Citation Nr: 1310192 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-23 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to a disability rating in excess of 40 percent for service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active duty from September 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. In August 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. This case was previously before the Board in September 2011 and remanded for additional development. For the reasons discussed below, the Board finds that there has been substantial compliance with the mandates of the September 2011 remand and will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT During the period on appeal, the appellant's service-connected low back disability was not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine, and separately ratable neurological symptoms or incapacitating episodes were not shown. CONCLUSION OF LAW A rating in excess of 40 percent for chronic low back strain with spondylolisthesis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claim. Appropriate notice was provided in January 2006 and February 2008 letters. The claim was subsequently readjudicated, most recently in a June 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible, including the private treatment records requested in the September 2011 Board remand. See Stegall, 11 Vet. App. at 268. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the appellant with appropriate VA examinations in June 2006, August 2007, and October 2011. The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and supported by VA treatment records and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. Additionally, the October 2011 VA examination was completed in compliance with the September 2011 Board remand. See Stegall, 11 Vet. App. at 268. II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (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 closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appellant's claim for an increased evaluation was received on January 12, 2006. As such, the rating period on appeal is from January 12, 2005. 38 C.F.R. § 3.400(o)(2) (2012). The appellant's lumbar spine disability has been evaluated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237, pertaining to lumbosacral strain. He asserts a higher evaluation is warranted throughout the appeal period. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 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, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Note 1 provides that VA must evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note 5 provides that 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. Under Diagnostic Code 5243, intervertebral disc syndrome may be rated either under the General Rating Formula for Disease 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. Intervetebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating . Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent evaluation. Note (1) provides that 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. III. Analysis As noted above, the appellant has been assigned an evaluation of 40 percent for his lumbar spine disability. For the reasons that follow, the Board concludes that a higher rating is not warranted. A February 2005 VA treatment record reflects that the appellant reported having back pain over the last four days which he described as a "spasm" affecting the area below his scapulae bilaterally. On examination, the back had a full range of motion without limitation or pain. Strength was 5/5 in all major muscle groups and in both lower extremities. The assessment was back muscle spasms in the mid to lower thoracic region. A March 2005 VA treatment record reflects that the appellant reported worsening of his low back pain. He reported having spasms on and off. On examination of the back, there was no tenderness along the paraspinal muscles. There was some decreased range of motion related to pain. A May 2005 private treatment record reflects that the appellant reported back pain that radiated into his right buttock and posteriorly down to his right knee. On examination, the back had 50 degrees of flexion and about 10 degrees of extension. He had full rotation and lateral flexion to both sides. Strength was 5/5 in all major muscle groups in both lower extremities. He had some mild muscle spasm in his right lower paraspinal area. The assessment was right lumbar radiculopathy. A January 2006 private treatment record indicates that the appellant complained of acute and chronic back pain. On examination, the back had flexion limited to 70 degrees, and full extension, lateral flexion and rotation. He had 5/5 strength in all major muscle groups in both lower extremities. Paraspinal muscles on the right in the lumbar area were mildly in spasm. The assessment was acute and chronic low back pain. Deep tendon reflexes were right knee jerk of 0 - 1+ and left knee jerk of 2+. By history and exam, it seemed he had an L4-5 radiculopathy although he had no motor deficit at that time. The appellant's back was evaluated at a VA examination in June 2006. The appellant reported that he had an increase in pain in his back if he tried to bend forward, such as trying to lift objects, as well as if attempting to walk more than 1/4 mile. He described having flare-ups three to four times a week with severe pain, lasting about an hour or so, relieved to some degree with medication and rest. On physical examination, the appellant had tightness in his lower back and a tendency toward the presence of lumbar spasm after standing for a while. The spine had forward flexion of 0 to 60 degrees. The examiner noted the presence of some pain on forward flexion and extension. Reflexes were present and symmetrical at the level of the knees and ankles. Muscle strength testing was 5/5 in both lower extremities. There was no sensory loss in either lower extremity. The appellant's gait was essentially slow without significant limp. The diagnosis was spondylolysis and spondylolisthesis, L5 and S1, with recurring chronic muscle spasm without documented radiculopathy. Leg pain was referred pain from chronic lumbar spasm. The examiner opined that the condition was likely as not the result of service-connected low back injury. The examiner noted that repetitive activity such as walking in excess of 1/2 mile or standing for long periods of time would cause an increase in pain, tightness of the lumbar musculature, increased fatigability and decreased ability to walk, as well as some general decrease in range of motion, 10 to 15 degrees of forward flexion. The repetitive activity would likely lead to flare-ups which occurred three to four times per week. The report reflects that some loss of range of motion likely accompanies the flare-ups with further restriction motion of anywhere between 10 and 15 degrees of forward flexion and 5 degrees of extension. Lateral flexion and rotation were unlikely to be significantly influenced by the flare-ups or repetitive activities. An August 2006 private treatment record from S.C., M.D., indicates that the appellant reported having lower back pain radiating to his left lower back and left upper buttock. He described the pain as sharp and not associated with any bladder or bowel dysfunction. Regarding function, he could mow his law for about an hour before he had to stop. If he had to push his lawnmower uphill he had to stop. On examination, the back had 55 degrees of flexion and about 5 degrees of extension. He had difficulty rotating to the right which was only about 60 percent. He could rotate fully to the left and flex to both sides. He had 5/5 strength in all major muscle groups. Deep tendon reflexes were symmetrical in both lower extremities with downgoing Babinski's. Straight leg raising was positive at 45 degrees on the right and crossed straight leg testing was positive on the left at 45 degrees. There was no paraspinal muscle spasm appreciated. The assessment was left lumbar radiculopathy. A September 2006 private treatment record reflects that on examination, the appellant had pain on extension as well as flexion. There were no neurologic deficits. X-rays showed isthmic spondylolisthesis at the L4-5 level with degenerative changes present. A September 2006 private treatment record from Dr. S.C. reflects that the appellant presented in follow up of spinal stenosis. He reported symptoms in his right lower back consisting of pain radiating to his right upper buttock over the last few days. He denied any weakness or paresthesias in his lower extremities, or any bladder or bowel dysfunction. On examination, the back had 35 degrees of flexion and full extension, rotation and lateral flexion. Strength was 5/5 in all major muscle groups in both lower extremities. Deep tendon reflexes were symmetrical in both lower extremities with downgoing Babinski's. Straight leg raising was positive at 35 degrees on the right and crossed straight leg raising was positive at 35 degrees on the left. The assessment was right lumbar radiculopathy most probably due to spinal stenosis. A September 2006 letter from a VA Nurse Practitioner reflects that the appellant was unable to work from July 31, 2006 to August 4, 2006 due to exacerbation of chronic back pain. His condition had worsened over the past several months and he experienced more frequent periods of disabling back pain. At a March 2007 RO hearing, the appellant stated that he was taking Vicodin and Trazodone for his back to help him sleep. (March 2007 RO Transcript (RO Tr.) at 2) He stated that he was a supervisor for the U.S. Postal Service which required him to be on his feet a lot. (Id.) The appellant reported that his back condition limited him from lifting and he was unable to participate in golf and skiing. (RO Tr. at 3) He reported having weekly exacerbations of the pain. He stated the pain went down to his lower extremities, especially on the right side. (RO Tr. at 4-5) The appellant stated that he had missed 20 to 30 days of work because of his back . (RO Tr. at 7) The appellant's spine was evaluated at another VA examination in August 2007. The appellant reported having increased back pain, increased narcotic use and more difficulty walking. There was no history of urinary problems. The appellant reported having obstipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness and unsteadiness. The examiner indicated that the etiology of these symptoms was not unrelated to the claimed disability. There was a history of fatigue, decreased motion, stiffness, weakness, spasms and pain in the lumbar spine. The appellant reported the pain was severe and lasted 1 to 2 days 1 to 6 days a week. There was radiation from the pain to the right leg. The appellant reported having severe weekly flare-ups lasting 1 to 2 days. The precipitating factor was "lots of standing." The appellant reported that he was unable to get off the couch and needed heat and medication during a flare-up. On examination, there was no spasm, atrophy, guarding, tenderness or weakness in the cervical sacrospinalis or thoracic sacrospinalis. There was pain with motion on the left and right of the thoracic sacrospinalis. The appellant's gait was antalgic. Muscle tone was normal. There was muscle atrophy on the right thigh and left thigh. A sensory examination revealed abnormal sensation on the posterior buttocks of the right side down to the upper posterior right thigh. There was no cervical spine or thoracolumbar spine ankylosis. The thoracolumbar spine had flexion of 0 to 46 degrees with pain beginning at 46 degrees. There was pain on repetitive use and additional loss of motion on repetitive use of the joint. The loss of motion on repetitive use was 0 to 30 degrees due to pain. The thoracolumbar spine had extension of 0 to 4 degrees, left and right lateral flexion of 0 to 18 degrees and right and left lateral rotation of 0 to 20 degrees with no additional loss of motion on repetitive use. An X-ray indicated spondylolysis at L5 with spondylolisthesis of 1st degree of L5 on S1. There was also hypertrophic degenerative changes and deformity of the right sacral alae related to transitional configuration. The August 2007 VA examination report reflects that the appellant was a manager for the postal service who had lost 5 to 7 weeks from work during the last 12 month period due to back and leg pain. The examiner noted the back disability had significant effects on the appellant's usual occupation, noting increased absenteeism. The examiner also noted the appellant had decreased mobility and strength of the lower extremities which prevented his ability to do chores, exercise, sports, and recreation and had a severe effect on shopping and traveling. An August 2007 VA examination of the peripheral nerves reflects that the appellant had right lumbar radiculopathy. In an August 2007 rating decision, the RO granted service connection for right leg radiculopathy with an evaluation of 10 percent effective May 10, 2005. A February 2008 private X-ray report of the spine reflects that the appellant had severe degenerative disk disease at L4-5 with a grade 2 anterolisthesis of L4 on L5, moderate to severe degenerative disk disease at L4-S1, moderate degenerative disk disease at L2-3 with arthritic bony spurring and bridging, and posterior sclerosis and degenerative change at L4-5 and L5-S1. A February 2008 private treatment record from Dr. S.C. indicates that the appellant complained of right lower back pain which radiated into his lower buttocks. On examination, the back had a limited range of motion consisting of 30 degrees of flexion. The assessment was left lumbar radiculopathy. Dr. S.C. noted that he reassure that he could not identify any neurologic or motor deficit in this context. The Board notes that as the appellant complained of radiating pain on the right side, it appears as if the assessment had a mistake and meant to refer to right radiculopathy. Another February 2008 private treatment record from Dr. S.C. refers to right lumbar radiculopathy. A March 2008 private treatment record reflects that the appellant complained of low back pain down his right leg. On examination, he was nontender to palpation. He had a range of motion present in all planes with restrictions towards extremities. No motor or sensory defects were present. He had a normal gait. In a July 2008 private treatment record , Dr. S.C. noted that the appellant stated that he no longer had radicular pain radiating to his right lower extremities, however, he continued to have right low back pain which radiated into his upper buttock. The appellant reported that he was currently on disability from the Post Office and was planning to accept an early voluntary retirement. On examination, the back had a limited range of motion consisting of 40 to 45 degrees of flexion. In a December 2008 letter, Dr. S.C. stated that in February 2008, the appellant presented with a severe exacerbation of his back pain. Due to persistent symptoms, the appellant had experienced emotional and psychological distress. Dr. S.C. stated that in his opinion the appellant was not able to perform his usual work. Therefore, he recommended that he not return to work. At the August 2011 Board hearing, the appellant reported that in 2006, he had difficulty going to work and was being put on bed rest by his doctor. (Board Hearing Transcript (Tr.) at 2) He stated that he missed between 60 and 90 days of work. (Id.) He also stated that his doctor was putting him on bed rest. (Tr. at 3) An August 2011 private treatment record reflects that the lumbar spine had flexion of 20 degrees. Deep tendon reflexes were diminished bilaterally. The assessment was chronic back pain. An August 2011 VA spine X-ray indicated there was mild worsening of the intervertebral disc space narrowing, vertebral end place sclerosis and anterior osteophytosis throughout the thoracic and lumbar spine. The appellant's spine was evaluated at a VA examination in October 2011. The examiner found that the appellant had spondylosis of the lumbar spine and spondylolisthesis at L4 and L5. The appellant did not report that flare-ups impacted the function of the thoracolumbar spine. Range of motion testing revealed forward flexion ending at 30 degrees. There was objective evidence of painful motion beginning at 10 degrees. The appellant was able to perform repetitive-use testing with 3 repetitions. Post-test forward flexion ended at 20 degrees. The appellant had additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The appellant had functional loss of the thoracolumbar spine. Specifically the spine had less movement than normal, weakened movement, excess fatigability, and pain on movement. The appellant had paraspinal pain at L3-S1. Guarding and/or muscle spasm was present but did not result in abnormal gait or spinal contour. The appellant did not have muscle atrophy. A sensory examination was normal. The appellant did not have radicular pain or any other signs or symptoms due to radiculopathy. The appellant did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems/pathologic reflexes. The appellant did not have intervetebral disc syndrome of the thoracolumbar spine. He did not use an assistive device. He did not have any scars related to any conditions. The VA examiner noted that the appellant had retired early from postal service because of activity-induced back pain. He was limited in his ability to walk, bend or climb. The VA examiner noted that the appellant did not have incapacitating episodes of intervertebral disc syndrome and he had no neurologic abnormality of the lower extremities. A March 2012 VA treatment record reflects that the appellant reported using a back brace which was fitted in April 2008. The appellant's VA treatment records from 2012 reflect that he had a diagnosis of chronic low back pain with some radiculopathy. Based on the evidence of record, the Board finds that a rating in excess of 40 percent for the appellant's low back disability is not warranted at any point during the period on appeal. Although the appellant's thoracolumbar spine forward flexion has been limited throughout the period on appeal, there is no evidence of ankylosis of the spine. The appellant has consistently been able to move his spine throughout the period on appeal. Since a rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine, and the record does not indicate there was any ankylosis of the spine, a rating of 50 percent is not warranted under the General Rating Formula of Diagnostic Code 5243. Note (1) of the General Rating Formula for Disease and Injuries of the Spine requires an evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. As noted above, the appellant had evidence of right leg radiculopathy due to his service-connected low back disability during the period on appeal. He is already separately rated for right leg radiculopathy. Since this issue is not in appellate status, the symptomatology of this issue will not be considered in rating the appellant's low back disability. The August 2006 private treatment record indicated that the appellant reported having left low back radiculopathy. However, there was no further evidence of left radiculopathy and there is no evidence that the appellant has left radiculopathy that is related to the low back disability. The August 2007 VA examiner found that the appellant had right lumbar radiculopathy. The October 2011 VA examination report reflects that a sensory examination was normal and that he did not have any radicular pain or any other signs or symptoms due to radiculopathy. Thus, the Board finds the evidence does not support a finding that the appellant has left lower extremity radiculopathy due to his service-connected back disability. Additionally, the August 2007 VA examination report indicated that the appellant reported having obstipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness and unsteadiness. In response to the question of whether the etiology of these symptoms was unrelated to the claims disability, the VA examiner said no. However, the VA examiner did not opine that the above conditions were related to the appellant's low back disability. The appellant is now service-connected for right leg radiculopathy, but there is no other evidence in the claims file of erectile dysfunction or obstipation. The October 2011 VA examiner specifically found that the appellant did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems/pathologic reflexes. Thus, the Board finds that the overall evidence of record demonstrates that the appellant does not have any other associated objective neurologic abnormalities. As noted above, for intervertebral disc syndrome, incapacitating episodes of at least 6 weeks during the past 12 months warrant a 60 percent rating. An incapacitating episode requires bed rest prescribed by a physician. 38 C.F.R. § 4.71, Diagnostic Code 5243 (Note 1). The evidence does not support a finding that the appellant has intervetebral disc syndrome. The October 2011 VA examiner specifically found that the appellant did not have intervetebral disc syndrome of the thoracolumbar spine. The August 2011 VA spine X-ray did not indicate that there was mild worsening of the intervertebral disc narrowing. However, the evidence also does not support a finding that the appellant had any incapacitating episodes due to his low back disability. The appellant reported that he was prescribed bed rest by his physician at the Board hearing. (Tr. at 3) However, this assertion is not supported by the medical evidence of record, including private treatment records. Therefore, although the appellant is competent to report that he was prescribed bedrest, as the assertion conflicts with the medical evidence of record, the Board finds the statement to be less than credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical evidence of record consistently shows that although the appellant had severe pain in his back, he was able to walk and move his back. The appellant was on disability leave before retiring, but the June 2008 Family and Medical Leave Act application reflects that the appellant was incapacitated due to a mood disorder. The December 2008 letter from Dr. S.C. noted that the appellant could not perform his usual work due to his back, but did not indicate that he was on bedrest. The appellant's private treatment records and VA treatment records reflect that he was able to work and bend his back throughout the period on appeal and do not reflect that he had any incapacitating episodes. Therefore, the appellant is not entitled to a rating of more than 40 percent for his low back disability under the Formula for Incapacitating Episodes. 38 C.F.R. § 4.71, Diagnostic Code 5243. As a general matter, in evaluating musculoskeletal disabilities, VA must determine whether the joint in question exhibits weakened movement, excess fatigability, or incoordination, and whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. See DeLuca, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45 (2012). However, where, as here, a musculoskeletal disability is currently evaluated under the highest schedular evaluation available based on limitation of motion, a DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Thus, since the appellant has been granted the maximum rating possible under Diagnostic Code 5237, the analysis required by DeLuca would not result in a higher schedular rating. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the low back disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's low back disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the low back disability is primarily manifested by limitation of motion due to pain. The applicable diagnostic codes used to rate the appellant's disability provide for ratings based on limitation of motion, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the appellant has been granted entitlement to a TDIU from September 1, 2009, the date he retired from the U.S. Postal Service. As the appellant was employed prior to that date, the Board finds that the issue of TDIU was not raised by the record prior to September 1, 2009. In conclusion, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, the Board finds that an evaluation in excess of 40 percent for the appellant's low back disability is not warranted. ORDER Entitlement to a disability rating in excess of 40 percent for service-connected low back disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs