Citation Nr: 1311976 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-12 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating higher than 10 percent for a low back disability (specifically, for spondylosis of the lumbar spine, status post laminectomy) prior to August 22, 2007; also a rating higher than 10 percent from November 1, 2007 to May 16, 2008; a rating higher than 20 percent from May 17, 2008 to December 30, 2008; and a rating higher than 20 percent since March 1, 2009. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran had active military service in the Navy from August 1973 to August 1977 and in the Army from April 1989 to January 1991 and from August 1991 to February 1992. This appeal to the Board of Veterans' Appeals (Board) is from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim for a rating higher than 10 percent for his low back disability. In another decision since issued in March 2008, however, the RO assigned a temporary 100 percent rating for this disability retroactively effective as of August 22, 2007, based on surgical or other treatment of this disability necessitating convalescence. See 38 C.F.R. § 4.30. The prior 10 percent rating resumed as of November 1, 2007. In yet another decision in June 2009, the RO assigned another temporary total rating effective December 31, 2008, again based on surgical or other treatment of this disability necessitating convalescence. Id. And, again, the prior 10 percent rating resumed as of March 1, 2009. In a November 2009 decision, the RO confirmed and continued this 10 percent rating for the low back disability. But in a January 2010 decision, the RO increased the rating for this disability to 20 percent retroactively effective from May 17, 2008 to December 30, 2008. The 10 percent rating resumed as of March 1, 2009. As support for his claim for higher ratings for the times when he did not have the temporary 100 percent convalescent ratings, the Veteran testified at a videoconference hearing in April 2012 before the undersigned Veterans Law Judge (VLJ) of the Board. Relevant to that proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the presiding VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not then currently associated with the claims folder that might have been overlooked or was outstanding that might help to substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing. To the contrary, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record, especially seeing as though the Board already remanded this claim in June 2012 to the RO (via the Appeals Management Center (AMC)) for further evidentiary development, including having the Veteran undergo another VA compensation examination reassessing the severity of his low back disability. Upon completion of that requested development, the AMC issued a Supplemental Statement of the Case (SSOC) granting a higher 20 percent rating retroactively effective as of March 1, 2009, albeit confirming and continuing the denial of an increased rating with regards to the previous time periods under consideration. The file since has been returned to the Board for further appellate disposition of the claim. FINDINGS OF FACT 1. For the time period prior to August 22, 2007, the Veteran's low back disability was manifested by, at worst, forward flexion to 90 degrees, albeit with pain on use beginning at 70 degrees. He did not manifest combined range of motion of the thoracolumbar spine of or less than 120 degrees, or muscle spasm or guarding with severe attendant consequences. 2. From November 1, 2007 to May 16, 2008, there was no available additional pertinent medical evidence of record, and thereby no basis for any increase in evaluation. 3. From May 17, 2008 to December 30, 2008, the Veteran had forward flexion of the thoracolumbar spine to 40 degrees, additionally limited to 20 degrees by pain on use. 4. Since March 1, 2009, he has not demonstrated forward flexion to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 10 percent for the spondylosis of the lumbar spine, status post laminectomy, prior to August 22, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code (DC) 5237 (2012). 2. The criteria are not met for a rating higher than 10 percent for the spondylosis of the lumbar spine, status post laminectomy, from November 1, 2007 to May 16, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, DC 5237. 3. But resolving all reasonable doubt in the Veteran's favor, the criteria are met for a 40 percent rating for the spondylosis of the lumbar spine, status post laminectomy, from May 17, 2008 to December 30, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, DC 5237. 4. The criteria are not met, however, for a rating higher than 20 percent for the spondylosis of the lumbar spine, status post laminectomy, since March 1, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). Through July 2004 correspondence, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The relevant notice information must have been timely sent. The U. S. Court of Appeals for Veterans Claims (Court) has prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this instance, the VCAA notice correspondence preceded the December 2004 rating decision on appeal, and thus met the standard for timely notice. The RO furthermore has taken appropriate action to comply with the duty to assist the Veteran through obtaining records of VA and private outpatient treatment and arranging for him to undergo VA Compensation and Pension examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). In furtherance of his claim, the Veteran has provided several personal statements. A Board videoconference hearing was held in this matter. There is no indication otherwise of any further relevant evidence or information which has not yet been obtained. The record as it stands includes sufficient competent evidence to decide the claim. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide to the appellant regarding what further evidence he should submit to substantiate his claim. Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on its merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed, actually from one year prior, until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain and painful motion must be objectively confirmed, however, such as by visible expression, and if a Veteran already has the maximum rating assignable based on limitation of motion, it is not necessary to consider these provisions. Johnston v. Brown, 10 Vet. App. 80 (1997). Moreover, the Court has clarified that, although pain may be a cause or manifestation of functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. The Veteran's service-connected low back disability (spondylosis of the lumbar spine, status post laminectomy) has been evaluated at the 10 percent level prior to August 22, 2007; again at 10 percent from November 1, 2007 to May 16, 2008; then at 20 percent from May 17, 2008 to December 30, 2008; and again at 20 percent since March 1, 2009. The above-referenced gaps in time not covered by an assigned schedular rating correspond to when he had been granted a temporary total rating (i.e., a temporary 100 percent rating) for convalescence following low back surgery under 38 C.F.R. § 4.30. He filed the current claim for increased rating in May 2004. Under applicable rating criteria, this disability is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range 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 of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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. The next higher available 40 percent rating is made for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) 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. 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 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 (0 degrees) always represents favorable ankylosis. The primary source of evaluative information regarding the nature and extent of service-connected low back disability originates from the VA examination history. The Veteran first underwent VA examination in connection with this claim in August 2004, during which he reported low back pain with flare-ups three to four times a week with radiating symptoms. He reported flare-ups of pain with lifting and carrying objects, and traversing stairs. There was no significant low back pain at that time associated with his occupation as a security guard. He denied fatigue, weakness, impaired endurance or lack of coordination. He reported no hospitalization over the previous 12 months, and no prescribed bedrest. He denied bowel or bladder impairment. On physical examination, on palpation of the lumbar spine there was no spasm, pain, tenderness, or muscular tension. The Veteran reported sensation of discomfort of the lumbar spine, left greater than right. There was no radiation at that time. Active range of motion consisted of forward flexion to 85 degrees; extension to 35 degrees, with pain reported at the end of the full arc of motion on extension; side bending to 30 degrees bilaterally; and rotation 30 degrees bilaterally. There was no fatigue, weakness, impaired endurance, or lack of coordination noted. Leg length was symmetric. X-ray studies of the lumbar spine indicated five nonrib-bearing lumbosacral vertebral segments, with oblique view indicating spur formation at multiple levels, L3, 4, and 5, and lateral view indicating end-plate sclerosis. There was a mild decrease in height at L5-S1 posteriorly. The diagnosis was spondylosis, lumbar spine, without lower extremity radiculopathy. Records of private clinical treatment show in March 2005 on evaluation for low back pain, the Veteran described continuous flare-ups of the condition, and stated he would like to try medication first for treatment purposes and did not want to consider back injections at that point. Physical examination of the lumbosacral spine revealed pain, but normal range of motion with rotation, forward flexion, extension and lateral bending, though the Veteran did complain of pain on motion. Provocative maneuvers were positive for lumbar facet dysfunction at L4-5 on the left, and maneuvers for sacroiliac joint dysfunction were positive. When seen the following month, objective evaluation of the lumbosacral spine revealed no abnormalities. The primary diagnosis was low back pain. On further VA Compensation and Pension examination of February 2007, the Veteran described worsening pain in his lower back central and paraspinal regions, heightened with prolonged activity. There were no bowel or bladder complaints. The Veteran stated he generally used a cane during periods of flare-ups due to longer work shifts. Objectively, posture and gait were without disturbance and the Veteran arrived without any ambulatory aids or braces. There was no deformity of the spine. There was no spasm or tenderness to palpation of the lumbar spine. Active range of motion was forward flexion to 90 degrees, extension to 20 degrees. The Veteran did not report significant pain at the end ranges of motion. Right and left lateral flexion was 20 degrees bilaterally with mild increase of pain on the right, and right and left lateral rotation was 30 degrees bilaterally with mild pain at extremes on the right. After 10 to 15 repetitions of flexion and extension the Veteran did report increase in pain in his lower back central and paraspinal regions. The diagnosis was lumbar spine stenosis with neurogenic claudication segments L3 through L5. On VA examination in June 2007, objective evaluation of the thoracolumbar spine revealed no evidence of radiating pain at that time. Muscle spasm was absent. Tenderness was absent. There was negative straight leg raising test. There was no ankylosis of the lumbar spine. Range of motion was flexion to 90 degrees, with pain occurring at 70 degrees; extension to 20 degrees; right and left lateral flexion to 30 degrees; and right and left rotation 30 degrees. There was additional limitation following repetitive use due to pain, but with no further lost degrees in terms of diminished range of motion. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curvature of the spine. The diagnosis given was spondylosis of the lumbar spine, with intervertebral disc syndrome (affecting L3 through S1, sciatic nerve). On VA examination of May 2008, the Veteran reported having sharp back pain, constant, worse on the right than left side. He had used medications, seen a chiropractor, and had injections in his thoracolumbar spine. He had undergone lumbar stenosis in August 2007. He denied bowel or bladder symptoms. Visual examination of the thoracolumbar spine showed no gross abnormality. There was a well-healed surgical scar over the midline. There was normal thoracic kyphosis, and lumbar lordosis. There was no evidence of scoliosis or other pathologic curvature of the spine. Posture was normal. Gait was normal and reciprocal but step length was shortened bilaterally. Range of motion was forward flexion to 40 degrees, painful past 20 degrees; extension to 15 degrees, painful past 10 degrees; right and left lateral flexion to 15 degrees, painful past 5 degrees; right lateral rotation 15 degrees and left lateral rotation 20 degrees, both painful past 10 degrees. After repetitive motion testing, there was no change in range of motion. The VA examiner found no objective clinical evidence that function was additionally limited by pain, fatigue, weakness, incoordination or lack of endurance with repetitive motion testing of the thoracolumbar spine. There was no evidence of muscle spasm by visual or physical examination in the thoracolumbar spine after range of motion and repetitive motion testing. There was moderate tenderness to palpation over the thoracolumbar spine over both the spine and paraspinal muscles. The diagnosis was, in relevant part, lumbar degenerative disc disease status post laminectomy with continued pain and radicular symptoms. Upon VA examination of August 2009, evaluation of the thoracolumbar spine revealed no evidence of radiating pain on movement. Muscle spasm was absent. There was tenderness on exam described as the area of the spinous process. Spinal contour was preserved, though there was tenderness. There was no guarding of movement. The examination did not reveal any weakness. Musculature was normal. There was no ankylosis. Range of motion was flexion to 80 degrees, extension to 20 degrees, right lateral flexion to 22 degrees, left lateral flexion to 20 degrees, and right and left rotation 20 degrees bilaterally. There was no additional degree of limitation of motion following repetitive testing. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. For the established VA diagnosis of spondylosis of the lumbar spine status post laminectomy, the diagnosis was changed to that same condition, but along with intervertebral disc syndrome (IVDS) affecting the sciatic nerve. On re-examination of September 2009, the Veteran reported a history of back pain, fatigue, stiffness, and spasms. There were no reported flare-ups or incapacitating episodes of spine disease. There was no gibbus, kyphosis, lumbar lordosis, scoliosis, or thoracolumbar spine ankylosis. On range of motion testing, flexion was to 90 degrees, extension was to 20 degrees, right and left lateral flexion were to 30 degrees, and right and left lateral rotation were 30 degrees, all with no objective evidence of pain on active range of motion, including after repetitive motion. Straight leg raising was possible to 70 or 80 degrees bilaterally, with some hamstring tightness on the right. The diagnosis given upon examination and review of medical history was lower back pain with residual neuropathy right lower extremity. On examination of July 2012, the diagnosis was initially confirmed as degenerative disc disease with spinal stenosis. The Veteran had undergone repeated surgeries. He did not describe having flare-ups. Range of motion was measured at flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion to 25 degrees, right and left lateral rotation 20 degrees. There was no limitation due to painful motion, include with repetitive testing. There was present less movement than normal, pain on movement, disturbance of locomotion, and interference with normal activities. There was not localized tenderness or pain to palpation for the joints or soft tissue of the thoracolumbar spine. There was not guarding or muscle spasm of the thoracolumbar spine. Straight leg raising test was normal. The Veteran did not have IVDS of the thoracolumbar spine. He did not use any form of assistive device. There was no sign of vertebral fracture. There was no ankylosis. Review of medical records showed a continuation of previous degenerative disc disease and spinal stenosis, with new disc herniation at L4-L5. Having thoroughly reviewed the evidence before it, the Board will consider the claim for increased evaluation for a low back disability with regard to all of the stages of consideration before it that are intended to represent different levels of severity of symptomatology over time. Prior to August 22, 2007 Considering the record, the Board does not ascertain a basis upon which to increase beyond 10 percent the existing evaluation for a low back disability, prior to August 22, 2007. Under the applicable rating standard, the assignment of the next higher 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a 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. See 38 C.F.R. § 4.71a (General Rating Formula for Injuries and Diseases of the Spine). Based on the available evidence preceding August 22, 2007, none of these components of the rating criteria for a 20 percent evaluation were effectively met. To begin with, the Veteran did not at any point manifest forward flexion of the thoracolumbar spine at the designated level of 60 degrees of less. On the preliminary VA examination of August 2004, forward flexion was objectively measured at 85 degrees. Moreover, there was no further indication of additional limitation of motion in terms of degrees attributable to pain, weakness, lack of endurance, incoordination or other recognized form of functional loss, as factors which are to be taken into account when rating orthopedic disability premised on limited motion. See DeLuca, supra; 38 C.F.R. §§ 4.45, 4.59. The measured level of joint mobility was near normal capacity, and did not approach the rating standard for increased evaluation. Thereafter, the February 2007 VA examination established forward flexion at precisely 90 degrees, as indicated, the full range of motion, with no further diminution due to functional loss. The subsequent VA examination of June 2007 evinced range of motion of flexion to 90 degrees, though with onset of pain at 70 degrees; even when factoring in functional loss due to pain on use, however, the retained joint mobility still exceeded the minimum requirement of 60 degrees or less in order to correspond to the next higher disability evaluation. As to the remaining components regarding that which warrants assignment of a 20 percent evaluation, the Veteran has not demonstrated a combined range of motion of the thoracolumbar spine (in all relevant planes of motion) of 120 degrees or less. Rather, combined range of motion consistently exceeded this requirement. Moreover, there is no indication of muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, with attendant change in curvature of the spine. The symptom itself of back spasm either was not expressly noted, or was otherwise specifically denied upon each VA examination. The Board also observes at this time that aside from the aforementioned subject of disability evaluation according to orthopedic impairment, the Veteran clearly manifests neurological impairment involving bilateral radiculopathy of the lower extremities. To this extent, however, the RO has already recognized this neurological component of service-connected disability through awarding separate evaluations for both right and left lower extremity radiculopathy. The assigned evaluations for bilateral radiculopathy is not a matter currently on appeal before the Board, and the present inquiry is confined to that of the orthopedic impairment attributable to the service-connected low back disability. On these grounds, there is no objective basis upon which to substantiate an award in excess of the presently assigned 10 percent rating, under provisions of the VA rating schedule. Hence, a schedular rating higher than 10 percent prior to August 22, 2007 is being denied. November 1, 2007 to May 16, 2008 The record does not objectively substantiate an increased rating beyond 10 percent for the time period from November 1, 2007 through May 16, 2008 (following the expiration of a temporary total rating for the Veteran's first lower back surgery on October 31, 2007). As previously cited, the identical rating standard applies regarding whether a higher 20 percent evaluation is supported. See 38 C.F.R. § 4.71a. Unfortunately, however, there is no available medical evidence during the approximate six-month time period in question, and by implication, no means to substantiate awarding in excess of the existing 10 percent evaluation. The Board's review is essentially constrained by the limited record before it. Therefore, there is no basis for a rating higher than 10 percent for a low back disability from November 1, 2007 to May 16, 2008. May 17, 2008 to December 30, 2008 During the next "stage" of evaluation for service-connected low back disability, from May 17, 2008 to December 30, 2008, the RO has already assigned an increased evaluation of 20 percent. This additional benefit is duly supported by the record. The question remains as to whether the evidence in its entirety substantiates any further increase in rating. Pursuant to the VA rating schedule, the next higher available rating for the service-connected low back disability comprises a 40 percent evaluation, which is assigned for forward flexion of the thoracolumbar spine 30 degrees or less. See 38 C.F.R. § 4.71a. The May 2008 VA examination, the only source of relevant evidence during this time period, designates a level of forward flexion of 40 degrees, then constrained by painful motion to 20 degrees. It is wholly recognized that literally applying the rating criteria, the standard was met for assignment of the next higher 40 percent evaluation, by virtue of the fact that forward flexion fell below 30 degrees when factoring in pain on use. See DeLuca, supra. The Board also observes that a subsequent VA examination in 2009, only a year later, measured retained thoracolumbar spine flexion at near normal levels, thus suggesting that the May 2008 examination results could have been an anomaly. Nonetheless, the May 2008 examination findings immediately preceded a second lower back surgery, and it is possible that the Veteran's symptoms had in fact substantially worsened in the months leading up to his surgery. At the very least, reasonable doubt should be resolved in the Veteran's favor as the pattern of symptomatology in conjunction with obtaining surgical treatment for back pain. See 38 C.F.R. § 4.3. On these grounds, a 40 percent evaluation strictly for the time period from May 17, 2008 to December 30, 2008 is deemed warranted. Since March 1, 2009 As to the remaining time period from March 1, 2009 to the present, the Board finds that the assigned 20 percent evaluation continues to best approximate the severity of impairment associated with the Veteran's service-connected low back disability. The rating standard for assignment of the next higher 40 percent evaluation is forward flexion limited to 30 degrees or less. See 38 C.F.R. § 4.71a. The Veteran's August 2009 VA examination report reflects that following undergoing another lower back surgery, range of motion consisted of forward flexion to 80 degrees, which once again was just 10 degrees less than what is recognized as normal forward flexion. There was no further limitation of motion attributable to functional loss. Moreover, the VA examination of just one month later confirms flexion now to 90 degrees, again with no identifiable functional loss. Thereafter, the July 2012 VA examination confirms some decrease in forward flexion, to 50 degrees, without additional functional limitation, which is consistent with the existing 20 percent evaluation under the rating schedule, but not any higher evaluation. It follows that the orthopedic impairment associated with service-connected disability does not provide the basis for awarding any increase in rating. The Board is also aware that at least one VA examiner during the timeframe under consideration identified a diagnosis, in part, of intervertebral disc syndrome. This notwithstanding, neither this examiner nor any other treatment provider has set forth any additional related finding of incapacitating episodes of IVDS (i.e., an episode of physician prescribed bedrest), such that there is any basis upon which to assign a compensable evaluation for IVDS under the VA rating schedule. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Consequently, a 20 percent schedular evaluation should remain in effect for the time period since March 1, 2009. Conclusion Meanwhile, aside from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations also has been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extra-schedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there initially is no basis to find that the Veteran's low back disability presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. Essentially, the rating criteria premised upon limitation of motion with associated pain and/or discomfort fairly accounts for nearly all of the Veteran's symptoms as presented, including from his descriptions upon VA examination and on other occasions. To the extent the Veteran has any distinctly ratable neurological impairment, this has been recognized through separate compensable evaluations for his right and left side lower extremity radiculopathy. Thus, the Board cannot conclude that the Veteran's condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. Regardless, the Board will give these stages due consideration. However, the Veteran has not shown that his service-connected disability under evaluation has caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular rating. By all indication, he fortunately remains employed on a full-time basis. Moreover, the Veteran's service-connected disorder also has not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is granting in part the claim for higher rating for a low back disability from May 17, 2008 to December 30, 2008, and denying a higher rating regarding the remaining timeframes. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. To the extent any greater level of disability compensation is sought, the preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A rating higher than 10 percent for spondylosis of the lumbar spine, status post laminectomy, prior to August 22, 2007, is denied. A rating higher than 10 percent for spondylosis of the lumbar spine, status post laminectomy, from November 1, 2007 to May 16, 2008, also is denied. However, a 40 percent rating for spondylosis of the lumbar spine, status post laminectomy, from May 17, 2008 to December 30, 2008, is granted, subject to the statutes and regulations governing the payment of VA compensation benefits. A rating higher than 20 percent for spondylosis of the lumbar spine, status post laminectomy, since March 1, 2009, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs