Citation Nr: 1313143 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 07-23 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for spondylolisthesis with spinal fusion of the lumbosacral spine prior to December 1, 2006. 2. Entitlement to an initial evaluation in excess of 20 percent for spondylolisthesis with spinal fusion of the lumbosacral spine for the period from December 1, 2006, to February 8, 2011. 3. Entitlement to an initial evaluation in excess of 40 percent for spondylolisthesis with spinal fusion of the lumbosacral spine on or after February 9, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran had active service from May 1972 to March 2005. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Togus, Maine. In that decision, the RO granted service connection for spondylolisthesis, L5-S1, treated with L4-S1 fusion with good post operative result (claimed as a low back disorder) and assigned an initial 10 percent evaluation effective from April 1, 2004. In a May 2007 rating decision, the RO increased the initial 10 percent evaluation for spinal fusion of the lumbosacral spine at L4-S1 to 20 percent effective on December 1, 2006. In a January 2012 rating decision, the RO subsequently increased the rating to 40 percent for spondylolisthesis and spinal fusion of the lumbosacral spine effective on February 9, 2011. The Veteran was advised of the decisions, but he did not express agreement with the decisions or withdraw the appeal. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. Because the 20 percent and 40 percent disability ratings are not the maximum benefits available for the service-connected low back disability, this appeal continues for the entire initial rating period. In December 2010, the Board remanded the case for additional development and adjudicative action. The case has been returned to the Board for further appellate review. A review of the Virtual VA paperless claims processing system reveals VA treatment records dated from June 2005 to October 2011 that are pertinent to the present appeal. However, those records were considered by the RO prior to the issuance of a Supplemental Statement of the Case (SSOC) in January 2012. In addition, the Veteran submitted a statement in January 2012 indicating that he waived the RO's initial consideration of any additional evidence submitted. Therefore, the Board finds that there is no prejudice in proceeding with consideration of the evidence in the Virtual VA file. FINDINGS OF FACT 1. Prior to December 1, 2006, the Veteran's spondylolisthesis with spinal fusion of the lumbosacral spine was manifested by limitation of forward flexion to 50 degrees; however, the disability was not productive of forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 2. For the period from December 1, 2006, to February 8, 2011, the Veteran's spondylolisthesis with spinal fusion of the lumbosacral spine was not productive of forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 3. For the period beginning on February 9, 2011, the Veteran's spondylolisthesis with spinal fusion of the lumbosacral spine has not been productive of unfavorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 4. The Veteran is already service-connected for paresthesias of the left lower extremity associated with spondylolisthesis with spinal fusion of the lumbosacral spine, and he does not have any other separate neurological disability distinct from his lumbosacral spine disability and paresthesias. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 20 percent disability evaluation for spondylolisthesis with spinal fusion of the lumbosacral spine prior to December 1, 2006, have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5239 (2012). 2. The criteria for a disability evaluation in excess of 20 percent for spondylolisthesis with spinal fusion of the lumbosacral spine have not been met for the period from December 1, 2006, to February 8, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5239 (2012). 3. The criteria for a disability evaluation in excess of 40 percent for spondylolisthesis with spinal fusion of the lumbosacral spine have not been met on or after February 9, 2011. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for spondylolisthesis with spinal fusion of the lumbosacral spine. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8- 2003 (December 22, 2003). Thus, VA's duty to notify has been satisfied. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA general medical examination in July 2005 and VA joint examinations in December 2006 and February 2011. In December 2010, the claim was remanded to the RO for an adequate VA examination, to specifically include addressing possible neurological abnormalities in the left lower extremity and addressing factors not contemplated in the relevant rating criteria, such as additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In the remand, the Board noted that the previous VA examinations of record did not adequately address any neurological abnormalities pertaining to the left lower extremity. In addition, the July 2005 VA examination did not include repetitive range of motion testing findings, and the December 2006 VA examination did not address incapacitating episodes or whether the Veteran experienced a decrease in range of motion during flare-ups of pain. The Board finds that the February 2011 VA medical opinion obtained in this case is adequate, as it is predicated on a full reading of the Veteran's claims file. It considers all of the pertinent evidence of record and adequately addresses possible neurological abnormalities pertaining to the left lower extremity and factors not contemplated in the relevant rating criteria, including repetitive range of motion testing findings and addressing whether the Veteran experienced incapacitating episodes or a decrease in range of motion during flare-ups of pain. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with an SOC and an SSOC, which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims, and he did, in fact, participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Laws and Regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous..." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2012) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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. 38 C.F.R. § 4.59 (2012). The Veteran's spondylolisthesis and spinal fusion of the lumbar spine at L4-S1 has been evaluated pursuant to 38 C.F.R. § 4.71a, General Rating Formal for Diseases and Injuries of the Spine. The criteria for rating diseases and injuries of the spine are found in Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). In this case, the Veteran has been evaluated under Diagnostic Code 5241 (spinal fusion). Under the 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 evaluation is appropriate for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation 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 disability evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Moreover, 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. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is appropriate for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least 6 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 requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Factual Background and Analysis A review of the Veteran's service treatment records show that the Veteran was diagnosed with spondylosis of L5 on S1 during service. In February 1998, he underwent a stabilization procedure with hardware, producing a spinal fusion from L4 through S1. As previously noted, the RO granted service connection in an August 2005 rating decision and assigned an initial evaluation effective from April 1, 2004. During the pendency of the appeal, he has been assigned a 10 percent evaluation from April 1, 2004, a 20 percent evaluation from December 1, 2006, and a 40 percent evaluation from February 9, 2011. Period Prior to December 1, 2006 During a July 2005 VA general medical examination, the Veteran indicated that he had daily low back discomfort that he rated as 2 out of 10 in severity. He noted that his pain rose to a level of 6 out of 10 in severity for the duration of approximately one day after overuse. He stated that he had learned to guard his lower back and lift no more than approximately 40 pounds. He indicated that he had a 10 percent restriction in forward flexion and lost 30 percent of this motion with exacerbation. On examination, the Veteran demonstrated an erect posture and ambulated with a normal gait. He walked on his toes and heels, squatted, and flexed forward without difficulty. Range of motion testing revealed 0 to 15 degrees of backward flexion, 0 to 15 degrees of right and left lateral flexion, 0 to 70 degrees of forward flexion, and an additional 10 degrees of forward flexion with pressure by the examiner. The examiner noted that the additional 10 degrees of forward flexion was associated exclamations of discomfort. In a September 2006 VA treatment note, the examiner noted that the Veteran's gait was normal and that his strength was strong and equal in the bilateral lower extremities. He was referred to physical therapy for complaints of low back pain. A September 2006 VA x-ray of the lumbar spine showed approximately grade I to grade II spondylolisthesis at L5-S1 and short Harrington rods with long compression screws through the L4 to S1 vertebral bodies. In September 2006 correspondence to the Veteran, a VA physician's assistant reported that the recent x-ray of the lumbar spine did not show anything "too unexpected." He noted that the rods and screws were "in place as they [were] supposed to be." He also indicated that the x-rays showed "otherwise minimal findings." In an October 2006 VA treatment note, the Veteran complained of low back pain that had progressively worsened since his lumbar fusion surgery. He reported that his left leg cramped when he stood from a squatting position, and he indicated that rest and heat helped to alleviate his back pain. He rated his pain as 6 out of 10 in severity and described it as "aching." Range of motion testing revealed lumbar flexion to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 25 degrees, and bilateral rotation to 15 degrees. The examiner noted that the Veteran had a posterior pelvic tilt. The Veteran was instructed on finding the pelvic neutral position, which made the back pain less severe. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an increased evaluation for his lumbosacral spine disability prior to December 1, 2006. The evidence of record shows that the Veteran warrants a 20 percent disability evaluation prior to that date. Specifically, the October 2006 VA treatment note showed that the Veteran only had 50 degrees of forward flexion, which meets the rating criteria for a 20 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine (a 20 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees). Thus, taking into account the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings of DeLuca, supra, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that a 20 percent evaluation is warranted prior to December 1, 2006. The Board has also considered whether a disability evaluation in excess of 20 percent is warranted for the Veteran's lumbosacral spine disability prior to December 1, 2006. However, the Veteran has not been shown to meet the criteria for a rating in excess of 20 percent for this period. The evidence does reveal forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In this regard, the July 2005 VA examination found the Veteran to have forward flexion to 70 degrees, extension to 15 degrees, and lateral rotation to the left and right to 15 degrees. In addition, the examiner noted that the Veteran demonstrated an additional 10 degrees of forward flexion with pressure. Additionally, the October 2006 VA treatment note indicated that the Veteran had forward flexion to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 25 degrees, and bilateral rotation to 15 degrees. The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the aforementioned range of motion findings, the Veteran's spine does not appear to be fixed or immobile despite the spinal fusion at L4-S1. Moreover, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The Board observes that there are no treatment records associated with the period before December 1, 2006, indicating that the Veteran was prescribed bed rest by any physician for at least four weeks. After reviewing the record, the Board further finds that a separate disability rating is not warranted for this period because the evidence does not demonstrate that the Veteran suffered from a separate neurological disability distinct from his lumbosacral spine disability. The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. Notably, the Veteran is already separately service-connected for paresthesias of the left lower extremity associated with spondylolisthesis and spinal fusion of the lumbosacral spine. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness for the period before December 1, 2006, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's lumbosacral spine disability for the period prior to December 1, 2006. Period from December 1, 2006 to February 8, 2011 During a December 2006 VA spine examination, the Veteran reported that he had not been treated for his low back pain since his VA examination in July 2005. He indicated that his back pain was generally localized on the left side of the spinal column in the lumbar area. He denied any neurological deficits, such as radiation into the leg or hip. The Veteran noted that he had occasional cramping in the posterior thigh of the hamstring area in his left leg when he carried a load of wood and kneeled onto his left leg. He stated, "I don't do any heavy lifting any more secondary to possibly flaring up the back." He indicated that his back pain was generally 2 out of 10 in severity. He noted that he had slight stiffness when he woke in the morning that was relieved with a hot shower. He related that he participated in physical therapy in the past year, which improved his symptoms. The Veteran also reported that he avoided heavy physical activity, such as chopping wood and playing golf, due to flare ups of pain in his low back. He denied having any bladder or bowel incontinence. He also denied the use of assistive devices or back braces. On examination, the Veteran walked unaided without a limp. He had no difficulty climbing onto the examination table or undressing. There was slight tenderness to palpation on the paravertebral muscles at about L3-L4, but no atrophy or hypertrophy of the muscle. The examiner noted that the Veteran did not complain of neurological deficits, such as radiation into the leg or hip. Range of motion testing revealed flexion from 0 to 60 degrees with no increased pain at 60 degrees and no further flexion from 60 to 90 degrees. There was extension from 0 to 10 degrees with no pain, bilateral lateral flexion from 0 to 30 degrees with no pain, and bilateral rotation from 0 to 30 degrees with no pain. On repetition, there was no increased pain, fatigue, weakness, lack of endurance, or incoordination. In his July 2007 substantive appeal, the Veteran asserted that his lumbar spine disability is more severe than currently rated. He reported that he had muscle spasms and "partial feeling in his left leg." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his lumbosacral spine disability for the period from December 1, 2006, to February 8, 2011. The evidence of record shows that the Veteran does not meet the criteria for rating in excess of 20 percent for this period. Specifically, the evidence does reveal forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In this regard, during the December 2006 VA spine examination, the examiner found that the Veteran had forward flexion from 0 to 60 degrees with no increased pain at 60 degrees. He had extension from 0 to 10 degrees without pain, bilateral lateral flexion from 0 to 30 degrees without pain, and bilateral rotation from 0 to 30 degrees without pain. On repetition, there was no increased pain, fatigue, weakness, lack of endurance, or incoordination. Based on the aforementioned range of motion findings, the Veteran's spine does not appear to be fixed or immobile. Moreover, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. In fact, the Board observes that there are no treatment records associated with the period from December 1, 2006, to February 8, 2011, indicating that the Veteran was prescribed bed rest by any physician for at least four weeks. After reviewing the record, the Board further finds that a separate disability rating is not warranted for this period because the evidence does not demonstrate that the Veteran suffered from a separate neurological disability distinct from his lumbosacral spine disability. The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. In fact, during the December 2006 VA spine examination, the Veteran denied any neurological deficits, such as radiation into the hip or leg, and bowel and bladder problems. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness for the period from December 1, 2006 to February 8, 2011, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of increased back pain. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Moreover, the December 2006 VA examiner noted that on repetition of range of motion testing, there was no increased pain, fatigue, weakness, lack of endurance, or incoordination. Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's lumbosacral spine disability for the period from December 1, 2006, to February 8, 2011. Period Beginning February 9, 2011 During a February 2011 VA spine examination, the Veteran complained of progressively worsening low back pain since his February 1998 lumbar spine fusion for a grade II L5-S1 spondylolisthesis. He indicated that he had paresthesia into the left lower extremity since the surgery, and he denied having any bowel or bladder dysfunction and muscle spasms. He reported symptoms of fatigue, decreased motion, stiffness, and weakness. The Veteran also related that he had constant, severe, sharp pain that radiated into his left lower extremity along the lateral left thigh, anterior shin, and dorsal foot. He described the radiating pain as paresthesia. He denied any incapacitating episodes of spine disease. He also denied the use of any devices or aids, but he indicated that he was unable to walk more than a few yards. On examination, the Veteran's gait was antalgic, wide, and slow. There was thoracolumbar spine ankylosis in part of the thoracolumbar spine, but the thoracolumbar spine was in the neutral position. Indications of unfavorable ankylosis included neurologic symptoms due to nerve root stretching. The examiner indicated that there was no evidence of spasms or atrophy of the thoracolumbar spine. He did note that there was evidence of guarding, pain with motion, tenderness, and weakness bilaterally. He also indicated that the localized tenderness or guarding was severe enough to be responsible for an abnormal gait or abnormal spine contour. Range of motion testing revealed flexion from 0 to 5 degrees, extension from 0 to 5 degrees, left lateral flexion from 0 to 10 degrees, left lateral rotation from 0 to 10 degrees, right lateral flexion from 0 to 10 degrees, and right lateral rotation from 0 to 10 degrees. There was objective evidence of pain on active range of motion testing, but there were no additional limitations after three repetitions of range of motion testing. A sensory examination revealed dyesthesias manifested as bilateral paralumbar pain and paresthesia into the left lower extremity L5 dermatome, including the lateral left thigh, anterior shin, and dorsal foot. A February 2011 x-ray of the lumbosacral spine showed an old fusion of L4-L5 and S1. The posterior fusion appeared solid with an associated laminectomy. Above the fusion at L3-L4, there was disc disease with narrowing of the disc but no subluxation and mild reactive lipping was noted of the endplates at L3-L4. The diagnoses included residuals of L4-S1 spine surgical fusion, left L5 radiculopathy, lumbar arthritis, and lumbar L4-S1 ankylosis due to surgical fusion. The February 2011 VA examiner noted that the Veteran was employed as a full-time program specialist for the past one to two years, and the Veteran denied any lost time from work in the past 12 month period. He did note that he was assigned different employment duties due to his low back pain. The Veteran also acknowledged the following effects on occupational activities: decreased mobility, problems with lifting and carrying, difficulty reaching, decreased strength in the lower extremities, and pain. He further noted that he had constant low back pain that was exacerbated by activities involving trunk range of motion, walking, and standing. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his lumbosacral spine disability for the period beginning on February 9, 2011. The evidence of record shows that the Veteran does not meet the criteria for a rating in excess of 40 percent for this period. Specifically, the evidence does reveal unfavorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In this regard, during the February 2011 VA spine examination, the examiner noted that the Veteran demonstrated forward flexion from 0 to 5 degrees, extension from 0 to 5 degrees, left lateral flexion from 0 to 10 degrees, left lateral rotation from 0 to 10 degrees, right lateral flexion from 0 to 10 degrees, and right lateral rotation from 0 to 10 degrees. As discussed above, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Based on the aforementioned range of motion findings, the Veteran's spine does not appear to be fixed or immobile despite the spinal fusion at L4-S1. Moreover, despite noting ankylosis in part of the thoracolumbar spine, the February 2011 VA examiner specifically noted that it was in a neutral position. Nor is there any indication that the entire thoracolumbar spine is fixed in flexion or extension. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). In addition, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least six weeks during the past 12 months. As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The Board observes that the Veteran specifically denied having any incapacitating episodes of spine disease during the February 2011 VA examination. Additionally, there are no treatment records associated with the period beginning on February 9, 2011, indicating that the Veteran was prescribed bed rest by any physician for at least six weeks. After reviewing the record, the Board further finds that a separate disability rating is not warranted for this period because the evidence does not demonstrate that the Veteran suffered from a separate neurological disability distinct from his lumbosacral spine disability. Notably, the Veteran is already separately service-connected for paresthesias of the left lower extremity associated with spondylolisthesis and spinal fusion of the lumbosacral spine. The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness for the period beginning on February 9, 2011, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of continued pain in his lumbar spine. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 40 percent disability evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. In fact, the February 2011 VA examiner noted that, although there was objective evidence of pain with active range of motion testing, there were no additional limitations after three repetitions. Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 40 percent for the Veteran's lumbosacral spine disability for the period beginning on February 9, 2011. Extraschedular Consideration In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's lumbosacral spine disability is so exceptional or unusual as to warrant the assignment of higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule show that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Veteran's chief complaints of pain and limitation of motion are fully considered in the assignment of the 20 and 40 percent disability ratings. Moreover, there are higher ratings available under the diagnostic codes for various symptoms of disorders of the spine, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbosacral spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Subject to the provision governing the award of monetary benefits, a 20 percent disability evaluation for spondylolisthesis with spinal fusion of the lumbosacral spine prior to December 1, 2006, is granted. For the period from December 1, 2006, to February 8, 2011, an evaluation in excess of 20 percent for spondylolisthesis with spinal fusion of the lumbosacral spine is denied. For the period beginning February 9, 2011, an evaluation in excess of 40 percent for spondylolisthesis with spinal fusion of the lumbosacral spine is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs