Citation Nr: 1308105 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 04-28 314A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for the orthopedic manifestations of a lumbar spine disability. 2. Entitlement to an initial rating in excess of 10 percent for the neurological manifestations of a lumbar spine disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1967 to April 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a September 2003 rating decision, the RO granted service connection for a low back strain with an initial 20 percent disability rating effective February 16, 2000. The September 2003 rating decision denied service connection for radiculopathy of the left leg. In an April 2007 decision, the Board granted service connection for lumbar spine degenerative disc disease and remanded the claim for rating of the lumbar spine disabilities. In September 2007, the RO assigned an initial rating of 20 percent for the combined lumbar spine disabilities. In August 2008, the Board denied an initial disability rating in excess of 20 percent for the lumbar spine disability, and it granted a separate 10 percent rating for neurological manifestations in the left lower extremity with an effective date of September 23, 2002. The Veteran timely appealed the Board's August 2008 decision to the United States Court of Appeals for Veterans Claims (Court) to the extent that it denied: (i) a rating in excess of 20 percent for a low back disability, (ii) a rating in excess of 10 percent for neurological manifestations of a low back disability in the left lower extremity, and (iii) a separate 10 percent rating for neurological manifestations of a low back disability in the right lower extremity. In a September 2009 Joint Motion for Partial Remand, the Court directed the Board to discuss whether the left leg paralysis of sciatic nerve warranted referral for an extraschedular rating, and it further directed that VA comply with its duty to assist by including all of the Veteran's VA treatment records in his VA claims folder. This matter has previously been before the Board, most recently in June 2012, when it remanded the case for additional development of the evidence of record. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board remanded the claims in order to provide the Veteran with notice regarding secondary service connection for the neurological manifestations of a low back disability in the right lower extremity and to consider whether the Veteran's claims warranted referral on an extra-schedular basis. The Board finds that there has been effective compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) The Board notes that the Veteran's claims have previously been characterized to include a separate claim for service connection for neurological manifestations of a lumbar spine disability in the right lower extremity. As will be discussed in further detail below, the Board considers all neurological manifestations of the Veteran's lumbar spine disability in connection with the Veteran's claim for an increased rating, regardless of the affected extremity. Therefore, the issues on appeal have been rephrased as shown above, and the Veteran is not prejudiced by such recharacterization of the issues. As the Board noted in its June 2012 Remand, the issue of entitlement to an earlier effective date for service connection for a lumbar spine disability has been raised by the Veteran. The RO has provided the Veteran with notice regarding the evidence required to substantiate a claim for an earlier effective date, but the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). 38 U.S.C.A. § 5103(A) (West 2002); 38 C.F.R. § 3.159 (2011). Therefore, the Board does not have jurisdiction over that issue. It is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From February 16, 2000 to September 22, 2002, the Veteran's lumbar spine condition was manifested by no more than moderate limitation of motion of the thoracolumbar spine and muscle spasm; no incapacitating episodes were shown; no neurological manifestations were shown. 2. From September 23, 2002 to September 25, 2003, the Veteran's lumbar spine condition was manifested by limitation of motion that was no worse than moderate in severity; no incapacitating episodes were shown; neurological impairment in the left lower extremity was shown approximating no more than mild incomplete paralysis of the sciatic nerve; neurological impairment in the right lower extremity was no more than slight in severity. 3. Since September 26, 2003, the Veteran's lumbar spine condition has been manifested by forward flexion limited by pain to 40 degrees; there was no objective evidence of ankylosis or incapacitating episodes; neurological impairment in the left lower extremity was shown approximating no more than mild incomplete paralysis of the sciatic nerve; neurological impairment in the right lower extremity was no more than slight in severity. 4. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected disabilities are inadequate. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for the orthopedic manifestations of a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (2002 and 2003), 5243 (2012). 2. The criteria for an initial disability rating in excess of 10 percent rating for neurological manifestations of a lumbar spine disability in the lower left extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b), 5110(g) (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, DC 8720 (2012). 3. The criteria for an initial compensable disability for neurological manifestations of a lumbar spine disability in the lower right extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b), 5110(g) (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, DC 8720 (2012). 4. The criteria for referral of the Veteran's disabilities on an extra-schedular basis are not met. 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notice 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. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence to the Veteran in May 2003, January 2004, November 2007, and January 2008, rating decisions in September 2003, June 2004, and September 2007, a statement of the case in July 2004, and a supplemental statement of the case in November 2005. Those documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the Veteran with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the Veteran's possession. The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2011). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations, and VA and private health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). More specifically, a VA examination must be conducted when the evidence of record does not reflect the current state of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was provided with VA examinations in December 2002, February 2008, November 2008, and November 2010. The examination reports indicate that the examiners reviewed the Veteran's claim file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. The Board observes that all due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Schedular Analysis The Veteran contends that he is entitled to an initial disability rating in excess of 20 percent for a lumbar spine disability. The Veteran further contends that he is entitled to an initial rating in excess of 10 percent for the neurological manifestations of a lumbar spine disability. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practicably can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (West 2002). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). For the purpose of rating disability from arthritis, the spine is considered a major joint. 38 C.F.R. § 4.45 (2012). The regulations for rating disabilities of the spine were twice revised during the pendency of the appeal, effective September 23, 2002 and effective September 26, 2003. 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). When the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. However, the amended regulation cannot be applied prior to the effective date of the amendment. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003), 69 Fed. Reg. 25179 (2004). Thus, the amended rating criteria can be applied only for periods from and after the effective date of the regulatory change. The Board can apply only the prior regulation to rate the Veteran's disability for periods preceding the effective date of the regulatory change. VAOPGCPREC 3-00 (Apr. 10, 2000), 65 Fed. Reg. 33422 (2000). With regard to intervertebral disc syndrome (IDS), before September 23, 2002, moderate IDS with recurrent attacks warranted a 20 percent rating. Severe IDS with recurring attacks with intermittent relief, warranted a 40 percent rating. A 60 percent rating applied when the IDS was pronounced, 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, intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2001). Since this rating code contemplated limitation of motion, a separate rating for limitation of motion was not warranted. VAOPGCPREC 36-97 (Dec. 12, 1997), 63 Fed. Reg. 31262 (1998). The words "slight," "moderate," and "severe," as used above and in various other diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 (2012). The use of a term such as "severe" by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). From September 23, 2002 to September 25, 2003, IDS was to be rated either on the total duration of incapacitating episodes over the preceding 12 months or by combining separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. In pertinent part, incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months warranted a 20 percent disability evaluation. Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months warranted a 40 percent disability evaluation. Incapacitating episodes having a total duration of at least six weeks during the past 12 months warranted a 60 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. See 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1) (2003). With respect to limitation of motion of the lumbar spine, before September 26, 2003, in pertinent part, a 20 percent rating was warranted for moderate limitation of motion of the lumbar spine, and a 40 percent rating was warranted for severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (2002). With respect to lumbosacral strain, in pertinent part, a 20 percent rating was warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating was warranted for lumbosacral strain that was severe, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, and narrowing or irregularity of the joint space. A 40 percent evaluation was also warranted when only some of these symptoms were present if there was also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). Effective September 26, 2003, spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2011). The General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease rates disabilities as follows, in pertinent part: 100 percent: Unfavorable ankylosis of the entire spine 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine 20 percent: 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 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Medicine at 68 (4th ed. 1987)). 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. A normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. The following ratings apply to intervertebral disc syndrome based on incapacitating episodes, in pertinent part: 60 percent: Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least 4 weeks but fewer than 6 weeks during the past 12 months. 20 percent: Incapacitating episodes having a total duration of at least 2 weeks but fewer than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Board has evaluated the Veteran's spine disability under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2007). The Veteran's low back disability has been rated 20 percent disabling under DC 5237-5242. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5237, which pertains to lumbosacral or cervical strain, is rated under the General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5242, which pertains to degenerative arthritis of the spine, is also rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5237, 5242. Other applicable diagnostic codes include DC 5292, which contemplates limitation of motion of the lumbar spine, DC 5293, which contemplates intervertebral disc syndrome, and DC 5295, which contemplates lumbosacral strain. 38 C.F.R. § 4.71a, DCs 5292, 5293, 5295. It has not been contended or shown in this case that the veteran has residuals of a fracture of the vertebra (DC 5285), complete bony fixation of the spine (DC 5286), or ankylosis of the lumbar spine (DC 5289). Accordingly, the diagnostic codes pertaining to these disabilities are not applicable in the instant case. The Board will now analyze whether the Veteran is entitled to a greater disability rating or ratings during any of the three regulatory periods described above: before September 23, 2002; from September 23, 2002 to September 25, 2003; and from September 26, 2003. Analysis - Before September 23, 2002 The Board observes that the Veteran is in receipt of a 20 percent evaluation for his lumbar spine disability from the date of his claim in February 2000. The Board observes no VA examinations and no probative medical treatment records from this period. Accordingly, while the Board will leave the Veteran's 20 percent rating for this period undisturbed, it also finds no basis to award the Veteran with a rating in excess of 20 percent for his lumbar spine disability during this period under the above-described regulatory criteria. Without pertinent medical records, the Board similarly observes no basis upon which to award the Veteran with a compensable neurological rating during this time. Analysis - September 23, 2002 to September 25, 2003 The Veteran received a VA examination in December 2002, at which time the Veteran complained of pain in his back, and the Veteran wore a back brace. Physical examination revealed spasm in the paralumbar area. The examiner diagnosed the Veteran with degenerative disc disease and myositis of the lumbar area. In December 2002, the Veteran complained of occasional pain on the left leg that caused him to tilt to the left. The Veteran had a positive straight leg test on the left side, but the Veteran otherwise had no reflex, sensory, or motor deficits. The examiner observed mild atrophy in the left quadriceps due to slight 4/5 weakness in the left quadriceps. The Veteran had good heel and toe rising and good gluteal tone. With regard to the possibility of a rating in excess of 20 percent during this period based on limitation of motion, a higher rating of 40 percent is not warranted absent a "severe" limitation of lumbar motion. 38 C.F.R. § 4.71a, DC 5292. In this case, the December 2002 VA examination included no range of motion testing, and there are similarly no VA records documenting a severely limited range of lumbar spine motion. The Veteran did not complain of severely limited motion during this time. Thus, the Board finds that the evidence of record is inconsistent with a severe limitation of lumbar motion. 38 C.F.R. § 4.71a, DC 5292 (2002). A disability rating in excess of 20 percent based on limitation of motion is not appropriate during this time. With regard to the possibility of a rating in excess of 20 percent based on lumbar strain, a higher rating of 40 percent is not warranted absent listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, and 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 (2002). In this case, the medical evidence indicates that the Veteran complained of a tilt to the left due to low back pain; the examiner also noted a paralumbar muscle spasm. The clinical record does not show listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some combination of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). Thus, the Veteran's low back disability overall does not satisfy the criteria for a higher rating of 40 percent under the criteria applicable to lumbar strain during this period. Under the criteria applicable to IDS, a greater rating of 40 percent is available only with incapacitating episodes of a total duration of at least four weeks but fewer than six weeks during the past 12 months. The Veteran complained neither in treatment records nor at VA examination of having experienced any such episodes. Accordingly, the Veteran's lumbar spine disability does not satisfy the criteria for a higher rating of 40 percent under the criteria applicable to IDS. Analysis - After September 26, 2003 A January 2006 VA medical record indicated that the Veteran had a full range of motion at that time. An August 2006 VA clinical record indicated that the Veteran had chronic back pain that was stable. The Veteran received a VA examination in February 2008, at which time the Veteran complained of progressively worsening pain. The Veteran denied a history of trauma to the spine, neoplasm, or incapacitating episodes of spine disease. The Veteran complained of fatigue, stiffness, spasm, and pain in the lower back, but he denied experiencing decreased motion or weakness. Flare-ups were severe and occurred weekly. The Veteran wore a brace, but he had no limitation to walking. Upon physical examination, the Veteran's posture was normal, his head position was normal, the Veteran's appearance was symmetrical, and his gait was normal. The Veteran had no gibbus, kyphosis, list, lumbar lordosis, scoliosis, reverse lordosis, or ankylosis. The examiner observed lumbar flattening. The Veteran had no spasm, atrophy, guarding, painful motion, tenderness, or weakness. The Veteran had flexion to 75 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 20 degrees. The examiner observed pain with the Veteran's motion, but additional repetitions produced no additional loss of motion. X-ray examination revealed severe diffuse degenerative changes with multiple spinal stenosis. A May 2008 private treatment record indicated that the Veteran had tenderness and flexion limited to 60 degrees. The straight leg raise test caused the Veteran to experience lower back pain. X-ray examination showed severe lumbar degenerative disc disease and lumbar degenerative arthritis. The Veteran received a VA examination in November 2008, at which time the Veteran complained of increasing, constant spine pain. Medication helped to relieve his pain partially, and he had flare-ups that were precipitated by twisting, turning, lifting more than ten pounds, or bending forward. Occasionally flare-ups occurred spontaneously. Flare-ups occurred daily and lasted two hours. The Veteran wore a lumbosacral support. The Veteran indicated that he could walk up to one-quarter of a mile. The Veteran was unstable on his feet, but he had not fallen. The Veteran had experienced no incapacitating episodes in the past 12 months. The Veteran required assistance from his wife to put on his socks. Upon physical examination, the examiner observed no deformity of the lumbar spine. There was 1+ muscle spasm in the lumbar region. The Veteran was able to ambulate tandem toe-to-heel, squat, and rise without weakness. The Veteran had forward flexion to 50 degrees (40 degrees upon repeated flexion), extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 30 degrees. The Veteran's range of motion was limited by pain, and the examiner observed no limitation based on incoordination, fatigability, weakness, or loss of endurance. The straight leg test, Patrick's test, and Bragard's test were negative. X-ray testing showed diffuse degenerative changes in the lumbar spine. A July 2009 MRI examination indicated that the Veteran had degenerative disc disease at the level of L2 to S1, worse at the level of L4 and L5. There was also foraminal stenosis at L3 to S1. The Veteran received a VA examination of his spine in November 2010. The Veteran indicated that his pain was worsening, and he claimed that his ability to engage in physical activities was restricted. The Veteran indicated that he experienced constant pain, but he denied experiencing incapacitating episodes in the past 12 months. Driving, bending, or lifting more than eight pounds caused daily flare-ups of pain. These flare-ups were relieved by medication, rest, and application of heat, and they tended to last for one hour. The Veteran used a lumbar brace at home. The Veteran indicated that he could walk up to a quarter-mile, and he denied experiencing any unsteadiness or falls. The Veteran indicated that while his wife needed to help put on his socks, he had no other impairment of his activities of daily living. X-ray examination revealed degenerative disc disease and a slight left scoliosis. Upon physical examination, the examiner observed no muscle spasm or deformity. The Veteran could ambulate tandem and squat to 60 degrees without weakness. The Veteran had forward flexion from 0 to 60 degrees, extension from 0 to 15 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. Repetitive motion testing decreased the Veteran's forward flexion from 60 degrees to 55 degrees on the basis of increasing pain. The straight leg raising test, Patrick test, and Bragard's test were negative. In an April 2011 VA treatment record, the Veteran indicated that his back pain was "much better." In an August 2011 oncology record, the Veteran denied experiencing any back pain. A higher rating is not available to the Veteran at any time under the Formula for Rating IDS Based on Incapacitating Episodes. See 38 C.F.R. § 4.71(a), Diagnostic Code 5243 (2012). None of the Veteran's pertinent VA examination reports indicate that he experienced incapacitating episodes as a result of his back condition; indeed, at the time of his February 2008 examination, the Veteran expressly stated that he self-treated his back pain using over-the-counter medication and did not go to the doctor for his symptoms. The Veteran similarly denied experiencing any such episodes in November 2010. As the Veteran is not entitled to an increased rating based on incapacitating episodes, the Board will next determine whether the Veteran is entitled to a higher rating based on the orthopedic or neurological manifestations of his lumbar spine disability. Turning first to the orthopedic manifestations of the Veteran's lumbar spine disability, the Board notes that the Veteran has never been diagnosed with ankylosis, nor have his symptoms closely approximated ankylosis or immobility. On the contrary, the record shows that the Veteran has maintained limited motion throughout the course of the appeal. A rating of 50 percent or greater is therefore unwarranted under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). The Veteran's forward flexion has been limited, at worst, taking into account painful repetitive motion, to 40 degrees at the time of his November 2008 examination. The Veteran's combined range of motion, has been limited, at worst, to 130 degrees at the time of his November 2008 examination. Therefore, the Veteran's ranges of motion fall, at most, within the requirements for a 20 percent rating; that is, forward flexion greater than 30 degrees but not greater than 60 degrees; or combined range of motion not greater than 120 degrees. 38 C.F.R. § 4.71a, DC 5237 (2012). In its above analysis, the Board has considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2012). The reports of the VA examinations note that the Veteran complained of pain, stiffness, and spasm, among other symptoms. While the VA examiners consistently noted limitation of motion due to pain, this limitation, as discussed above, does not warrant a disability rating greater than that which is currently assigned. While the Board accepts the Veteran's contention that his back disability causes him to experience significant pain, the Board has taken this into account in its above discussion of the range of motion of the Veteran's back. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a higher evaluation based on functional loss due to pain is not warranted. Turning next to neurological manifestations, neurological abnormalities associated with diseases and injuries of the spine are to be rated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2012). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The rating schedule does not define the terms "mild," "moderate," or "severe" as used in this diagnostic code. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6 (2012). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve is rated as 80 percent disabling and contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. A July 2005 clinical record indicated that the Veteran had a positive straight leg test at 40 degrees on the left lower extremity and 70 degrees on the right lower extremity. In February 2008, the Veteran complained of experiencing urinary incontinence, urinary frequency, nocturia, and erectile dysfunction, but the examiner observed that such symptoms were unrelated to the Veteran's claimed spine condition. The Veteran denied urinary urgency, urinary retention, fecal incontinence, obstipation, numbness, paresthesias, legal or foot weakness, falls, or unsteadiness. The Veteran's muscles had normal movement against full resistance. Sensory examination was normal. Reflex testing was normal bilaterally. The Veteran reported no radiating pain during his examination. In November 2008, the Veteran complained of pain radiating to just above the left ankle. The Veteran indicated that he had numbness over the lateral aspect of the left lower extremity just below the knee, and he had weakness of that extremity. Deep tendon reflexes were 1+ patellar, 1+ right Achilles, negative left Achilles, and negative left posterior tibialis. Minor muscle testing revealed no muscular weakness and no motor deficit. Sensation was decreased over the lateral aspect of the left calf and the lateral aspect of the left foot. Pulses were good. In November 2010, the Veteran complained of radiating pain to both thighs laterally, and spreading all the way down to the level of the mid-calf. The Veteran claimed that he experienced weakness in his left leg, and he stated that he had intermittent numbness on the lateral aspect of both thighs intermittently. The Veteran denied experiencing urinary or fecal incontinence, but he had erectile dysfunction. The Veteran walked without assistive devices. Deep tendon reflexes were 1+ and equal in both patellar, Achilles, and posterior tibialis reflexes. The Veteran had no vascular deficit, no sensory deficit, and no muscular weakness on manual muscle testing. The examiner concluded that there was no neurological deficit in the lower extremities. The Board finds that a rating in excess of 10 percent for the Veteran's neurological manifestations in the left lower extremity is unwarranted. Similarly, the Board finds that a compensable rating is not available for the Veteran's neurological manifestations in the right lower extremity. The medical record is consistently negative for any clinical findings of muscle atrophy and, indeed, consistently showed that the Veteran's muscle strength was normal. Instead, the Veteran's symptoms focus primarily on experiencing pain and numbness. The Veteran has denied experiencing weakness in his right leg. The Board has considered whether a higher rating might be warranted for any time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that the orthopedic manifestations of the veteran's low back disability have warranted no more than a 20 percent rating since February 16, 2000, the effective date of service connection. Additionally, the Board finds that the weight of the credible evidence demonstrates that the Veteran is not entitled to a disability rating in excess of 10 percent for neurological manifestations in his left lower extremity, and the Veteran is not entitled to a compensable evaluation for neurological manifestations in his right lower extremity. All reasonable doubt has been resolved in favor of the veteran in making this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-Schedular Considerations The Veteran has been in receipt of a total disability rating based on individual unemployability since December 18, 2008. While extra-schedular consideration since this date is moot, the Board will consider whether an award on an extra-schedular basis is appropriate before this date. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. See 22 Vet. App. 111 (2008). 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 does not contemplate the Veteran's level of disability and symptomatology and is found to be 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 extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. Higher ratings are available for the manifestations of the Veteran's lumbar spine condition, but the Veteran does not meet those criteria. It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations for that service-connected disability are adequate. Referral for extra-schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra-schedular consideration is not required. See Thun, supra. ORDER An initial rating in excess of 20 percent for the orthopedic manifestations of a lumbar spine disability is denied. An initial rating in excess of 10 percent for the neurological manifestations of a lumbar spine disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs