Citation Nr: 1311744 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 07-36 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for a low back disability from March 1, 2007 to September 6, 2011, and in excess of 40 percent from September 6, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from April 1968 to April 1971, and from June 1971 to January 1993. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Although the Veteran requested a hearing before RO personnel in November 2007, he withdrew the hearing request in correspondence received in September 2008. In June 2011, the Board remanded this matter to obtain Social Security Administration (SSA) records and afford the Veteran another VA spine examination. Those actions have been completed and the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, although the Veteran contended in statements that his low back disability renders him unemployable, he had already made a claim with the RO for a total disability rating based on individual unemployability (TDIU), which was adjudicated by the RO in August 2009 and February 2010. The Veteran did not appeal. For this reason, the Board will not infer jurisdiction over the claim for TDIU. Because the issue of TDIU has been explicitly raised and adjudicated (denied) by the RO, this case is distinguishable from, and no remand action is required by, the case of Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was initially granted service connection for a low back disability in an April 2002 rating decision and was assigned a 10 percent evaluation, effective April 27, 2001. The RO increased the disability rating in a June 2003 rating decision, granting a 60 percent evaluation effective April 27, 2001. Thereafter, the RO reduced the Veteran's disability rating to 20 percent effective June 4, 2004. See January 2005 rating decision. In October 2006, the Veteran filed a claim for increased rating for his low back disability. Effective September 18, 2006 (the date of the Veteran's back surgery) the RO granted a temporary total (100 percent) disability rating in an April 2007 rating decision. In that same rating decision, and based on a March 2007 VA examination report, the RO continued the 20 percent disability evaluation, effective March 1, 2007, which was the rating in effect prior to the temporary 100 percent disability evaluation. The Board notes that the Veteran is challenging the 20 percent disability rating from March 1, 2007. See Veteran's statements dated July 2007 and November 12, 2007 statements. Pursuant to the Board's June 2011 remand, the Veteran was afforded a VA spine examination in September 2011. As a result of the findings in the September 2011 VA examination, the RO increased the disability rating to 40 percent effective September 6, 2011, the date of the VA examination. Although the RO granted a higher rating for service-connected low back disability from September 6, 2011, a veteran is presumed to seek the maximum available benefit for a disability. Accordingly, the appeal for an increased disability rating for a low back disability remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the rating period from March 1, 2007 to September 6, 2011, the Veteran's low back disability was manifested by tenderness and radiating low back pain, with limitation of flexion to about 45 degrees, limited by pain and fatigability. 2. For the rating period from March 1, 2007 to September 6, 2011, the Veteran's low back disability was not manifested by limitation of forward flexion of the thoracolumbar spine more nearly approximating 30 degrees or less due to pain; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks during any 12-month period. 3. For the rating period from September 6, 2011, the Veteran's low back disability was manifested by tenderness and radiating low back pain, with limitation of flexion to about 15 degrees, limited by pain and fatigability. 4. For the rating period from September 6, 2011, the Veteran's low back disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least six weeks during any 12-month period. CONCLUSIONS OF LAW 1. For the rating period from March 1, 2007 to September 6, 2011, the criteria for an increased disability rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2012). 2. For the rating period from September 6, 2011, the criteria for an increased disability rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (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 veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, 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). In this case, a VCAA notice letter sent in November 2006 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores. The Board finds that all necessary assistance has been provided to the Veteran. In March 2007, April 2009, and September 2011, the RO provided the Veteran with VA spine examinations to assist in determining the extent of the Veteran's low back disability. As the examination reports were written after an interview with the Veteran, a review of the claims file, a physical examination of the Veteran's spine, and contained specific findings indicating the nature of the Veteran's low back disability, the VA examinations are adequate for VA purposes, and there is no duty to provide an additional examination or medical opinion for this claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, statements from the Veteran and his representative, SSA disability records, private treatment records, and VA treatment records. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that, for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.71a. Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine; are rated under the following new general rating formula for diseases and injuries of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. A 20 percent 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. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) 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 when all disabilities are combined under 38 C.F.R. § 4.25 (2012). Under Diagnostic Code 5243, a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Low Back Rating from March 1, 2007 to September6, 2011 In an April 2007 rating decision, the RO granted a temporary total (100 percent) disability rating, effective September 18, 2006 (the date of the Veteran's back surgery). In that same rating decision, and based on a March 2007 VA examination, the RO assigned a 20 percent disability evaluation, effective March 1, 2007 (post-operative evaluation). On the November 12, 2007 VA Form 9, the Veteran asserted that he could not flex his lumbar spine to 60 degrees as reported by the March 2007 VA examiner, and that his range of motion was very limited. The Board has interpreted this as an assertion by the Veteran that his low back disability had worsened since the March 2007 VA examination and that a higher rating in excess of 20 percent from March 1, 2007 is warranted. The Board finds that, for the rating period from March 1, 2007 to September 6, 2011, the Veteran's low back disability was manifested by tenderness and radiating low back pain, with limitation of flexion to about 45 degrees, limited by pain and fatigability. For this period, the Veteran's low back disability was not manifested by limitation of forward flexion of the thoracolumbar spine more nearly approximating 30 degrees or less due to pain; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least four weeks during any 12-month period. During the March 2007 VA examination, the Veteran reported that he underwent a L4-L5 discectomy and laminotomy in September 2006. The Veteran stated that, following the surgery, he has had continued mechanical low back pain and left leg dysthesias. Following the surgery, the Veteran reported that he required an Ankle Foot Orthosis (AFO) and continued to drag his left foot. The Veteran estimated that he had six months of physician-prescribed bed rest in the last year due to his lumbar spine condition. On physical examination, the March 2007 VA examiner reported forward flexion of the lumbar spine to 60 degrees and extension was to 20 degrees. Right and left lateral flexion was to 13 degrees and right and left rotation was to 20 degrees. The VA examiner noted that the Veteran was fatigued during performance of repetitive range of motion assessments, and had to sit down between flexion and extension interveral and the right and left flexion interval. The VA examiner further noted that the Veteran complained of pain through the entire range of motion testing. In April 2009 the Veteran was afforded a second VA spine examination. During the interview process, the Veteran reported that his low back had been doing better since the surgery in 2006; however, he still complained of left sided low back pain with pain in the left buttock and posterior thigh. The Veteran rated his pain as a seven or eight out of ten. He complained of weakness to the left leg which caused him to trip and fall on occasion. The Veteran stated that he used a cane on a daily basis and a plastic AFO for the left ankle and foot. According to the Veteran, he had flare-ups several times per week that would cause him to seek self-imposed rest. The rest was not described as bed rest, but as sitting down in order to alleviate the pain in his back and legs. Upon range of motion testing, the April 2009 VA examiner reported flexion at 45 degrees with complaints of pain at 45 degrees. Extension was at zero with complaint of pain at any attempt at extension. Right and left rotation was at 20 degrees with complaints of pain at 20 degrees, and right and left lateral flexion was at 10 degrees with complaints of pain at 10 degrees. The VA examiner noted that the Veteran did not exhibit any increased pain, fatigue, weakness, lack of endurance or incoordination on repetitive motion testing. The VA examiner also noted that tenderness was present to palpation of the left sacroiliac area and L5-S1 area. Further evidence in the claims file includes Social Security Administration records obtained pursuant to the June 2011 Board remand. A review of the Veteran's Social Security records reveals that he was awarded disability benefits in August 2008 based on a primary diagnosis of major depression, and not for the service-connected low back disability. As such, the Board finds that the SSA determination and related medical evidence are of little probative value as they do not address the low back issue currently on appeal. See Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2009) (acknowledging that VA's duty to assist was limited to obtaining "relevant" SSA records that "relate to the injury" claimed and have a reasonable possibility of helping to substantiate the claim). Upon review of the evidence of record, the Board finds that a disability rating in excess of 20 percent for a low back disability is not warranted from March 1, 2007 to September 6, 2011. Initially, the Board finds that the RO properly rated the Veteran's low back disability under Diagnostic Code 5243 (intervertebral disc syndrome). As noted above, Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) 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 when all disabilities are combined under 38 C.F.R. § 4.25. In the present case, a higher 40 percent rating is not warranted as the forward flexion of the thoracolumbar spine was not less than 30 degrees prior to September 6, 2011. Instead, the March 2007 and April 2009 VA spine examinations reveal that the Veteran's forward flexion was noted, respectively, at 60 degrees and 45 degrees. Accordingly, the Board finds that a higher disability rating in excess of 20 percent from March 1, 2007 to September 6, 2011 under Diagnostic Code 5243 (General Rating Formula for Disease and Injuries of the Spine) is not warranted. The Board has also considered the Veteran's increased rating claim under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See Diagnostic Code 5243, Note (6). A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to Intervertebral Disc Syndrome that required bed rest prescribed by a physician and treatment by a physician. Upon review of the evidence of record, both lay and medical, the Board finds that the Veteran's low back disability has not resulted in incapacitating episodes having a total duration of at least four weeks in the past 12 months between March 1, 2007 and September 5, 2011. Although the Veteran estimated that he had six months of physician-prescribed bed rest in the last year due to his lumbar spine condition, this was prior to March 1, 2007, and related to his back surgery in 2006. The Board finds that the evidence does not show, and the Veteran does not contend, that a physician prescribed bed rest as a result of incapacitating episodes. In fact, during the April 2009 VA examination, the Veteran reported that, although he had occasional flare-ups several times a week, he performed self-imposed rest, and not bed rest as prescribed by a physician. The Board has also considered whether the evidence establishes any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability such that the Veteran's disability picture is more nearly approximated by a rating higher than 20 percent from March 1, 2007 to September 6, 2011. See 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 204-206. During the March 2007 VA examination, the VA examiner noted that the Veteran was fatigued during performance of three repetitive range of motion assessments. The Veteran had to sit down between flexion and extension interveral and the right and left flexion interval. The VA examiner further noted that the Veteran complained of pain through the entire range of motion testing; however, no loss of coordination was noted. Taking into account such factors, the March 2007 VA examiner noted that forward flexion was to 60 degrees and extension was to 20 degrees. Right and left lateral flexion was to 13 degrees and right and left rotation was to 20 degrees. At the April 2009 VA examination, the Veteran stated that he used a cane on a daily basis and a plastic AFO for the left ankle and left foot. The VA examiner noted that the Veteran did not exhibit any increased pain, fatigue, weakness, lack of endurance or incoordination on repetitive motion testing. Upon range of motion testing, the April 2009 VA examiner reported flexion was at 45 degrees with complaints of pain at 45 degrees. Extension was at zero with complaint of pain at any attempt at extension. Right and left rotation was at 20 degrees with complaints of pain at 20 degrees and right and left lateral flexion was at 10 degrees with complaints of pain at 10 degrees. The Board finds that pain on range of motion has already been considered in the assignment of a 20 percent disability rating. Importantly, the Veteran's limp, use of a cane, and use of a brace for his left foot drop has already been considered in the 60 percent disability evaluation for left leg radiculopathy as secondary to service-connected low back disability. See January 2005 rating decision. Even considering additional limitations of motion and function due to various limiting orthopedic factors, see DeLuca at 204-206, 208; 38 C.F.R. §§ 4.40, 4.45, 4.59, the Board finds that the motion of the low back is shown to be, at worst, 45 degrees, which does not meet or more nearly approximate the criteria for a rating in excess of 20 percent. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's appeal for increased disability rating for a low back disability in excess of 20 percent from March 1, 2007 to September 6, 2011. Low Back Rating from September 6, 2011 After a review of all the evidence, the Board finds that for the rating period from September 6, 2011 the Veteran's low back disability was manifested by tenderness and radiating low back pain, with limitation of flexion to about 15 degrees, limited by pain and fatigability. For the rating period from September 6, 2011, the Veteran's low back disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least six weeks during any 12-month period, as required for a higher disability rating of 50 percent. The evidence does not show that the entire thoracolumbar spine is "fixed in flexion or extension" for any period. See 38 C.F.R. § 4.71a, Note (5), to the General Rating Formula for Diseases and Injuries of the Spine. Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis is also defined as a stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Pursuant to the Board's June 2011 remand, the Veteran was afforded a VA spine examination on September 6, 2011. The VA examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination of the Veteran's spine. During the evaluation, the Veteran reported that the 2006 back surgery was a failure as he had not experienced relief from the radicular symptoms of the left leg and had no return of motor function from the drop foot. The Veteran reported only being able to walk half a block due to increasing leg weakness when walking. The Veteran reported being on self-imposed bed rest about two days a week because of the left-side back, buttocks, and left leg pain. The VA examiner noted that the Veteran did not have physician-prescribed bed rest. Upon physical examination, the September 2011 VA examiner noted that palpation of the left paraspinous area, sacral iliac area, and sciatic notch area produced some discomfort. Active and passive ranges of motion were severely limited due to back and leg pain. Flexion was at 15 degrees and extension was at five degrees. Right lateral bend was to 10 degrees, left wads to five degrees. Right and left rotation was to 10 degrees. Upon repetitive motion, there were no signs of increased loss of motion, increase pain, weakness, or incoordination of the lumbar spine. Based on the results of the September 2011 VA examination, the RO assigned a 40 percent disability rating for the Veteran's low back disability effective September 6, 2011. The Board finds that, for the rating period from September 6, 2011, the Veteran's low back disability was not manifested by unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least six weeks during any 12-month period. Accordingly, the Board finds that a higher disability rating in excess of 40 percent is not warranted from September 6, 2011. In order to achieve the next highest 50 percent rating under Diagnostic Code 5243, the evidence would have to show unfavorable ankylosis of the entire thoracolumbar spine. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Here, the evidence of record does not demonstrate ankylosis of the entire thoracolumbar spine. Additionally, the September 2011 VA examiner reported that, upon repetitive motion, there was no weakness, fatigability or incoordination of the lumbar spine. See DeLuca at 204-206, 208; 38 C.F.R. §§ 4.40, 4.45, 4.59. Further, as reported by the Veteran, he is on self-imposed bed rest for about two days a week because of the left side back, buttocks, and leg pain. Notably, the Veteran does not have physician prescribed bed rest as contemplated by Note (1) under 38 C.F.R. § 4.71a . Diagnostic Code 5243. For these reasons, the Board finds that a preponderance of the evidence is against a higher rating in excess of 40 percent for a low back disability for the period from September 6, 2011. Consideration of Separate Ratings for Neurological Manifestation The General Rating Formula of Diseases and Injuries of the Spine allows for separate evaluations for chronic orthopedic and neurologic manifestations. 38 C.F.R. § 4.71a, Diagnostic Code 5237. In the present case, the Veteran has already been assigned a 60 percent separate disability rating for service-connected left leg radiculopathy with atrophy and left foot drop effective June 4, 2004. See January 2005 rating decision. The Veteran's February 2005 statement did not include disagreement as to the left leg radiculopathy evaluation; therefore, as the Veteran has not appealed the 60 percent disability rating for the left leg radiculopathy, the Board finds that it does not have jurisdiction over that issue. Extraschedular Consideration The Board has considered whether an extraschedular evaluation is warranted for the Veteran's low back disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's low back disability is specifically contemplated by the schedular rating criteria (Diagnostic Code 5243, 38 C.F.R. § 4.71a), and no referral for extraschedular consideration is required. The schedular rating criteria at Diagnostic Code 5243 specifically provide for disability ratings based on a combination of history, symptoms, and clinical findings. The schedular rating criteria specifically provide for ratings based on limitation of motion, including due to pain and other orthopedic factors, such as fatigability. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's low back disability has been manifested by pain, resulting in limitation of motion of the back to, at its worst, 15 degrees of forward flexion. The schedular rating criteria specifically allows for different ratings based on the severity of the limitations of motion of the back. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's low back disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased disability rating for low back disability, in excess of 20 percent from March 1, 2007 to September 6, 2011, and in excess of 40 percent from September 6, 2011, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs