Citation Nr: 1312835 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 95-20 806A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a rating in excess of 40 percent for degenerative osteoarthritis with spondylosis, lumbar paravertebral myositis, and discogenic disease. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from January to July 1956 and from May to June 1970, plus additional periods of active duty for training (ACDUTRA) in the Army National Guard from June 1970 to October 1982. This matter is on appeal from the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). This case has a long procedural history. In May 2001, the Board denied the Veteran's claim. He appealed to the Veterans Claims Court. In January 2003, the Court vacated and remanded the Board's decision. In August 2003 and August 2005, the Board remanded this claim for additional development. In March 2008, the Board again denied the claim for a higher rating. The Veteran again appealed to the Court. In June 2009, the Court Clerk vacated and remanded the Board's decision for additional development in compliance with a June 2009 Joint Motion for Remand (JMR). The Board again remanded the claim to the RO in February 2010 and March 2012 to complete that development. The case returns now for appellate consideration. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to March 24, 2011, a low back disability was not productive of pronounced intervertebral disc syndrome (IVDS) with sciatic neuropathy with persistent symptoms and little intermittent relief, ankylosis, vertebral fracture, incapacitating episodes of at least six weeks duration or objective neurological complications not already separated evaluated. 2. Since March 24, 2011, a low back disability has not been productive of ankylosis, vertebral fracture, or objective neurological complications not already separated evaluated at any time. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for degenerative osteoarthritis with spondylosis, lumbar paravertebral myositis, and discogenic disease have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5293 (1993), DC 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to a rating in excess of 40 percent for his low back disability. For the reasons that follow, the Board concludes that an increased rating is not warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. While the claim was on appeal, the applicable rating criteria for spinal disabilities, including IVDS, 38 C.F.R. § 4.71a, DC 5293, were revised effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345 (Aug. 22, 2002); see also 68 Fed. Reg. 51,454 (Aug. 27, 2003). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-2003. Under the ratings criteria in effect prior to September 23, 2002, a rating in excess of 40 percent for a lumbar spine disability required either pronounced attacks of IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief (DC 5293) (60 percent), ankylosis of the lumbar spine (DC 5289) (50 percent), complete ankylosis of the entire spine (DC 5286) (60 and 100 percent ratings), or fractured vertebra (DC 5285) (60 or 100 percent ratings). 38 C.F.R. §4.71a, DCs 5285, 5286, 5289, 5293 (2002). Effective September 23, 2002, the diagnostic criteria for IVDS under DC 5293 were revised. As revised, prior to September 26, 2003, DC 5293 stated that IVDS was to be evaluated either based on incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 the separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A maximum 60 percent rating was available for incapacitating episodes with a total duration of at least six weeks in the preceding twelve month period. Effective from September 26, 2003, the diagnostic criteria for IVDS were renumbered as DC 5243. The regulations remained the same in effect; however, there was some minor re-phrasing. In this respect, DC 5243 provided the following: Evaluate IVDS (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), whichever method results in the higher evaluation when all disabilities are combined. It also deleted the old Note 2. Also effective September 26, 2003, the General Rating Formula replaced the general ratings criteria for spinal disabilities other than IVDS. See 38 C.F.R. § 4.71a, DC 5237-5242. The ratings for limitation of motion, ankylosis, and vertebral fracture were incorporated into the new Formula. Even under this new Formula, a rating in excess of 40 percent for the lumbar spine was warranted only for ankylosis of the thoracolumbar spine or entire spine. A Note indicates that objective neurological complications were to be rated under appropriate neurological diagnostic criteria. This appeal arises from an increased rating claim filed by the Veteran in 1992. His lumbar spine disability is rated as 40 percent disabling under DCs 5010, DC 5292, and DC 5293. Under DC 5010, which rates post traumatic arthritis, ratings are to be assigned under DC 5003, which rates degenerative arthritis. 38 C.F.R. § 4.71a. The criteria state that a veteran should be first evaluated under the limitation of motion diagnostic criteria. If the veteran is rated compensably under the limitation of motion diagnostic criteria, further inquiry into DC 5003 is moot. Here, the Veteran receives a maximum compensable rating for limitation of motion under DC 5292. The Board concludes that further evaluation under DC 5010 and DC 5292 is not warranted. Next, the Board finds that the Veteran's low back disability has not resulted in ankylosis of any spine segment at any time during the period on appeal. Although he has had numerous complaints of limited motion, his private and VA treatment records, VA examination reports from November 1997, June and August 1999, February 2000 do not indicate that he had ankylosis. At the most recent VA examinations in August 2006 and March 2011, the examiners specifically noted that there were no fixed abnormalities. The Veteran's VA treatment records through July 2012 do not reveal ankylosis. He has not provided a statement and has not testified that he had ankylosis or that a doctor has told him that he has ankylosis. As ankylosis is not shown, a higher rating is not warranted for favorable ankylosis under the pre-amended regulations or favorable ankylosis of the entire thoracolumbar spine under the amended regulations. See 38 C.F.R. § 4.71a, DC 5286-89 (2002). Next, the Board finds that the Veteran's low back disability has not resulted in a fractured vertebra at any time during the period on appeal. A June 1996 MRI revealed an old compression fracture of the T-3 (thoracic) vertebra. Service connection has been denied for this vertebra fracture, including as secondary to his lumbar spine disability. That issue is not on appeal here. There is no evidence, lay or medical, to show that he has a lumber spine vertebra fracture. Thus, a higher rating under DC 5285 is not warranted. In light of these findings, a rating in excess of 40 percent may only be awarded for pronounced attacks of IVDS with persistent symptoms compatible with sciatic neuropathy (pre September 23, 2002, DC 5293), incapacitating episodes (effective September 23, 2002), or neurological complications associated with a lumbar spine disability (effective September 26, 2003). While this claim was on remand, the Veteran was granted secondary service connection for lumbar radiculopathies of each leg, initially rated at 20 percent each effective March 24, 2011, as neurological complications associated with his lumbar spine disability. This grant created two disability rating stages that the Board will consider separately. Prior to March 24, 2011 Under the previous ratings criteria, a 60 percent rating for IVDS requires pronounced attacks with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). A VA General Counsel opinion has also held that DC 5293, IVDS, involved loss of range of motion and that consideration of 38 C.F.R. §§ 4.40 and 4.45 was applicable. See VAOPGCPREC 37-97. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnston v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2012) (stating that functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). In 1992, the Veteran requested re-evaluation of his service-connected back disorder. VA medical records from October 1990 to October 1992 reference his complaint of back pain. A September 1992 VA MRI of the lumbar spine revealed degenerated L3-4 disc with central posterior herniation with associated marginal osteophytes, degenerated changes with lateral recess stenosis, and degenerated lumbar discs. Private medical records dated from January to November 1993 show complaints of low back pain with findings of herniated nucleus pulposus at L3-4 and L5-S1, spondylosis, lumbar stenosis, and discogenic disease. A July 1993 MRI of the lumbar spine revealed degenerative disc disease at L5-S1, disc herniation at L5-S1, and disc protrusion at L2-3. In a September 1993 letter, the physician stated that the Veteran had an advanced degenerative lumbar condition with herniated discs along with narrowing of the lateral recesses and that the Veteran should be a candidate for lumbar surgery. An April 1995 VA lumbar spine MRI revealed lumbar disc space desiccation changes, bilateral L4-5 moderate facet joint hypertrophic changes, and small posterior osteophytic ridges at L5-S1. There was no evidence of herniation or stenosis and the conus and cauda equina were unremarkable. At his July 1995 hearing, the Veteran testified that his back disorder had become worse and that his private physician recommended surgery. VA medical records from January 1995 to October 1996 show continued complaints of low back pain with decreased sensation and occasional numbness in lower extremities. It was noted that he had a history of chronic low back pain and had been diagnosed with diabetes mellitus. An October 1996 neurological consultation revealed decreased pinprick and touch sensations in the lower extremities. VA medical records from March to October 1997 note the Veteran's complaints of low back pain with history and findings of chronic low back pain. At a November 1997 VA examination, he complained of severe low back pain with radiation into hips and legs. On evaluation, forward flexion was limited to 30 degrees, backward extension limited to 10 degrees, and right and lateral rotation and flexion were limited to 15 degrees. The examiner noted that it appeared that he was not doing his full effort to range of motion because when a card fell off the table the Veteran bent well to the forward and side to pick it up without pain. There was objective evidence of painful motion on movements of the lumbar spine except mild on forward flexion. Mild lumbosacral paravertebral muscle spasm was noted. There was evidence of weakness and decreased muscle strength of 3 of 5 in both hallucis longus muscles. There were no postural abnormalities of the back, but there was a fixed deformity of dorsal kyphosis. On neurological evaluation, he had diminished knee jerks and absent ankle jerks with decreased sensation to pinprick and smoothness in both upper and lower extremities. The diagnosis was degenerative osteoarthritis with moderate to severe spondylosis, lumbar paravertebral myositis, and discogenic disease. The examiner noted that the diminished knee jerks, absent ankle jerks bilaterally, decreased pinprick and smooth sensations, and diminished vibration sense were due to diabetic neuropathy as a result of the Veteran's diabetes mellitus and were not related to his service-connected back disorder. The examiner further stated that the Veteran had normal gait cycle, no muscle atrophy, and normal muscle strength except for both ankle dorsiflexors which could be due to diabetic neuropathy or radiculopathy secondary to discogenic disease. At a June 1999 VA examination, the Veteran complained of moderate to severe low back pain with radiation into thighs and cramping and numbness in the legs. He reported that he could walk unassisted but used a cane to help him get in and out of the car. He stated that he was not taking any medication for back pain. Range of motion of the lumbar spine revealed forward flexion to 40 degrees, backward extension to 20 degrees, lateral flexion and rotation to 10 degrees. The examiner noted that the Veteran displayed more range of motion with pain free expression while dressing and undressing than those measured. No painful motion was noted on examination. There were no paravertebral lumbar muscle spasms and no tenderness to palpation. There was objective evidence of weakness in both the right and left ankle dorsiflexors, extensor hallucis longus. There was 2 cm. muscle atrophy of the left thigh and right calf. Knee jerks and ankle jerks were absent; there were diminished pinprick and smooth sensation as well as diminished vibration in arms and legs. The diagnoses included degenerate joint disease, lumbar paravertebral myositis, discogenic disease, peripheral diabetic neuropathy, and bilateral L5 radiculopathy. An August 1999 VA examination revealed low back pain and paravertebral spasms. The diagnosis was chronic low back pain and discogenic disease of the lumbar spine. At the December 1999 hearing, the Veteran's physician stated that the Veteran's leg weakness was due to his discogenic disease. At a February 2000 VA examination, the examiner noted that all records including private medical opinions and statements were read. The Veteran complained of continuous low back pain with radiation into the lower extremities along with numbness and weakness in the lower extremities. He reported that he was unable to walk without pain. Range of motion testing revealed forward flexion limited to 40 degrees, extension to 10 degrees, lateral bending to 10 degrees, and rotation to 20 degrees. Painful motion was noted at flexion, extension, and right rotation. Mild muscle spasm of the lumbar paravertebral muscles was noted, and there was tenderness to palpation over the vertebral spinal processes. Diminished pinprick and light touch sensation was noted in arms and legs as was diminished vibration sensation. Muscle tone was 4/5 throughout although the examiner noted there was poor patient effort. The examiner noted that MRI revealed degenerative joint disease, lumbar paravertebral myositis and discogenic disease. According to the examiner, a February 2000 EMG of both lower extremities revealed no evidence of radiculopathy and peripheral neuropathy. In August 2006, he underwent an additional VA examination, where he complained of intense, radiating pain. He noted that, during an acute flare-up, he cannot perform any functional activity and has to rest. Range of motion was noted as zero to 20 degrees of forward flexion and zero to 10 degrees of extension, right and left lateral flexion, and rotations. There was no painful motion measured in the range of motion, and he was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use of the thoracolumbar spine. The examiner further commented that there was no functional impact. There were no palpable lumbar spasms, but there was tenderness to palpation. There was no weakness of the legs with muscle strength graded 5/5. There were no postural or fixed abnormalities. The neurological examination revealed diminished pinprick sensation and smooth sensation in the legs, nonradicular. There was no muscle atrophy of the lower extremities, and muscle tone & strength in the lower extremities were normal. Patellar reflexes were +1 bilaterally and symmetric, as well as absent ankle jerk. However, there was a positive straight leg test on the right, but the left side was negative. An October 2006 MRI showed generalized degenerative disc disease and hypertrophic facet disease. The Veteran had canal stenosis and neural foramina stenosis. He submitted additional private treatment records confirming his lumbar spine disability, including a February 2007 prescription for two weeks of bed rest. The Veteran submitted a March 2010 letter from a medical examiner. The examiner reviewed some of the medical evidence and indicated that there was cervical spinal cord compression and lumbar spinal canal stenosis. This is duplicative of evidence previously received. To the extent that it addresses the cervical spine, it is not relevant to the appeal as the Veteran is not service-connected for a cervical spine disability. A February 2011 MRI report has been associated with the record. The Veteran had desiccation of all the lumbar discs with diffuse spondylosis, Schmorl's nodes at the cranial endplate of L4, narrowing of the L2-L3 and L5-S1 intervertebral disc spaces, anterior bulging of the L1-L2 disc and circumferential bulging of the L2-L3, L3-L4, and L4-L5 discs with narrowing of the neural foramina, and wide based posterior L5-S1 disc herniation with facetal degenerative changes and narrowing of the neural foramina bilaterally. The Board finds first that the Veteran does not have a neuropathy appropriate to the site of the diseased disc prior to March 24, 2011. To the extent that he personally contends that his neuropathic symptoms prior to that date are the result of IVDS, his statements are either admissible hearsay of his doctor's statement or lay evidence. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran is competent to give evidence about what he experiences, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Whether the peripheral neuropathy is the result of diabetes or his service connected lumbar spine disability is not a question that may be answered by the Veteran's report of lay symptoms. He has offered no account of how, by his lay symptoms, he could know that the lower extremity symptoms are attributable to which disorder. The Board finds the issue can only be resolved by a medical opinion. Several medical opinions are of record regarding the presence of neuropathy appropriate to the discogenic disease prior to March 24, 2011. While absent ankle and knee jerks along with diminished sensation and vibration in the lower extremities were documented, VA examiners have opined that, based on multiple EMG and nerve testing results, those findings were due the peripheral diabetic neuropathy and not the service-connected back disability. This weighs against his claim. The Board has considered the testimony of the Veteran's physician in December 1999, but the weight of the clinical findings both before and after December 1999 is against the presence of sciatic neuropathy. Therefore, the Board finds the Veteran does not have neuropathy appropriate to the site of the diseased disc prior to March 24, 2011. Moreover, there have been no clinical findings of pronounced IVDS with persistent symptoms with little intermittent relief. Although it is clear from the record that the Veteran suffers pain associated with his low back disability as well as loss of range of motion of the lumbar spine, there is no objective evidence to indicate that his low back symptoms, including pain and weakness, result in any additional limitation of function to a degree that would support a disability evaluation in excess of the 40 percent. In fact, in the August 2006 VA examination, the examiner reflected that the Veteran's range of motion was not limited by pain, weakness, fatigability, lack of coordination, lack of endurance on repetitive motion or flares. The Board also notes that a 40 percent evaluation corresponds with severe limitation of motion of the lumbar spine under DC 5292. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In the absence of either pronounced attacks or neuropathy prior to March 24, 2011, the Board finds that the Veteran's service-connected lumbar spine disability has not been productive of IVDS with pronounced attacks with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. The Board concludes that a 60 percent rating is not warranted under pre-amendment DC 5293 prior to March 24, 2011. The Board also notes that lumbar strain, formerly rated under DC 5295, warranted a 40 percent evaluation where there is severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). Similarly, limitation of lumbar motion warranted a 40 percent evaluation with "severe" limitation under prior criteria. 38 C.F.R. § 4.71a, DC 5292 (2002). The Veteran is already in receipt of a 40 percent rating. Next, the Board turns to the Incapacitating Episodes Formula criteria as amended in 2002 and 2003. Under either set of the revised IVDS criteria, a 60 percent rating is warranted where incapacitating episodes of at least 6 weeks are present in a twelve month period. 38 C.F.R. § 4.71a, DC 5293 (2003), DC 5243 (2012). An "incapacitating episode" is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. The evidence does not show that the Veteran has been prescribed bed rest for six weeks during the any twelve month period prior to March 24, 2011. Between September 2002 and March 24, 2011, he has stated that he rested during flares in pain, but only two weeks worth of prescribed bedrest were shown in February 2007. The March 2011 VA examination report indicates that a Dr. S. had prescribed bedrest on "several occasions" in the prior twelve month period for two to three days at a time due to acute IVDS. Although Dr. S.'s treatment would have occurred prior to March 24, 2011, the his reference to "several occasions" does not support the requirement of six week total duration, nor has the Veteran so contended. Review of the private and VA treatment records prior to March 24, 2011, shows only two weeks of physician prescribed bedrest in February 2007. Therefore, a rating in excess of 40 percent is not warranted under either the 2002 or 2003 IVDS incapacitating episodes criteria prior to March 24, 2011. Since March 24, 2011 The grant of separate 20 percent ratings for lumbar radiculopathies effective March 24, 2011, results in a combined rating as great as a 60 percent rating under either pre- or post-revision DC 5293 and DC 5243. The Veteran's 40 percent rating for severe limitation of motion was not disturbed. Lumbar radiculopathies were rated under DC 8520. See 38 C.F.R. § 4.124a (2012). Under the combined ratings table, a 40 percent rating and two 20 percent ratings combine for a 60 percent schedular evaluation. Moreover, the Veteran remains eligible for a rating in excess of 60 percent should the lumbar radiculopathies worsen. See 38 C.F.R. § 4.124a (2012). The Board notes that the combination of orthopedic and neurologic ratings equals the maximum rating available under either the DC 5293 in effect prior to September 2002, and under the DC 5293 and DC 5243 using incapacitating episodes effective September 2002. Further discussion of the ratings criteria for IVDS is moot on and after March 24, 2011. The Veteran underwent another VA examination in March 2011. He complained of intense pain in his mid back radiating to his hips. He indicated that he had flare-ups every two to four months of a duration of one to two days. Walking and lifting objects precipitated the flare-ups, rest and medication alleviated them. He reported difficulty doing all his activities of daily living during flare-ups. His posture was stooped. Range of motion and DeLuca testing were not done because the Veteran had severe loss of balance and coordination and was a high fall risk. He was cooperative with the examiner and examination. There were palpable spasms, guarding, tenderness, weakness and pain with motion but not atrophy. The neurological examination revealed diminished vibration, pinprick, and light touch sensation and dysesthesias in the dorsum and lateral aspect of both feet. The examiner indicated that these were L4-L5 and L5-S1 radiculopathies. There was no muscle atrophy of the lower extremities, and muscle tone in the lower extremities was normal. His muscle strength was generally intact, graded 5/5, in all groups except in left great toe extension, which was 3/5. Patellar and ankle reflexes were 1+ bilaterally and symmetric. As a result of this VA examination report, the RO granted service connection for lumbar radiculopathies of each leg, with initial 20 percent ratings effective March 24, 2011, the date of the examination. The Veteran was notified of that decision in September 2011. He did not disagree with the initial ratings or effective dates assigned. The rating decision has become final. The Veteran submitted a June 2011 letter from a medical doctor which states that the Veteran has lumbar spine degenerative disease with canal stenosis. This letter was in support of claims for service connection for fecal incontinence and erectile dysfunction which were subsequently denied in a September 2011 rating decision. The Veteran did not appeal that decision, and it became final. The Veteran's VA treatment records through July 2012 are of record. In 2012, he was to have poor balance and found to be at risk for falling. He complained of recently increased low back pain in January. He requested a rollator in February, and indicated that he felt unstable using his cane. A March entry states that he came in reporting worsening back pain that morning over recent days. He admitted that he ran out of his narcotic pain control medication a month before. A May evaluation noted the presence of bilateral knee degenerative joint disease, with a right knee replacement, diabetes, hypertension, diabetic neuropathy, congestive heart failure, and low back pain. The Veteran complained of difficulty walking and bilateral knee pain. His son lived with him and did the housework, although he remained independent in activities of daily living. In this case, it is clear that the Veteran suffers from an ongoing low back disorder that involves pain and discomfort, as well as limited motion. The Board has considered the January and March 2012 complaints of recently worsened pain. The record is clear in that he has occasional flare-ups of pain. These appear to be such flare-ups. For at least one of these episodes, he had been noncompliant with pain control medication. There is no indication of sustained worsening such that an additional examination would be necessary. Moreover, he is already in receipt of the maximum rating possible for complaints of low back pain. The current evaluation is the equivalent of presence of pronounced attacks of IVDS under DC 5293. Further discussion is not warranted. The Board turns, finally, to whether the Veteran may receive ratings for orthopedic and neurological manifestations apart from DCs 5293 and 5243 that may combine to a rating in excess of 40 percent. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. Note 2 provided that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. See 67 Fed. Reg. 54,345 (2002). The Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code. In 2005, the Board denied service connection for fecal incontinence. The Board denied increased staged ratings for neurogenic bladder in March 2008. The Veteran abandoned those issues on appeal to the Veterans Claims Court. He filed new claims for fecal incontinence and erectile dysfunction which were denied in a September 2011 rating decision. He did not initiate an appeal of that rating decision. In light of the above, the Board finds that, since March 24, 2011, the Veteran did not have objective neurological complications not already separately evaluated. His present disability rating otherwise meets or exceeds all other potentially applicable ratings provisions. A rating in excess of 40 percent is not warranted under any version of 38 C.F.R. § 4.71a. Extraschedular Rating With respect to the claim, the Board has applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all the Veteran's low back symptoms to his service-connected disability. With that in mind, the Board has considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." See also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals, such as back pain and limited motion, are the symptoms included in the criteria found in the rating schedule for his disability. Specifically, the schedular criteria are adequate to rate the Veteran's low back disability. His testimony and statements in support of his claim indicate that he suffers from functional impairment due to chronic pain, limited motion, fatiguability, acute flare-ups, and the need for rest. He remained independent in activities of daily living through May 2012. These are all anticipated for musculoskeletal disabilities in both the ratings criteria contained in 38 C.F.R. § 4.71a, in the instructions in applying those criteria in 38 C.F.R. §§ 4.40, 4.45, and 4.59 and as explained in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and its progeny. Moreover, the March 2011 VA examination states that the Veteran has debilitating flare-ups in pain, which have severe effects on his activities of daily living. This is, again, contemplated by the schedular ratings criteria under incapacitating episodes. The Veteran testified in July 1995 that his lumbar spine disability operated in conjunction with a cervical and thoracic spine disability and his knees to disable him. His cervical and thoracic spine and bilateral knee service connection claims were denied. He indicated that he was retired at his November 1997 VA examination. He reported that he was on Social Security benefits during his June 1999 VA examination, having worked as a lawyer. A May 2000 formal claim for TDIU states that he had retired in 1990 from working as a judge from 1978 to 1990. During his March 2011 VA examination, he indicated that he had been a lawyer and retired in 1992. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations are adequate to rate his service connected disability. As such, referral for extraschedular consideration is not warranted. Additional Considerations Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings, but for the reasons given above finds that the criteria for a rating in excess of 40 percent have not been at any individual time prior to March 24, 2011. The RO has already granted a staged rating for the period beginning on and after March 24, 2011. This stage meets or exceeds the schedular maximums for several potentially applicable DCs. As discussed above, the Veteran does not otherwise satisfy the criteria for a rating in excess of that assigned on and after March 24, 2011. The Board also finds that the schedular ratings criteria have been adequate to rate his disability throughout the period on appeal. The reasons for adequacy of the ratings schedule are constant throughout the period on appeal. The Board sees no reason, based on the record, that the schedular ratings criteria would be inadequate for any portion of the period on appeal. Accordingly, further staged ratings, whether schedular or extraschedular, are inapplicable. The Board has also considered whether entitlement to a total disability rating based on individual unemployability (TDIU) has been raised. TDIU is an alternative theory of all claims for a higher disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU was claimed formally by the Veteran in 1999. His statements in 1999 were that his service-connected "conditions" rendered him unemployable while pursuing not only the increased rating discussed above, but also service connection for right ear hearing loss, an acquired psychiatric disability, a cervical and thoracic spine disability, bilateral knee disabilities and for fecal incontinence. The Board granted TDIU in March 2008, following the award of service connection for right ear hearing loss by the Board in August 2005 and the grant of service connection for an acquired psychiatric disability also in March 2008. The Board's discussion makes clear that the presence of multiple service-connected disabilities rendered him unemployable. The effective date of TDIU was assigned by the RO in an October 2009 rating decision implementing the Board's grant. The Veteran did not disagree with that rating decision. TDIU may also be awarded on the basis of a single service-connected disability without regard to other service-connected disabilities. Bradley v. Peake, 22 Vet.App. 280, 291-92 (2008). TDIU may be raised explicitly by a claimant or inferred from the record. An inferred claim for a TDIU is raised as part of an increased rating claim only when certain requirements are met. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). TDIU is raised by inference when: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran has not claimed that the back disability alone merited a TDIU. The Veteran's representative has been making arguments in favor of the maximum rating available under the pre-September 2002 DC 5293. He has not argued that the back disability alone renders him unemployable or prevents him from obtaining or maintaining substantially gainful employment. His work history, as noted in the extraschedular discussion above, was as a lawyer and judge, from which he retired in 1990. He has not pursued employment since his retirement. This evidence of record, as outlined above, does not suggest that the back disability alone renders him unemployable or prevents him from obtaining or maintaining substantially gainful employment. The Board finds that the third Roberson element, submission of evidence of unemployability solely on the basis of the back disability, has not been received. See Roberson, 251 F.3d at 1384. The Board concludes, therefore, that TDIU was not raised within the context of the back disability claim alone and needs not be considered here. See Jackson, 587 F.3d at 1109-10. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the Veteran filed the instant claim in 1992 and initial adjudication occurred in 1993, several years prior to the passage of the VCAA. The duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. The duty to notify was satisfied subsequent to the initial RO decision by way of a letters sent to the Veteran in January 2004 and January 2006 that fully addressed all notice elements. The letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was sent notice of the ratings schedule and its application and the provisions concerning effective dates in March 2006. He was provided the opportunity to submit additional evidence or allow VA to obtain evidence on his behalf in March 2011. He filed new claims for service connection in response. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statements of the case, issued most recently in July 2012, years after the notice was provided. Although the notice letters were not sent before the initial RO decision in this matter, the Board finds that the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (issuance of a fully compliant VCAA notification followed by readjudication of claim, such as a supplemental statement of the case, is sufficient to cure a timing defect.). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. As discussed in the Introduction, the Court vacated and remanded a March 2008 Board decision for additional development in compliance with a June 2009 JMR. The JMR indicated that a review of the record showed that he underwent an October 2006 VA examination, the report of which was not in the claims file and had not been considered by the Board. The RO has conducted appropriate searches and created a July 2012 Formal Finding of Unavailability concerning this report. The RO determined that no October 2006 VA examination occurred, so no report ever existed. The Board finds that there are no VA outstanding records relevant to this claim. Private medical records identified by the Veteran have been obtained, to the extent possible. As mentioned, he was sent a March 2011 letter indicating that additional evidence was necessary to substantiate this claim and to either provide it himself or to provide VA the necessary releases to obtain it on his behalf. Although he discussed treatment by a Dr. S. during a VA examination also in March 2011, he did not provide treatment records or an authorized release so that VA might obtain records from Dr. S. on his behalf. In light of the timely notice, the fact that the Veteran is represented by an attorney who also received that notice and the fact that the Veteran is himself a retired attorney, the Board finds that VA could not assist him due to his failure to cooperate with the development process. The Board concludes that the duty to assist in obtaining records was adequately discharged. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is not a "one-way street"). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran'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 Veteran was afforded VA medical examinations in November 1997, June 1999, December 1999, January 2000, February 2000, May 2004, August 2006, and March 2011. He has not reported receiving any recent treatment specifically for this disability (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. The Veteran and his attorney representative have not indicated that his disability has worsened since his last VA examination. There is no lay or medical evidence indicating that there has been a material change in the severity of his service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). He had complaints of episodes of worsening pain in January and March 2012. The record is clear in that he has occasional flare-ups of pain. These appear to be such flare-ups. For at least one of these episodes, he had been noncompliant with pain control medication. There is no indication of sustained worsening such that an additional examination would be necessary. The 2011 examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating criteria are adequate to rate his disability. 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. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95. The 2011 VA examination report is thorough and supported by VA outpatient treatment records which are current through July 2012. The examination in this case is adequate upon which to base a decision. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board has remanded this case repeatedly. The Board remanded this case in February 2010 and March 2012 to locate an October 2006 VA examination report or for the RO to prepare a formal finding of unavailability. The RO did prepare the formal finding of unavailability in July 2012. That finding appears based on a thorough and correct review of the Veteran's Veterans Health Administration record. The Board finds that the RO complied substantially with February 2010 and March 2012 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. ORDER A rating in excess of 40 percent for degenerative osteoarthritis with spondylosis, lumbar paravertebral myositis, and discogenic disease is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs