Citation Nr: 1308364 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-30 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine musculoligamentous strain prior to December 12, 2011. 2. Entitlement to an initial disability rating in excess of 40 percent for service-connected lumbar spine musculoligamentous strain from December 12, 2011. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) prior to January 5, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from January 1996 to March 1996. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Service connection for lumbar spine musculoligamentous strain was granted in a December 2006 rating decision and a 10 percent disability evaluation was assigned, effective May 31, 2006. In an August 2007 rating decision the evaluation was increased to 20 percent, effective May 31, 2006. In an August 2012 rating decision, the RO increased the evaluation to a 40 percent rating, effective December 12, 2011. The Board notes that since the increases to 20 percent and 40 percent did not constitute a full grant of the benefits sought, the increased rating issues remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified before the undersigned Veterans Law Judge in October 2009. A transcript of the hearing is associated with the claims file. In June 2010 and November 2011 decisions, the Board remanded these issues for additional development. The issue of entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to her service-connected right knee disability was raised by the Veteran's representative in a January 2013 brief but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issue and it is referred to the AOJ for appropriate action. The Board observes that the Veteran's representative has made vague references to CUE involving the Veteran's claims for service connection for GERD, sciatica, and claim for a higher evaluation for her back disability. The matter of entitlement to service connection for GERD has not been adjudicated and is referred to the RO for further action. The matter of entitlement to a higher evaluation for her back disability to include a rating in excess of 20 percent prior to December 2011 is addressed in this decision. With respect to the sciatica issue, the Veteran is advised that a claim of CUE must be pled with specificity. The Veteran has not identified which decision she takes issue with. If she wishes to challenge a rating decision on the basis of CUE, she is advised to submit a claim to the RO. However, the Board notes that the issue of entitlement to service connection for sciatica was denied by the Board in a November 2011 decision. See 38 C.F.R. § 20.1104 (Board affirmation of RO decision subsumes RO decision). Should she wish to file a motion for revision of the Board's November 2011 based on CUE, the Board invites the attention of the Veteran and her representative to the Board's Rules of Practice concerning motions to revise Board decisions based on CUE found in 38 C.F.R. § 20.1400 et seq. See Chairman's Memorandum 01-99-09, Adjudication of Motions for Review of Prior BVA Decisions on the Grounds of Clear and Unmistakable Error (February 19, 1999) (if it is unclear whether an appellant or representative is attempting to raise the issue of CUE in a prior Board decision, the VLJ may note this in the "Introduction" section of the appellate decision and invite attention to the Board's Rules of Practice concerning CUE motions). The issue of entitlement to a TDIU prior to January 5, 2009 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to December 12, 2011, the competent medical and other evidence of record fails to reflect that the Veteran's service-connected lumbar spine musculoligamentous strain manifests in forward flexion of the thoracolumbar spine to 30 degrees, favorable ankylosis of the entire thoracolumbar spine, doctor-prescribed incapacitating episodes during any 12 month period or objective neurological manifestations. 2. Since December 12, 2011, the Veteran's service-connected lumbar spine musculoligamentous strain, has been manifested by pain and limitation of motion, but not but not by incapacitating episodes or unfavorable ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. For the time period prior to December 12, 2011, the criteria for an initial evaluation in excess of 20 percent for the Veteran's service-connected lumbar spine musculoligamentous strain have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5237 - 5243 (2012). 2. For the time period since December 12, 2011, the criteria for an initial evaluation in excess of 40 percent for the Veteran's service-connected lumbar spine musculoligamentous strain have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5237 - 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a January 2009 letter, the RO letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The January 2009 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the January 2009 letter, and opportunity for the Veteran to respond, the August 2012 supplemental statement of the case (SSOC) reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Furthermore, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of August 2006, June 2007, September 2008, February 2009 and December 2011 VA examinations. The examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. As such, the Board finds that the August 2006, June 2007, September 2008, February 2009 and December 2011 VA examination reports are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative. The Board finds that no additional RO action to further develop the record on the claims is warranted. Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing her claim when her disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran 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. See 38 C.F.R. § 4.40 (2012). The provisions of 38 C.F.R. §4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the 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. See 38 C.F.R. § 4.59 (2012). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Veteran's service-connected back disability is currently evaluated as 20 percent disabling prior to December 12, 2011, and as 40 percent disabling as of that date per 38 C.F.R. § 4.71a, Diagnostic Code 5237. The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and 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. 38 C.F.R. § 4.71a. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). As enumerated above, the Veteran may only be availed if the competent medical and other evidence of record reflects no less than either (1) incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months or (2) forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. See the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and The General Rating Formula for Diseases and Injuries of the Spine, respectively. Factual Background and Analysis The Veteran underwent a VA examination in August 2006. She reported that she had injured her back when she fell on a flight of stairs. Previously, she had complained of bilateral sciatica. She presented with complaints of severe low back pain as well as a pinching sensation. She noted that the pain emanated from her lower back and radiated through the buttocks bilaterally. It also radiated down the legs. She indicated that the severity of her symptoms limit her sitting to 30 minutes. She could only walk 4 blocks and avoided heavy lifting. She did not use a back brace or any assistive devices. There were no flare-ups as her symptoms were constant. There was no painful range of motion, no instability in the back, no incontinence, no complaints of the cervical or thoracic spine and no periods of incapacitation requiring physician prescribed bedrest. She walked unaided. There was no time lost from work but she reported that her back adversely affected her daily activities. On examination, there was no leg or foot weakness numbness, visual dysfunction paresthesias, falls, dizziness, unsteadiness, urinary retention or obstipation. There were no flare-ups and no fatigue, decreased motion, stiffness, weakness or spasm. There was pain of the low back that was constant and moderate to severe. The pain radiated to the buttocks. Gait, posture and head position were normal. There was symmetry in appearance. There was no gibbus, kyphosis, list, scoliosis, or reverse lordosis. There was moderate lumbar lordosis. There was no ankylosis. Range of motion readings demonstrated flexion from 0 to 70 degrees, extension from 0 to 20 degrees, left lateral flexion from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral rotation from 0 to 30 degrees and right lateral rotation from 0 to 30 degrees. There was no additional loss of motion on repetitive use of the joint due to pain, fatigue, weakness or lack of endurance. The sensory examination was normal. The diagnosis was episodes of strain of lumbosacral spine of musculoligamentous origin. An August 2006 VA examination diagnosed the Veteran with sciatica with neuropathy that was secondary to her service-connected right knee sprain/tendonitis. The Veteran underwent a VA examination in June 2007. She presented with complaints of sharp pain from her back which radiated down her left leg. On examination, she had limited flexion and extension. She ambulated with a cane. Sensation was intact to the left and muscle strength was 5/5. An MRI revealed a small central disc protrusion at L5-S1 with mild bilateral facet degenerative disease. She reported constant mild pain that occurred daily and radiated to the left posterior thigh, calf and ankle. There were no periods of incapacitation requiring physician prescribed bedrest. There was no spasm, atrophy, tenderness or weakness. She did have guarding and pain with motion but it was not severe enough to result in abnormal gait or spinal contour. Her posture and head position were normal. There was symmetry in appearance and the gait type was antalgic. There was no gibbus, kyphosis, list, scoliosis, reverse lordosis or lumbar lordosis. There was no ankylosis. Muscle tone was normal and there was no atrophy. A sensory examination was normal. Flexion was from 0 to 50 degrees with pain at 50 degrees on active and passive motion. Extension was from 0 to 20 degrees with pain at 20 degrees on active and passive motion. Left lateral flexion was from 0 to 25 degrees with pain at 25 degrees on active and passive motion. Right lateral flexion was from 0 to 25 degrees with no pain on active and passive motion. Left lateral rotation was from 0 to 25 degrees with pain at 25 degrees on active and passive motion. Right lateral flexion was from 0 to 30 degrees with no pain on active and passive motion. There was no additional loss of motion on repetitive use of the joint due to pain, fatigue, weakness or lack of endurance. In a July 2007 VA addendum, a VA examiner noted that the Veteran's L5-S2 disk herniation was less likely than not due to the fall which occurred due to her service-connected right knee giving way. The Veteran underwent a VA peripheral nerves examination in September 2008. The examiner found that the Veteran's bilateral sciatica was at least as likely as not caused by or a result of a service-connected lumbar spine condition. In a December 2008 VA addendum, the VA examiner noted that the Veteran was service-connected only for musculoligamentous strain of the lumbar spine and had been denied service connection for lumbar disc disease. The examiner then explained that, whereas radiculopathy symptoms, such as sciatica, are most likely secondary to disk disease of the lumbar spine and, whereas the Veteran has been denied service connection for lumbar disk disease of the lumbar spine, it is less likely that that Veteran's symptoms of sciatica are due to, or a result of, her lumbosacral strain, as it is most likely her sciatica symptoms are due to or a result of her lumbar disk disease. The Veteran underwent a VA examination in February 2009. She presented with complaints of daily back pain and stiffness. Flare-ups occurred with movements with movement and in the mornings. These may last a few hours and functional impairment occurred because she avoided most activities. She used a cane which helped but used no other devices. She was not unsteady but did fall. She denied any incapacitating episodes of back pain or neck pain where bedrest was prescribed. On examination, forward flexion was 0 to 40 degrees, extension was 0 to 20 degrees and lateral rotation and flexion was 0 to 20 degrees. All of these movements were done with moderate difficulty and moderate pain. On three additional exercises, forward flexion was 0 to 40 degrees with pain beginning at 20 degrees. She complained of moderate pain and had moderate to severe weakness and fatigue but no incoordination. The major functional impact was pain with repetitive use. The examiner could not determine additional limitation following repetitive use during flare-ups as this would be speculative. However, the Veteran did note that she did not have additional limitation of motion following repetitive use. Pulses and sensations were intact. The Veteran underwent a VA examination in December 2011. The examiner noted that the Veteran had a diagnosis of lumbar spine musculoligamentous strain with degenerative disc disease. She presented with complaints of persistent low back pain, stiffness, achiness, and tightness with occasional spasming affecting the lower back. She reported flare-ups that included spasms that occurred at least twice a week. These could be precipitated by over-exertion with long standing, prolonged walking or attempts at bending, lifting or twisting. She had undergone physical therapy in the past and continued to do stretching at home. She will ambulate with a cane on occasion during flare-ups. She reported tolerating standing 20 to 25 minutes and could walk up to 2 blocks. She described difficulties with prolonged sitting and could tolerate driving or riding in a car for only 30 or 60 minutes at a time. She did have symptoms of radiculopathy but it was deemed that the disc protrusions, as found at the lumbar spine, were not service-connected. The examiner opined that the symptoms of radiculopathy were less likely than not due to the service-connected musculoligamentous strain. It was however at least as likely as not that the Veteran's service-connected musculoligamentous strain contributed to the other reported symptoms of stiffness, aching and spasming. The examiner was unable to separate out any specific symptoms or degree of symptomatology of the low back that was due specifically to the protrusion of the disc or due specifically to the musculoligamentous strain as these were intertwined and would be unable to separate the overlapping symptoms as it would affect the low back. The examiner also noted that the Veteran did not report episodes of complete incapacity in the past year as a direct result of her service-connected musculoligamentous strain. During her flare-ups, she did experience increased pain and decreased range of motion and mobility. The examiner reported that there was a decrease in the range of motion followed repetitive range of motion in accordance with DeLuca. However, the degree of further limitation during a time of flare-up would require resorting to mere speculation as the Veteran was not experiencing a flare-up at the time of the evaluation to document any objective loss of function or decrease in range of motion and a decrease in mobility during the flare-ups. The Veteran had been unemployed since 2006. Her service-connected back disability did result in significant difficulties with occupational duties that would require prolonged standing and prolonged sitting as well as occupational duties that would require bending, standing, lifting, twisting, carrying, climbing, crawling or reaching. She did have problems with her daily activities such as outdoor chores or recreational activities that required lifting, bending, twisting or carrying. On examination, forward flexion was 0 to 45 degrees with pain beginning at 25 degrees. Extension was from 0 to 15 degrees with pain at 5 degrees. Right lateral flexion was from 0 to 20 degrees with pain at 15 degrees. Left lateral flexion was from 0 to 20 degrees with pain beginning at 10 degrees. Right lateral rotation was from 0 to 20 degrees with pain at 15 degrees. Left lateral rotation was from 0 to 20 degrees with pain at 10 degrees. After 3 repetitive motions, forward flexion was from 0 to 30 degrees. Extension was 0 to 10 degrees. Right lateral flexion was 0 to 20 degrees. Left lateral flexion was 0 to 15 degrees. Right lateral rotation was 0 to 20 degrees and left lateral rotation was 0 to 15 degrees. The examiner noted that the Veteran had additional functional loss following repetitive use testing as he had less movement than normal and pain on movement. She also had tenderness to the midline lumbar and paralumbar regions. Guarding and muscle spasms were present but did not result in abnormal gait or spinal contour. She did not have atrophy and her muscle strength was normal. She did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disability such as bowel or bladder dysfunction. The Veteran occasionally used a cane. She had arthritis but did not have a vertebral fracture. The diagnosis was moderate degenerative changes in the lower lumbar spine. Period Prior to December 12, 2011 Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The June 2007 and February 2009 VA examination reports noted that the Veteran had not had any incapacitating episodes of back pain in the last 12 months. Therefore, a higher rating based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on her orthopedic and neurological manifestations. Turning to the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). Such impairment was simply not documented as forward flexion of her thoracolumbar spine was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates her for the extent of functional loss resulting from any such symptoms. Although it was noted on the February 2009 VA examination report that the Veteran exhibited pain on lumbar spine motion and had additional loss of motion due to pain, the functional loss is not equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. As noted above, the February 2009 VA examiner indicated that the Veteran's forward flexion was limited to 40 degrees with pain starting at 20 degrees after repetitive motion. While pain was noted to begin at 20 degrees, the records does not show that such symptoms resulted in flexion limited to 30 degrees or less even after repetitive use. Further, the Veteran's spine is not ankylosed since she has demonstrated the ability to flex, extend, and laterally flex and rotate; thus, the criteria for an initial 40 percent evaluation have not been met prior to December 12, 2011. Thus, the Board finds that the 20 percent evaluation assigned during this period adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of her low back strain. Regarding her neurological findings, the Board notes that the Veteran has been found to have bilateral sciatica. However, as determined by previous rating decisions and the Board's November 2011 decision, the Veteran's sciatica with neuropathy is not secondary to a service-connected disability to include the Veteran's lumbar spine musculoligamentous strain. As noted above, the December 2008 VA examiner indicated that it was less likely that that Veteran's symptoms of sciatica are due to, or a result of, her service-connected lumbosacral strain as it was most likely that her sciatica symptoms are due to or a result of her nonservice-connected lumbar disk disease. As a result, the Veteran is not entitled to a separate rating for her neurological symptoms. In sum, an evaluation in excess of 20 percent rating for lumbar spine musculoligamentous strain is not warranted at any time during the applicable period prior to December 12, 2011. See Fenderson, supra. Period beginning on December 12, 2011 Initially, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The December 2011 VA examination report noted that while the Veteran had daily flare-ups, she did not report any incapacitating episodes of back pain in the last 12 months. Therefore, a higher rating based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Turning to the orthopedic manifestations, the limited thoracolumbar forward flexion shown by the Veteran at her December 2011 VA examination warrants a disability rating of 40 percent; however, no higher disability rating may be assigned under the general spine formula on the basis of loss of thoracolumbar motion alone. Rather, in order for the Veteran to be awarded a disability rating higher than 40 percent under the general spine formula, the evidence must show the presence of spinal ankylosis. As discussed in detail above, the evidence fails to demonstrate unfavorable ankylosis of the entire thoracolumbar spine to obtain a higher evaluation. See supra 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). In that regard, the evidence simply does not show any ankylosis of the lumbar spine. In fact, the aforementioned range of motion findings do not demonstrate that the joint was immobile or fixed in place. As the Veteran has not been noted to have ankylosis of the spine at any time, the Board finds that an initial rating in excess of 40 percent is not warranted from December 12, 2011 for her orthopedic findings. Regarding her neurological symptoms, as noted above, the December 2011 VA examiner found that the radiculopathy symptoms of any kind as affecting the lower extremities were likely due to disc protrusions and therefore less likely due to musculoligamentous strain of the lumbar spine specifically. As a result, the Veteran is not entitled to a separate rating for her neurological symptoms. In sum, an evaluation in excess of 40 percent rating for lumbar spine musculoligamentous strain is not warranted at any time during the applicable period beginning on December 12, 2011. See Fenderson, supra. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected back disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating 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). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of her back disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine musculoligamentous strain prior to December 12, 2011 is denied. Entitlement to an initial disability rating in excess of 40 percent for service-connected lumbar spine musculoligamentous strain from December 12, 2011 is denied. REMAND As noted above, the RO has also not yet adjudicated the issue of entitlement to service connection for GERD as secondary to a service-connected right knee disability and it is being referred to the RO for appropriate action. The Board finds that the Veteran's claim for service connection for GERD is inextricably intertwined with her current claim for an earlier effective date for her TDIU. The Board has reached this conclusion because adjudication of the earlier effective date claim for a TDIU would take into account, among other things, when the Veteran first became entitled to service connection for sciatica and GERD. See 38 C.F.R. § 4.16(a), (b) (2012). Accordingly, a decision on the merits as to any of this remaining claim for an earlier effective date for a TDIU would be premature at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should first fully adjudicate the referred issues of entitlement to service connection for GERD as secondary to her service-connected right knee disability. The RO/AMC should notify the Veteran that if she disagrees with the RO/AMC's determination with regard to her GERD claim, she must file a timely Notice of Disagreement to initiate an appeal as to that issue. 3. After completion of the above, and if still appropriate, the issue of entitlement to a TDIU prior to January 5, 2009 should be readjudicated. Unless the benefit sought on appeal is granted, the Veteran and her representative should be furnished an appropriate supplemental statement of the case (SSOC) and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs