listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, or severe limitation of the lumbar spine, as required for the higher 40 percent rating under 38 C.F.R. § 4.71a, DCs 5292, 5295 (prior to September 26, 2003). The record simply does not describe any listing of the spine or Goldthwaite's sign; and the Veteran does not allege otherwise. Moreover, the Veteran demonstrated considerable range of motion at his VA examinations in November 2002 and April 2005, including nearly full forward flexion. As such, marked limitation of forward bending was not shown. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the VA examiner did note in 2002 that during flare-ups, the Veteran could lose an additional 25 to 30 degrees of range of motion of the spine secondary to pain, fatigability, lack of endurance, decreased strength, weakness, and muscle spasm, particularly with lateral and rotational flexion. Similarly, the VA examiner in 2005 opined that upon repetition the Veteran lost between 15 and 20 percent of his range of motion, strength, coordination, and fatigability of the lumbar spine. However, even taken at its extreme at both examinations, the Veteran still demonstrated at least 80 degrees of forward flexion, and thus, even if he lost 25 to 30 degrees of motion or 15 and 20 percent of his range of motion, he would not be considered to have severe limitation of motion and it was not shown that the forward flexion of his back was functionally limited to 30 degrees or less. As such, the Board does not find that the Veteran's range of motion is so functionally limited so as to warrant a rating in excess of 20 percent based on limitation of motion. The evidence also fails to show either severe or pronounced intervertebral disc syndrome so as to warrant a rating under 38 C.F.R. § Diagnostic Code 5293 (2002), as intervertebral disc syndrome was simply not described by the evidence of record. The Veteran would also not be entitled to an increased disability rating in excess of 20 percent under the new lumbar spine rating criteria, for the rating period from September 26, 2003 (effective date of new rating criteria) to September 11, 2009. As noted above, a rating in excess of 20 percent is not warranted based on limitation of motion. There is no indication in the medical records, and the Veteran has not contended otherwise, that he has been prescribed bed rest at any time during the course of his appeal to treat incapacitating episodes of intervertebral disc syndrome. The evidence also does not show neurological impairment and thus the criteria for a separate rating for neurological abnormality have not been met. For example, at the November 2002 VA examination, deep tendon reflexes were 4/4 bilaterally; straight leg raises were negative at 90 degrees both sitting and supine; and neurosensory testing was intact distally to all digits. The Veteran also demonstrated 5/5 strength in both lower extremities without weakness. At his 2005 examination, the Veteran had negative straight leg, negative crossover, negative Patrick-Fabere, and negative cervical bounce test. Strength and sensation testing was also determined to be normal in the lower extremities There has also not been any finding of ankylosis of the spine at any point during the course of the Veteran's appeal. As such, a 20 percent rating is warranted prior to September 2009 and to that extent, the Veteran's claim is granted. Increased Rating from September 11, 2009 On review of all the evidence, lay and medical, the Board finds that, for the increased rating period from September 11, 2009, the Veteran's back disability manifested forward flexion of the thoracolumbar spine 30 degrees or less, and is therefore warranting of a 40 percent rating. Specifically, at a September 2009 VA spine examination, the Veteran reported muscle spasms in his back since the 1970s. He reported flare-ups four times per week, where his disability was worse than normal, and that he stopped working primarily due to his service-connected disabilities. The Veteran also reported functional limitations of limited walking and occasionally used a cane for ambulation. The VA examiner reported that the Veteran ambulated with a slightly stiff back and antalgic type gait. The VA examiner further reported that upon repetitive motion, the Veteran developed some muscle spasm across the thoracolumbar spine. A VA range of motion summary in September 2009 indicated that the Veteran's forward flexion was 0 to 45 degrees. Extension was 0 to 20 degrees. Bilateral lateral flexion was 0 to 15 degrees. Bilateral rotation was 0 to 45 degrees. The VA examiner reported negative straight leg, negative crossover, negative Patrick-Fabere, and negative cervical bounce test. The VA examiner diagnosed chronic lumbar strain. The VA examiner opined that with repetition, forward flexion was limited to 30 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral rotation to 45 degrees, and was also likely to lose strength and endurance with a flare-up. On review of all the evidence, lay and medical, the Board finds that since September 11, 2009, the forward flexion or the Veteran's back disability has been functionally limited to 30 degrees. While the Veteran was able to demonstrate range of motion in excess of 30 percent on testing, the examiner indicated that repetitive motion so limited the Veteran's motion that it was effectively restricted to 30 degrees. In reaching this conclusion, the Board has relied upon the evidence of additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in); 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. Based upon these findings, and resolving reasonable doubt in the Veteran's favor, the Board finds the assignment of a 40 percent rating for back disability, but no higher, is warranted for the increased rating period from September 11, 2009. The Board finds that the Veteran would not be entitled to an increased disability rating in excess of 40 percent at any point during the course of the appeal, under either the old or new lumbar spine rating criteria, because the Veteran has not been shown to have ankylosis of the lumbar spine, and bed rest has not been prescribed to treat incapacitating episodes of intervertebral disc syndrome. 38 C.F.R. § 4.130; DCs 5237, 5242 (2012). The Veteran has not alleged otherwise. As discussed above, the evidence also fails to show a separate neurological impairment. As with the earlier VA examinations, no separate neurologic disability was found at the VA examination in September 2009. The examiner found no focal radicular deficit in the Veteran's muscle or sensation. The Veteran had 2+ deep tendon reflexes at the patella and Achilles tendon. Moreover, the examiner explained that while the Veteran did have decreased sensation across his feet, this was not in a radicular pattern and was not therefore indicative of a neurologic disability. There is also no indication that the Veteran had either severe intervertebral disc syndrome or pronounced intervertebral disc syndrome so as to warrant a rating in excess of 40 percent under the regulations in effect at the time the Veteran filed his claim. Nevertheless, to the extent described above, the Veteran's claim is granted. Back Disability - Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for lumbar spine disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected back disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is therefore required. The Veteran's main symptoms involve pain, muscle spasms, and limitation of motion, all of which have specifically been accounted for by the schedular rating criteria. The service-connected back disability rating criteria specifically provide for ratings based on the presence of painful arthritis, limitation of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca), and incapacitating episodes. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the back symptoms reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's service-connected lumbar spine disability, the Board finds that the criteria for submission for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 20 percent rating is granted prior to September 11, 2009; and a 40 percent rating is granted as of September 11, 2009, subject to the laws and regulations governing the award of monetary benefits. REMAND In June 2012, a medical expert opinion was requested to resolve certain medical questions regarding the Veteran's claim for an increased rating for digestive disability. In August 2012, the Board received the requested opinion. The Board subsequently notified the Veteran in November 2012 correspondence that the requested medical opinion had been received, enclosed a copy of the medical opinion, and informed the Veteran that he had sixty days from the date of the letter to submit additional evidence or argument in support of his claim. See 38 C.F.R. § 20.903. The RO also explained in said correspondence that the Veteran had the right to have newly submitted evidence along with the evidence of record considered by the RO for review and for issuance of a Supplemental Statement of the Case (SSOC) or, in the alternative, he could waive in writing his right to initial RO consideration of any new evidence he submitted, and request that the Board proceed with adjudication of his appeal without remanding his case to the RO. The record shows that additional lay and medical evidence was received in support of the Veteran's digestive disability in January 2013. The Veteran specifically indicated on his January 2013 "Medical Opinion Response Form" that he wanted the issue of an increased rating for digestive disability remanded to the agency of original jurisdiction (AOJ) for review of the newly submitted evidence. Because the Veteran has specifically asked to have the issue of an increased rating for digestive disability remanded, and has declined to provide a waiver of his right to have the AOJ review the additional evidence in the first instance, the Board must remand this issue to the AOJ for its due consideration and the issuance of a SSOC reflecting such consideration with respect to the issue on appeal. See 38 C.F.R. § 20.1304(c). Accordingly, the issue of an increased rating in excess of 10 percent for service-connected digestive disability is REMANDED for the following action: Readjudicate the issue of an increased rating in excess of 10 percent for service-connected digestive disability, taking into account all evidence received since the December 2011 Supplemental Statement of the Case (SSOC) including the August 2012 VHA opinion and the Veteran's medical treatise evidence and written contentions submitted in January 2013. If any benefit sought remains denied, the Veteran should be furnished a Supplemental Statement of the Case, and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). 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). ______________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs