Citation Nr: 1308574 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-12 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for left hip disability. 2. Entitlement to service connection for right hip disability. 3. Entitlement to an initial increased rating for peripheral neuropathy of the right lower extremity, to include diabetic peripheral neuropathy, currently rated at 20 percent. 4. Entitlement to an initial increased rating for peripheral neuropathy of the left lower extremity, to include diabetic peripheral neuropathy, currently rated at 20 percent. 5. Entitlement to an increased rating for thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis, currently rated at 20 percent. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from June 1960 to November 1963 and from March 1964 to February 1991. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). The May 2007 rating decision granted service connection for posttraumatic stress disorder (PTSD), peripheral neuropathy right lower extremity, and peripheral neuropathy left lower extremity; continued the 10 percent rating for thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis and the noncompensable (0 percent) rating for hyperkeratosis of the bilateral arms and hands; denied service connection for right foot neuropathy, left foot neuropathy, right hip disorder, left hip disorder, gastrointestinal disorder, sleep apnea, abnormal foot growth, and gingivitis with gum disease and loss of teeth; and refused to reopen the Veteran's claim of service connection for hypertension. In December 2007, the Veteran filed a notice of disagreement with that decision on the issues of an increased initial evaluation for peripheral neuropathy bilateral lower extremities; an increased evaluation for thoracic spine degenerative disc disease; service connection for neuropathy of the bilateral feet, bilateral hip disorders, stomach problems (to include as secondary to service connected PTSD), sleep apnea, abnormal foot growth; and reopening his claim for hypertension. In his April 2009 VA Form 9, despite checking the box that indicated that he wished to appeal all of the issues listed on his March 2009 Statement of the Case, the Veteran withdrew his claims for stomach problems and abnormal foot growth in the narrative. As such, those matters are not before the Board. In an October 2010 rating decision, the Veteran was granted service connection for sleep apnea, hypertension, and diabetic peripheral neuropathy of the bilateral lower extremities. This represents a full grant of the benefit sought with regard to the service connection claims. This October 2010 rating decision also increased the disability evaluations for peripheral radiculopathy (now combined with diabetic peripheral neuropathy) of the lower extremities to 20 percent each, effective February 22, 2010, and for thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis to 20 percent, effective February 27, 2010; thereby staging these disability ratings. In a December 2010 statement, the Veteran expressed his disagreement with the disability evaluation for radiculopathy of the bilateral lower extremities and his back. Inasmuch as higher ratings are available and the Veteran is presumed to be seeking the maximum available benefit for a given disability, the claims for higher ratings, as reflected on the title page, remain viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. These documents were review in conjunction with this decision. The issues of entitlement to initial evaluations in excess of 20 percent for peripheral neuropathy of the lower extremities from May 5, 2011 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Chronic left hip disability did not have its clinical onset in service and is not otherwise related to active duty. 2. Chronic right hip disability did not have its clinical onset in service and is not otherwise related to active duty. 3. Prior to February 22, 2010, peripheral neuropathy of the lower extremities was characterized by hip, leg, and foot pain as well as foot numbness equivalent to no more than mild incomplete paralysis of the sciatic nerve. 4. From February 22, 2010, to May 5, 2011, peripheral neuropathy of the lower extremities was characterized by increased pain and additional functional limitations, including increased limitation of his ability to walk equivalent to no more than moderate incomplete paralysis of the sciatic nerve. 5. Prior to February 27, 2010, thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis was characterized by pain, scoliosis. and limitation of flexion to no less than 75 degrees, but not by incapacitating episodes. 6. As of February 27, 2010, thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis has been characterized by pain, limitation of motion to no less than 40 degrees, and muscle spasm, but not by incapacitating episodes. CONCLUSIONS OF LAW 1. A left hip disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). 2. A right hip disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2012). 3. Prior to February 22, 2010, the criteria for an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2012). 4. Prior to February 22, 2010, the criteria for an initial evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2012). 5. From February 22, 2010, to May 5, 2011, the criteria for an initial evaluation in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2012). 6. From February 22, 2010, to May 5, 2011, the criteria for an initial evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, 4.124a, Diagnostic Code 8520 (2012). 7. Prior to February 27, 2010, the criteria for an evaluation in excess of 10 percent for thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012). 8. As of February 27, 2010, the criteria for an evaluation in excess of 20 percent for thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's neuropathy claims arise from an appeal of the initial evaluations following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with regard to these claims. In a claim for increase, such as the Veteran's back disability claim, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, 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). Here, the Veteran was sent a letter in December 2005 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Complete notice including an explanation of what type of information and evidence was needed to establish a disability rating and effective date, was issue with regard to the increased rating claims in a February 2012 letter. These claims were thereafter readjudicated in a November 2012 Supplemental Statement of the Case. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the service connection claims, the Veteran was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Bilateral Hips Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of the claim). The objective evidence of record does not show a right or left hip disability. To the extent that the Veteran has reported the symptom of bilateral hip pain, this has been associated with his neuropathy of the bilateral lower extremities. See February 2010 VA examination. As such, the Veteran's bilateral hip pain is considered below in conjunction with his evaluation for peripheral neuropathy of the bilateral lower extremities. To award an additional rating for the same symptom would violate the rule against pyramiding. See 38 C.F.R. §§ 4.14, 4.118. Furthermore, the record does not establish an in-service onset of hip disability or an injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's service treatment records are silent with regard to a diagnosis of, complaints of, or treatment for a disability of either hip. The Veteran himself has not provided lay evidence of any such in-service incident and a review of his lay statements including his memoirs does not readily reveal such an incident. In sum, the preponderance of the evidence is against a finding of bilateral hip disabilities. Thus the Veteran is not found to have a current right or left hip disability and in the absence of evidence of a current disability, the claim must fail. Brammer, 3 Vet. App. 223, 225. The benefit sought on appeal is accordingly denied since there is no reasonable doubt to resolve in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Initial Ratings - Neuropathy of the Lower Extremities The May 2007 rating decision at issue granted service connection for peripheral neuropathy of the lower extremities and assigned separate 10 percent evaluations, effective October 18, 2005. The Veteran appealed those evaluations. See Fenderson v. West, 12 Vet. App 119 (1999). During the pendency of this appeal, the Veteran was awarded service connection for diabetic peripheral neuropathy of the lower extremities. See October 2010 rating decision. These disabilities were combined and the evaluation for each lower extremity was increased to 20 percent, effective February 22, 2010, the date of the VA examination. Thus, this initial rating was staged. See generally Fenderson, 12 Vet. App. 119 (allowing for the assignment of multiple ["staged"] ratings for different periods of time during the pendency of the appeal based on the corresponding severity of symptoms); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). As explained below, the Board finds that a staged disability evaluation is still warranted. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity, 20 percent rating for moderate incomplete paralysis of the sciatic nerve in either lower extremity, a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve in either lower extremity, and a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked musculature atrophy in either lower extremity. 38 C.F.R. § 4.124a. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. From October 18, 2005, to February 22, 2010 During the period of the first staged evaluation, the Veteran reported symptoms of pain and numbness in the toes and feet, especially at night. See e.g., June 2005 VA outpatient treatment record. This caused him to limp after walking a few blocks. See id. Later records suggest that the Veteran's neuropathy of the lower extremities was improved with proper medication. See October 2007 VA outpatient treatment record. Additionally, the Veteran reported bilateral hip pain. Based on the above, the Veteran's symptoms most nearly approximate the criteria for the existing 10 percent evaluations during this first period. During this period, these disabilities caused pain and numbness and interfered with the Veteran's ability to walk. There was no showing of muscle atrophy or more than mild motor and sensory impairment. The record indicates that the Veteran's condition was improved with medication. These symptoms more nearly approximate the criteria of mild incomplete paralysis of the sciatic nerve than moderate incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8520. Therefore, the preponderance of the evidence is against the assignment of initial ratings in excess of 10 percent each for peripheral neuropathy of the right and left lower extremities. 38 C.F.R. § 4.7. The Board has also considered whether a higher evaluation is available under another diagnostic code, but finds that the Veteran's symptoms are better addressed under the criteria for the sciatic nerve and observes that mild incomplete paralysis of a peripheral nerve does not warrant an evaluation above 10 percent in any diagnostic code. See 38 C.F.R. § 4.124a, DC 8521-8530. From February 22, 2010, to May 5, 2011 The February 22, 2010 VA examination noted the Veteran's complaints of tingling in feet; burning, aching, and stabbing pain; numbness; and decreased leg strength. Based on the subjective symptoms, the Veteran's neuropathy was severe. Achilles tendon reflexes were present bilaterally. Vibration sensation, pinprick sensation, and temperature sensation were reduced. Based on the objective symptoms; moderate. The February 27, 2010 VA spine examination noted that the Veteran's calf and thigh measurements were equal and within normal limits when compared to his body habitus. There was a decrease in sensation and the examiner estimated that the neurologic signs were consistent with moderate neuropathy. This examiner found that the Veteran's bilateral hip pain was part of his sciatica. The additional symptoms and functional limitations described since the February 22, 2010, examination warrants the increased evaluations to 20 percent each, but not more. The subjective evidence includes complaints of pain, numbness, and decreased leg strength. The objective findings show loss of sensation, but no atrophy or loss of leg girth. The Veteran described severe symptoms but objective findings were moderate and mostly sensory, in keeping with the currently assigned 20 percent evaluations. See 38 C.F.R. § 4.124a, DC 8520. The record does not support an evaluation in excess of 20 percent. The Veteran's reported difficulties with walking, while worsened from the prior period still do not rise to the level of moderately severe incomplete paralysis. In fact, most of the increase in symptoms was subjective; there was no sign of atrophy and reflexes were diminished, but not absent. See 38 C.F.R. § 4.124a, DC 8520. For these reasons, the Board finds that a 40 percent evaluation is not warranted for either lower extremity. Therefore, the preponderance of the evidence is against the assignment of evaluations in excess of 20 percent for peripheral neuropathy of the right and left lower extremities from February 22, 2010, to May 5, 2011. 38 C.F.R. § 4.7. Again, the Board considered whether a higher evaluation is available under another diagnostic code, but finds that the Veteran's symptoms are better addressed under the criteria for the sciatic nerve, which provides the highest disability evaluation of all the peripheral nerve diagnostic codes for moderate incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8521-8530. Increased Ratings - Back Disability The Veteran was originally granted service connection for degenerative disc disease L5-S1 with intermittent lumbosacral strain and spondylolysis thoracic spine in a March 1992 rating decision. At that time he was awarded a 10 percent disability evaluation. The Veteran filed a claim for an increased disability rating in October 2005. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). During the pendency of this appeal, the Veteran was awarded an increased disability rating of 20 percent, effective February 27, 2010. See October 2010 rating decision. Thus, the existing disability rating has been staged. See Hart, 21 Vet. App. 505 (allowing for different levels of compensation from the time the increased rating claim is filed to the time a final decision is made where the Veteran has experienced multiple distinct degrees of disability). The Board must evaluate this claim in its entirety to determine whether this or an alternately staged evaluation is most appropriate during the period of the claim. See id. Disabilities of the spine, such as degenerative disc disease, are rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A 20 percent disability rating is warranted for 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. Id. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Normal ranges of motion of the thoracolumbar spine are flexion from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, lateral flexion 0 degrees to 30 degrees bilaterally, and lateral rotation from 0 degrees to 30 degrees bilaterally. 38 C.F.R. § 4.71, Plate V; see also 38 C.F.R. § 4.71, General Rating Formula for Diseases and Injuries of the Spine, Note 2. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran underwent a VA examination in January 2006 in conjunction with this claim. At that time, the Veteran complained of back pain. Arthritic degenerative changes were shown on x-ray. Physical examination revealed a mild degree of scoliosis of the thoracolumbar spine with concavity to the left at the lower thoracic and upper lumbar levels. The Veteran's gait was normal and his exhibited no difficulty rising from his chair. Sensory function intact. The Veteran's range of motion was forward flexion from zero to 75 degrees without pain, zero to 30 degrees extension with pain at 28 degrees. Left lateral flexion was zero to 40 degrees with pain beginning at 30 degrees. After five repetitions it was from zero to 40 degrees with an increase in pain to the right of the spine in the lower lumbar region. Right lateral rotation was zero to 31 degrees without pain. After five repetitions it was from zero to 32 degrees with a report of a "twinge" on the right side of the spine during the fifth repetition. Left lateral rotation was from zero to 26 degrees with pain reported at 26 degrees localized to the intracapsular thoracic level musculature. After five repetitions it was from zero to 32 degrees with no change. Right lateral rotation was from zero to 26 degrees with pain reported to the right of the lumbar spine at 26 degrees. After five repetitions it was from zero to 26 degrees with a slight increase in pain. He reported no bladder or bowel incontinence or erectile dysfunction. In his April 2009 VA Form 9, the Veteran disagreed with this examination's findings, stating that he could not normally bend forward more than 45 degrees. The Veteran is competent to provide lay evidence of his lay observable symptoms and the approximate degree of forward flexion is lay observable. However, the Board is not convinced of the credibility of the Veteran's lay statement regarding his limitation of motion and finds it to be of significantly less probative weight than the other objective findings regarding his range of motion. Specifically, the recorded range of motion findings in both the June 2006 and May 2011 VA examinations show forward flexion well beyond 45 degrees, showing that both during this period and the later staged period the Veteran's forward flexion has been objectively measured beyond 45 degrees. Likewise, the June 2006 examiner noted that the Veteran had no difficulty rising from his chair at the time of the examination. These findings all suggest forward flexion well beyond the 45 degrees he reports. The Veteran may not have utilized his full range of motion on a regular basis for whatever reasons, but this is not akin to limitation of forward flexion to 45 degrees. Thus, prior to February 27, 2010, the Veteran's back disability most nearly approximated the criteria for the existing 10 percent evaluation and no more. During this time period, the credible evidence of record shows forward flexion limited to 75 degrees, without additional functional loss due to pain, and is commensurate with the criteria for the 10 percent evaluation already in effect. See 38 C.F.R. § 4.71a, Diagnostic Code 5242; see also Deluca, 8 Vet. App. 202. The next-higher evaluation of 20 percent requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding. Id. None of these criteria was met with regards to the Veteran's low back disability prior to February 27, 2010. As the record does not show incapacitating episodes, evaluation under Diagnostic Code 5243 is not warranted. 38 C.F.R. § 4.71a. Thus, the Board determines that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran's back disability prior to February 27, 2010. 38 C.F.R. § 4.7. From February 27, 2010, to Present On February 27, 2010, the Veteran underwent another VA examination in conjunction with this claim. At that time, his range of motion was forward flexion to 40 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. Repetition revealed pain, excessive fatigability, incoordination, weakened movement, and flares. Forward flexion between 30 and 40 degrees produced muscle spasm. The Veteran had not been prescribed bed rest for this disability. The Veteran again underwent a VA examination for this disability in May 5, 2011. He reported back tenderness, but no physician-prescribed bed rest. His range of motion was forward flexion from zero to 84 degrees, extension from zero to 10 degrees, right lateral flexion from zero to 18 degrees, left lateral flexion from zero to 17 degrees, right lateral rotation from zero to 15 degrees, and left lateral rotation from zero to 21 degrees. No additional pain or functional limitation was found upon repetition. The lay evidence during this period indicates that the Veteran continued to suffer from back pain. See e.g., Veteran's wife's June 2011 statement. The record shows forward flexion limited to 40 degrees, during this time period, and is commensurate with the criteria for the 20 percent evaluation already in effect. See 38 C.F.R. § 4.71a, Diagnostic Code 5242; see also Deluca, 8 Vet. App. 202. The next-higher evaluation of 40 percent requires forward flexion less than 30; or, favorable ankylosis of the entire thoracolumbar spine. Id. None of these criteria was met with regards to the Veteran's back disability. Instead, the May 2011 VA examination suggests improved range of motion. Again the record does not show incapacitating episodes; therefore, evaluation under Diagnostic Code 5243 is not warranted. 38 C.F.R. § 4.71a. Thus, the Board determines that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's back disability prior to February 27, 2010. 38 C.F.R. § 4.7. Neurological Symptoms The Board has also considered whether separate compensation is warranted for neurological symptoms. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. In this case, the Board notes that the Veteran is already receiving separate evaluation for peripheral neuropathy of the bilateral lower extremities and those evaluations were discussed above. The evidence does not reflect bladder or bowel dysfunction or any other neurological symptoms associated with this disability. As such, separate ratings for additional neurologic abnormalities are not warranted. See 38 C.F.R. § 4.71a, Note (1). Extraschedular Considerations and TDIU The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities, but the medical evidence reflects that those manifestations are not present in this case. The diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder and service-connected disability is not shown to require frequent hospitalization or result in marked interference with employment. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. The Veteran raised the issue of entitlement to a total rating for compensation based on individual unemployability (TDIU) in December 2010. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), TDIU is considered an element of initial ratings when raised by the record. The Veteran was found to be unemployable in a May 2011 VA examination. The Board notes that the Veteran is currently in receipt of a combined total disability rating since January 14, 2011. Prior to that he was awarded TDIU from December 10, 2010 to January 14, 2011. The Veteran did not claim and the record did not suggest that service-connected disability precluded employment at any earlier time. ORDER Service connection for a left hip disability is denied. Service connection for a right hip disability is denied. An initial increased rating for peripheral neuropathy of the right lower extremity prior to May 5, 2011, currently rated at 20 percent, is denied. An initial increased rating for peripheral neuropathy of the left lower extremity prior to May 5, 2011, currently rated at 20 percent, is denied. An increased rating for thoracic spine degenerative disc disease with lumbosacral strain and spondylolysis, currently rated at 20 percent, is denied. REMAND The May 5, 2011 VA examination noted that the Veteran used a walking stick to ambulate. The foot numbness was worse in the left than in the right foot. It was noted that there was no sensation to vibration in the great toes and diminished sensation to monofilament to the upper calves. It was estimated that peripheral neuropathy to the upper calves was severe. These findings suggest a possible worsening of the Veteran's symptoms since that examination, but there was no report of motor impairment and the reported symptoms were not detailed enough for rating purposes. As such, another, more complete neurological examination is necessary in order to determine the severity of these disabilities as of May 5, 2011. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran for a VA neurologic examination to determine the current nature and severity of his peripheral neuropathy of the lower extremities. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. After review of the claims file and examination of the Veteran, the examiner should identify the nerves affected and discuss the severity (whether the involvement is only sensory, or if it is characterized by loss of reflexes, muscle atrophy, sensory disturbances, constant pain, etc.) of any associated neurological impairment. In considering the degree of impairment involving any nerve of the lower extremities, the examiner should assess this severity according to the rating criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520, in terms of whether there is what amounts to complete versus incomplete paralysis; and whether it is mild, moderate, moderately severe, or severe. A complete rationale should accompany all opinions provided. 2. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs