Citation Nr: 1308178 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 08-34 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for the service-connected residuals, status-post herniated nucleus pulposus (hereinafter "lumbar spine disability"). 2. Entitlement to an evaluation in excess of 20 percent for lumbar spine disability, on an extraschedular basis. 3. Entitlement to a separate disability evaluation for neurologic impairment related to the lumbar spine disability, to include lumbar radiculopathy. REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney at Law ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1967. As a preliminary procedural matter, the Board of Veterans' Appeals (hereinafter "Board") notes that the Veteran filed a claim for an increased evaluation for his lumbar spine disability on November 16, 2006, which was denied in a rating decision by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Montgomery, Alabama, dated on June 13, 2007 and issued on June 14, 2007. The Veteran filed a timely notice of disagreement (hereinafter "NOD") with this decision, which was received at the RO on September 12, 2007. The record from this time indicates that private treatment records from "South Baldwin Regional Medical Center," for the period from February 2004 to February 2007, had been received, but had not been associated with the claims file prior to the June 2007 rating decision. A statement of the case (hereinafter "SOC") was issued on July 26, 2008, which considered the additional private treatment records. In a VA Form 9, Appeal to Board of Veterans' Appeals (hereinafter "Form 9"), dated on July 31, 2008, but not received by the RO until November 6, 2008 (as indicated on an attached transmittal sheet from the Veteran's then-representative), the Veteran attempted to finalize his appeal. However, on December 1, 2008, the RO issued a letter in which the Veteran was informed that his Form 9 could not be accepted as a timely substantive appeal because it was filed more than one year following notification of the adverse decision (the June 14, 2007 rating decision), and was filed more than 60 days from the date of the July 2008 SOC. In other words, the RO rightly indicated that the Veteran had until September 25, 2008 to submit his substantive appeal, and failed to do so. The Veteran and his representative did not disagree with the RO's finding at that time. This matter presently comes before the Board on appeal from an April 19, 2012 rating decision, issued on April 20, 2012, which denied a claim for an increased disability evaluation for the lumbar spine disability, received on August 1, 2011. Notably, on May 14, 2012 the Veteran's attorney provided argument that the Veteran perfected his appeal of the June 2007 rating decision when he filed the VA Form 9, dated on July 31, 2008 and received on November 6, 2008. The attorney requested that VA proceed with adjudication based on the July 2008 VA Form 9. On August 10, 2012, the Veteran's attorney submitted an NOD, which disagreed with the April 2012 decision, and requested review by a Decision Review Officer (hereinafter "DRO"). The RO issued a letter on August 22, 2012, informing the Veteran that his written disagreement with the April 2012 decision had been accepted, and that an SOC would be prepared. On December 20, 2012, the RO issued a supplemental SOC (hereinafter "SSOC"), in which the RO listed previous adjudicative actions as "08-13-08 Substantive Appeal Received" and "12-20-2012 Claim considered." This SSOC confirmed and continued the denial of the Veteran's increased rating claim. On January 22, 2013, the RO completed a VA Form 8, Certification of Appeal (hereinafter "Form 8"), and certified the claim for an increased rating for the lumbar spine disability to the Board. On January 23, 2013, the RO also provided the Veteran with notification of the certification and transfer of his claims file to the Board. The Board acknowledges that the RO has not provided the Veteran with a current SOC addressing this issue, and that when the Veteran files a timely NOD, the issuance of an SOC is required. Manlincon v. West, 12 Vet. App. at 240-41. Also, 38 C.F.R. § 19.31(a) provides that in no case will an SSOC be used to announce decisions by the agency of original jurisdiction (hereinafter "AOJ") on issues not previously addressed in an SOC, or to respond to an NOD on newly appealed issues that were not addressed in an SOC. However, despite this administrative error, the Board notes that in Percy v. Shinseki, 23 Vet. App. 37, 45 (2009), the United States Court of Appeals for Veterans Claims (hereinafter "Court") held that the statutory period with regard to filing a Substantive Appeal is discretionary and the time frame is not appropriately deemed "jurisdictional." The Percy Court also held that VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected. See Percy, 23 Vet. App. 37 (2009). While this claim has not followed the typical procedural path to the Board, the Board finds the Veteran clearly has been led to believe by VA actions that his increased rating claim has been perfected and is in appellate status. In fact, the January 2013 letter specifically informed the Veteran that his appeal was certified to the Board and his VA records were being transferred to Washington, DC. On this basis, and as no prejudice can flow to the Veteran from doing so, the Board will herein adjudicate the claim on the merits. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to the file in Virtual VA in December 2011 and December 2012, which was considered by the RO in the December 2012 SSOC. As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. § 20.1304(c) (2012). The issues of entitlement to an evaluation in excess of 20 percent for lumbar spine disability on an extraschedular basis and entitlement to a separate disability evaluation for neurologic impairment related to the lumbar spine disability, to include lumbar radiculopathy are addressed in the REMAND portion of the decision below and is REMANDED to the VA RO. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal have been accomplished. 2. For the entire period of the appeal, the competent and credible lay and medical evidence of record reveals that the Veteran's residuals, status-post herniated nucleus pulposus has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; and there is no evidence of any ankylosis of the thoracolumbar spine or of intervertebral disc syndrome (hereinafter "IVDS"). CONCLUSION OF LAW For the entire period of the appeal, the criteria for the assignment of a rating in excess of 20 percent for the service-connected low back disability has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.655, 4.1, 4.3, 4.7, 4.71, 4.71a including Diagnostic Codes (hereinafter "Diagnostic Codes" or "DCs") 5299, 5235 to 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011); see also Jandreau. In certain instances lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (hereinafter "VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has satisfied its duty to notify by issuing pre- and post-adjudication notice letters in January 2012, March 2012 and October 2012. These letters advised the Veteran of what evidence was required to substantiate his claim for an increased rating, and of his and VA's respective duties for obtaining evidence. The January 2012 letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. It also satisfied the requirements under Vazquez-Flores, 580 F.3d 1270 (Fed. Cir. 2009). Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The duty to assist provisions of the VCAA have been met. The claims file contains the Veteran's lay statements, post-service medical treatment records, Social Security Administration (hereinafter "SSA") records and reports of VA examinations (also known in the record as Disability Benefits Questionnaires or "DBQs") dated in January 2012 and August 2012. The VA examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests, including X-ray studies. Also, these examinations included discussions of the effect of the Veteran's lumbar spine disability on occupational functioning and daily activities. Notably, on the July 2008 Form 9 that accompanied the Veteran's attorney's statement in May 2012, the Veteran reported that he was treated for his lumbar spine by the private practitioners "Dr. Funk," and "Dr. West." In October 2012, the RO informed the Veteran that records from Dr. Funk and the "South Baldwin Regional Medical Center" were in VA's possession. However, it was unclear as to whether the Veteran was referencing additional records dated more recently than those contained within the claims file. The Veteran was encouraged to complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release of Information to the Department of Veterans Affairs (hereinafter "Form 21-4142). Approximately 1 week later, the Veteran's attorney submitted a response to the RO's letter, and on behalf of the Veteran, pursuant to 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a); and VA M21-1MR Part III, Subpart IV, Chapter 5(1)(a), requested that VA consider all medical evidence in his case. The Veteran failed to complete a Form 21-4142 and has not mentioned records from Dr. Funk and Dr. West in subsequent correspondence to VA. Moreover, SSA records associated with the claims file in October 2012 contain private treatment records from Dr. Funk and Dr. West. As the Veteran has not identified additional outstanding private treatment records from these physicians or from any other private facilities, or supplied VA with authorization to obtain any such records, the Board finds no further attempt to obtain these records is necessary. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. However, from time to time, VA will readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Veteran seeks an increased evaluation for his service-connected lumbosacral spine disability, which is rated as 20 percent (hereinafter "%") disabling, under 38 C.F.R. § 4.71a, DCs 5299, 5235 to 5243 (2012). Where a particular disability for which the veteran has been service-connected is not listed, it may be rated by analogy to a closely related disease in which not only the functions affected, but also the anatomical area and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; Lendenmann v. Principi, 3 Vet. App. 345, 349-50 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). When rating by analogy, the diagnostic code is "built- up" by assigning the first two digits from that part of the schedule most closely identifying the part of the body involved and then assigning "99" for the last two digits for all unlisted conditions. See 38 C.F.R. § 4.27. Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. See 38 C.F.R. §§ 4.20, 4.27 (2012). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). The Board's selection of a Diagnostic Code under which to rate a claimant's disability by analogy is considered a factual determination and is reviewed under the Court's "arbitrary and capricious" standard. 38 U.S.C. § 7261(a)(3)(A); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc). The Board must provide an adequate statement of reasons or bases for its analysis under a particular section of the Diagnostic Code. Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006). The Board's duty to provide an adequate statement of reasons or bases is heightened in cases in which a condition is assigned a rating by analogy to other conditions. See Suttman v. Brown, 5 Vet.App. 127, 134 (1993). Under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20% evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees (hereinafter "º") but not greater than 60º; or, forward flexion of the cervical spine greater than 15º but not greater than 30º; or, the combined range of motion of the thoracolumbar spine not greater than 120º; or, the combined range of motion of the cervical spine not greater than 170º; 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 30% evaluation is warranted for forward flexion of the cervical spine 15º or less; or, favorable ankylosis of the entire cervical spine. A 40% evaluation is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30º or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50% evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100% evaluation is warranted for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, 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 90º, extension is zero to 30º, left and right lateral flexion are zero to 30º, and left and right lateral rotation are zero to 30º. 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 240º. 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): In exceptional cases, an examiner may state that because of age, body habits, 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 cervical spine, 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 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). See 38 C.F.R. § 4.71a, DCs 5235 to 5242 (2012). Evaluate intervertebral disc syndrome (preoperatively or postoperatively) 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 under §4.25. A 10% evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20% evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40% evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60% evaluation is entitled for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 5243, 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. See 38 C.F.R. § 4.71a, DC 5243 (2012). Normal ranges of motion of the thoracolumbar spine are to 30º in extension, to 90º in flexion, to 30º in lateral flexion, and to 30º in rotation. 38 C.F.R. § 4.71, Plate V (2012). All disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2012). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would over-compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). In this regard, the Board notes that the Veteran has reported that he has a surgical scar over his lumbar spine that, on VA examinations in January 2012 and August 2012, was found to be related to his lumbar spine disability. However, the Board notes that the scar was not observed to be painful and/or unstable, or totaling 39 square centimeters (6 square inches) on examination. Therefore a separate compensable rating for a scar disability is not warranted in this case. 38 C.F.R. § 4.118 (2012). The evidence of record does not support an evaluation of more than 20% for the lumbar spine disability. 38 C.F.R. § 4.7. The clinical record fails to show findings of forward flexion of the thoracolumbar spine limited to 30º or less, warranting a 40% evaluation; or, unfavorable ankylosis of the entire thoracolumbar spine, warranting a 50 percent evaluation; or, IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, warranting a 60% evaluation; or unfavorable ankylosis of the spine, warranting a 100% evaluation. 38 38 C.F.R. § 4.71a, DCs 5235 to 5243. Throughout the appeal period, the Veteran has reported that his residuals, status-post herniated nucleus pulposus, include daily back pain with constant weakness in the low back; left lower extremity radiculopathy with sitting; painful motion; unpredictable, severe twinges of back pain that cause him to stop his activity and lay flat on the ground, but that usually resolve in seconds to minutes; incapacitating episodes and painful flare-ups related to lifting or sitting in a car. The Board finds the Veteran's testimony to be competent and credible as there are no conflicting statements in the record nor is there any evidence suggesting the Veteran was untruthful or mistaken in his account of his lumbosacral spine symptomatology. See Buchanan v. Nicolson, 451 F.3d 1331 (Fed.Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, evaluation of the lumbosacral spine falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." In this regard, the Veteran is not competent to diagnose himself with ankylosis or IVDS, or to objectively evaluate the ranges of motion of his lumbosacral spine, because he does not have the requisite medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan, 451 F.3d 1331 (Fed. Cir. 2006). Thus, the Board relies heavily on the objective medical evidence discussed in detail below, as this evidence addresses the objective rating criteria to a more finite degree than the lay evidence. On VA spine examination in January 2012, the Veteran was diagnosed with herniated nucleus pulposus, status-post hemilaminectomy L5, S1 left; resolved without residuals; no functional limitation. He was also diagnosed with lumbar degenerative disc disease (hereinafter "DDD") multilevel, mild; and with radiculopathy left lower extremity L5; with mild functional limitation; not related to the herniated nucleus pulposus and not caused by military service. Physical findings, included range of motion test results of forward flexion to 85º, with and without pain, both before and after repetitive use testing. The examiner observed that guarding and muscle spasm of the thoracolumbar spine was severe enough to result in abnormal gait, and the Veteran had mild radiculopathy of the left lower extremity on examination. However, the examiner noted the Veteran did not have any other neurologic abnormality or finding related to the thoracolumbar spine, and did not have IVDS of the thoracolumbar spine. The Veteran was observed to have documented arthritis, but did not have a vertebral fracture. The examiner indicated that the Veteran's lumbar spine disability had an impact on his ability to work insofar as his lumbar pain affected his ability to work as a boat mechanic because he could not sit for greater than 1 to 1 1/2 hours. The examiner noted the Veteran was fine with walking as it relieved his pain, that he was limited with bending and lifting with proper body mechanics, and that he occasionally required the use of a brace. On VA spine examination in August 2012, the examiner observed that the Veteran did not have 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 weight bearing. He did not have loss of function with repetitive use, and loss of function due to flare ups could not be determined without resorting to mere speculation. The examiner noted that a lumbar spine X-ray study performed in January 2012 revealed findings of anterior hypertrophic spondylosis with disc narrowing throughout the entire lumbar spine, most pronounced at the L5 to S1 region. The Veteran was diagnosed with herniated nucleus populsus; mild functional limitation; no objective evidence of radiculopathy. Physical findings, included range of motion test results of forward flexion to 75º, with and without pain, both before and after repetitive use testing. The examiner observed that the Veteran had localized tenderness or pain to palpation to the tissue of the thoracolumbar spine, but did not have muscle spasm or guarding in the thoracolumbar spine. The examiner noted that the Veteran did not have any radicular pain or any other sign or symptoms due to radiculopathy, and did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems. Also, the examiner indicated the Veteran did not have IVDS of the thoracolumbar spine. The Veteran reported that he occasionally used a back brace as an assistive device, but denied all other physical aids. The examiner noted there were no other pertinent physical findings, complications, signs and/or symptoms related to the lumbar spine. The Veteran was observed to have documented arthritis, but did not have a vertebral fracture. The examiner opined that the lumbar spine disability did not impact the Veteran's ability to work, and noted that left lumbar radiculopathy described on previous examinations was not demonstrated on examination, no nerve conduction testing was found and no reported symptoms typical of radiculopathy were reported by the Veteran. VA treatment records, dated from 2010 to 2012, show that the Veteran has consistently complained of and been treated for persistent low back pain with left lower extremity sciatica and chronic left foot numbness. These records reveal that at times, when the Veteran experienced pain in his low back he felt an urgency to defecate. These records do not reflect findings regarding the Veteran's range of motion in the thoracolumbar spine, or any diagnosis of or treatment for ankylosis in the thoracolumbar spine or IVDS. The clinical and lay record clearly shows that the Veteran does not experience flexion of the thoracolumbar spine limited to 30º or less; any ankylosis of the thoracolumbar spine; or any IVDS. The Board finds the medical evidence of record to be competent and adequate for VA rating purposes, insofar as the VA examination reports, and treatment records show findings that were based on objective observations of the physical manifestations of the Veteran's lumbar spine disability, and included empirical results of the pertinent diagnostic testing, such as range of motion testing, required of evaluating the spine. Therefore, for the entire duration of the appeal, an evaluation in excess of 20 percent is not warranted in this case. As there is no basis for assigning an increased rating, there is no evidentiary basis for assigning a staged rating pursuant to Hart. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as there is no clinical or lay evidence of forward flexion of the thoracolumbar spine limited to 30º or less, any ankylosis of the entire thoracolumbar spine, or any IVDS throughout the appellate period, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board has also considered whether the consideration of a higher rating is appropriate based on evidence of pain, weakened movement, excess fatigability, or incoordination. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202. However, under 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, disability ratings are to be assigned without regard to pain, stiffness, and aching. As noted, in the Veteran's case, the assignment of a higher rating is exclusively dependent upon findings of forward flexion of the thoracolumbar spine limited to 30º or less; or, ankylosis of the thoracolumbar spine; or, of incapacitating episodes of IVDS. As such, the Board does not find that a higher disability rating based on 38 C.F.R. § 4.40 and DeLuca is warranted. Extraschedular Considerations As noted on the cover page of this decision, the question of whether the Veteran is entitled to an extraschedular rating for his lumbar spine disability is being addressed as a separate issue and is being remanded for additional consideration. ORDER Entitlement to an evaluation in excess of 20 percent for the service-connected lumbosacral spine disability is denied. REMAND The Board finds that the clinical and lay record indicates the Veteran experiences neurologic impairment related to his lumbar spine disability, to include lumbar radiculopathy. However, before a separate evaluation for such impairment may be assigned, the Veteran must undergo additional VA examination and opinion to determine the nature, etiology and severity of any such impairment. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). These questions must be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4). Hence, the Board finds that a VA examination is warranted. Notably, a VA treatment record, dated in March 2011 reflects the Veteran reported that he experienced persistent low back pain that felt uncomfortable, and that occasionally he had left lower extremity sciatica and chronic left foot numbness. He indicated that when he experienced this pain, he also experienced an urgency to defecate. The examining physician speculated that if the Veteran's pain was controlled better, then maybe the defecation issue would improve as well. The physician observed that the Veteran's urination was not affected, and opined that the defecation issue was sporadic; hence it was doubtful that it was cauda equine syndrome. In July 2011, his bowels were described as minimally loose and improving since his last appointment. An August 2012 VA treatment record shows that the Veteran reported interval progression of left leg pain, fecal incontinence and low back pain. As noted above, on VA examination in January 2012, the Veteran was found to have mild lumbar radiculopathy of the left lower extremity; however, on examination in August 2012, the examiner indicated there were no objective symptoms of radiculopathy found on examination. The Board notes that the January 2012 examiner failed to identify which nerve root was affected by the radiculopathy. Savage v. Shinseki, 24 Vet. App. 259 (2011) (where missing information is relevant, factual, and objective and bears on the probative value of a medical report, VA must seek clarification from the examiner or explain why such clarification would be unreasonable). Also, the August 2012 examiner failed to explain why no objective evidence of radiculopathy was found on examination, and did not address the fact that no nerve conduction testing was ordered to ascertain if the Veteran had objective evidence of lumbar radiculopathy. Moreover, both examination reports indicated that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition such as bowel or bladder problems, or pathologic reflexes, and failed to explain why clinical findings showing complaints of bowel incontinence were not evidence of a neurologic disorder. Consequently, clarification is needed to provide adequate review of whether or not the Veteran is entitled to a separate disability evaluation for lumbar radiculopathy. The Board emphasizes that the purpose of this examination is to ascertain if the Veteran experiences any neurologic impairment related to his lumbar spine disability, to include lumbar radiculopathy. The Board notes that the question of whether an extraschedular rating for lumbar spine disability is warranted is inextricably intertwined with the issue of a separate rating for neurologic impairment. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be scheduled for a VA neurologic examination to determine the nature, etiology and degree of any neurologic abnormality, to include lumbar radiculopathy. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA eFolder. The examiner is asked to confirm whether paper and/or electronic records were available for review. All necessary diagnostic testing, to include nerve conduction study and any other study deemed appropriate by the examiner, should be performed, and all clinical findings should be reported in detail. The examiner should set forth in the report all examination findings and the complete rationale for any conclusions reached. Specifically, the examiner must determine if the Veteran has any symptoms manifested by lumbar radiculopathy, based upon the claims file review, the Veteran's subjective reports, and the examination findings. The examiner must discuss the conflicting findings of the January 2012 and the August 2012 VA examination reports. If neurologic abnormality, to include lumbar radiculopathy, is found on examination, the examiner must determine which body parts are affected, discuss which nerve roots are involved, and evaluate the degree of severity of neurological impairment, as characterized in terms of "mild," "moderate," "and "severe." The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. Examples of types of reasons are the lack of appropriate expertise on the part of the clinician, the Veteran being an unreliable historian, the matter being beyond the current state of learning and knowledge in the relevant field of medicine, or a lack of an adequate factual basis in the record upon which to form an opinion. 2. Following completion of all indicated development, the RO must readjudicate the claim for a separate disability rating for neurologic impairment, to include lumbar radiculopathy, in light of all the evidence of record. If a separate rating for neurologic impairment is not warranted, the issue of whether an increased rating is warranted on an extraschedular basis must be addressed. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with an SSOC and afforded a reasonable opportunity for response. 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). 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs