Citation Nr: 1314589 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-31 721A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial disability rating higher than 10 percent for degenerative disc disease (DDD) of the lumbar spine from January 28, 2005 to November 6, 2012, and higher than 20 percent since November 7, 2012. 2. Entitlement to an initial disability rating higher than 10 percent for associated peripheral neuropathy of the right lower extremity with foot drop from January 28, 2005 to February 8, 2009, and a rating higher than 40 percent since February 9, 2009. 3. Entitlement to an initial disability rating higher than 10 percent for associated peripheral neuropathy of the left lower extremity from January 28, 2005 to February 8, 2009, higher than 20 percent from February 9, 2009 to November 6, 2012, and higher than 40 percent since November 7, 2012. ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from March 1941 to February 1943, from July 1943 to June 1945, and from March 1947 to October 1964. This appeal to the Board of Veterans' Appeals (Board/BVA) is from April 2005, May 2005, and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The April 2005 decision granted service connection for these disabilities and assigned a 10 percent initial rating for the DDD of the lumbar spine and 0 percent (i.e., noncompensable) ratings for the associated peripheral neuropathy of the lower extremities, all retroactively effective from January 28, 2005, the date of receipt of these claims. The Veteran appealed for higher initial ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times if there have been occasions since the effective date of the award when the disability has been more severe than at others). The May 2005 decision since issued confirmed and continued these initial ratings. In October 2008, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, DC, so the RO could consider additional evidence in the first instance and provide the Veteran a supplemental statement of the case (SSOC) if the disposition of these claims remained unfavorable. 38 U.S.C.A. §§ 19.31, 19.37, 20.800, 20.1304. In the December 2011 decision since issued, on remand, the RO found clear and unmistakable error (CUE) in the evaluation of the peripheral neuropathy affecting the right and left lower extremities, so retroactively increased the initial ratings from 0 to 10 percent, effective January 28, 2005 (hence, as of the same date as the prior ratings). Also, effective February 9, 2009, the RO increased the rating for the right lower extremity peripheral neuropathy to even higher, 40 percent, and to 20 percent for that affecting the left lower extremity. The RO also granted a total disability rating based on individual unemployability (TDIU) as of that same date, February 9, 2009, as well as basic eligibility to Dependents' Educational Assistance (DEA). The Veteran subsequently submitted a letter to the RO in January 2012 indicating he agreed "with all provisions and decisions" outlined in a January 2012 letter from the RO. That letter had specifically addressed the disposition of the December 2011 rating decision as concerning the peripheral neuropathy claims, but not the claim for a higher initial rating for the DDD of the lumbar spine. Therefore, the Board sent the Veteran a letter in August 2012 indicating that it was unclear whether he was withdrawing his appeal. The Board referenced the letter he had recently submitted and requested clarification of whether he was indeed withdrawing the claims for even higher ratings for the peripheral neuropathy affecting his lower extremities and whether he also was still appealing the rating assigned for the underlying DDD of his lumbar spine. The Board explained that withdrawal of his appeal of these claims needed to be in writing. See 38 C.F.R. § 20.204(b). He indicated in his September 2012 response that he was not withdrawing his appeal of any of these claims, so they remained at issue. The Board again remanded the claims in October 2012, this time to obtain outstanding private treatment records - including from Dr. S at Desert View Family Medical Center in Gilbert, Arizona - and to have the Veteran undergo another VA compensation examination reassessing the severity of the DDD of his lumbar spine and associated peripheral neuropathy affecting his lower extremities. In a written statement later in October 2012, however, he referenced the Board's October 2012 remand and his September 2012 written statement, indicating he agreed with the RO's provisions and decisions as stated in the January 2012 letter. He further stated that there was "no further action needed for my issues as stated, accept for a higher rating than 10 [percent] for the DDD of the lumbar spine and I don't think that is necessary either, all of my disability issues are getting worse with age, which I think is natural for my age of 88 years of life up to this point. For what little difference adjudication would make, if any, I don't think it would justify the many man hours required of the Veterans Administration to continue.... I am completely satisfied of the decisions that have been made concerning my disability issues. I recommend we bring this project to a close ASAP." In another October 2012 written statement, he indicated that entitlement of 40 percent disability for peripheral neuropathy of his right lower extremity with foot drop and entitlement to 20 percent disability for the associated peripheral neuropathy of his left lower extremity was proper without further action by VA. However, he also reiterated that he was not satisfied with the 10 percent disability rating for the DDD of his lumbar spine. Therefore, the Board construes that October 2012 written statements as withdrawing the claims for even higher ratings for the peripheral neuropathy of his lower extremities, but continuing the appeal for a higher initial rating for the DDD of his lumbar spine - especially seeing as though another decision since issued in February 2013 by the AMC increased the rating for the peripheral neuropathy of his right lower extremity to 40 percent retroactively effective as of November 7, 2012, the date of the VA compensation examination he most recently had on remand. As well, the AMC increased the rating for the DDD affecting his lumbar spine to 20 percent as of that same date, November 7, 2012. He also has contended that his service-connected anxiety disorder and retracted drums disability (balance condition) are steadily increasing in severity. (See May 2012 Written Statement). Thus, he appears to be filing additional claims for higher ratings for these other disabilities, as well. These other claims, however, have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not presently have jurisdiction to consider them, so is referring them to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). A review of the electronic ("Virtual VA") paperless claims processing system does not reflect additional treatment records. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a claim for benefits. Because this appeal was processed as part of the Virtual VA system, any future consideration of the Veteran's claims should take into consideration the existence of this electronic record. Please also 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. On October 31, 2012, prior to the promulgation of a final decision in this appeal, the Veteran notified the Board that he was withdrawing his claims for higher ratings for the associated peripheral neuropathy of his left and right lower extremities with foot drop. 2. For the entire appeal period, his lumbar disability has been manifested by constant pain - including radiating pain into his lower extremities. Forward flexion of his thoracic and lumbar (thoracolumbar) spine nonetheless has been greater than 30 degrees, even when considering the effect of his pain on his range of motion, including on prolonged or repetitive use of his low back. At worst, when considering the effect of his pain on his range of motion, his forward flexion has been limited to 40 degrees. X-rays have shown spondylolisthesis and spinal stenosis at several levels, but no vertebrae fractures. He has been able to walk only a few yards and requires the use of a cane or wheelchair, in part, because of this service-connected disability. This disability prevents exercise, recreation, employment, and severely limits his ability to travel without a wheelchair. He has not, however, had ankylosis of his entire thoracolumbar spine, either favorable or unfavorable, or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the claims for higher ratings for the associated peripheral neuropathy of the left and right lower extremities with foot drop. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. But a higher 20 percent rating is granted for the DDD of the lumbar spine retroactively effective from January 28, 2005 (so not just, instead, as of November 7, 2012). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, DCs 5235-5243 (2012). 3. The criteria are not met, however, at any time since receipt of this claim on January 28, 2005 for a rating higher than 20 percent for this low back disability. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawl of Peripheral Neuropathy Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. On October 31, 2012, prior to the promulgation of this decision, the Board received notification from the Veteran that he was withdrawing his appeal for higher ratings for the associated peripheral neuropathy affecting his lower extremities. Specifically, in that statement he referenced the Board's October 2012 remand and his earlier September 2012 written statement, and he indicated that he agreed with the RO's provisions and decisions as stated in the January 2012 letter. He further indicated there was "no further action needed for my issues as stated, accept for a higher rating than 10 [percent] for the DDD of the lumbar spine and I don't think that is necessary either, all of my disability issues are getting worse with age, which I think is natural for my age of 88 years of life up this point. For what little difference adjudication would make, if any, I don't think it would justify the many man hours required of the Veterans Administration to continue.... I am completely satisfied of the decisions that have been made concerning my disability issues. I recommend we bring this project to a close ASAP." In another October 2012 written statement, he indicated that entitlement to 40 percent disability for peripheral neuropathy of his right lower extremity with foot drop and entitlement to a 20 percent disability rating for the associated peripheral neuropathy of his left lower extremity was proper without further action by VA. The AMC's February 2013 decision since issued, in part, increased the rating for the peripheral neuropathy of his right lower extremity to 40 percent retroactively effective as of November 7, 2012, the date of the VA compensation examination he most recently had on remand. Hence, as it appears he is satisfied or content with the ratings he has for this bilateral lower extremity peripheral neuropathy, there remain no allegations of errors of fact or law for appellate consideration concerning these claims. Accordingly, these claims are dismissed. Duties to Notify and Assist as Concerning the Remaining Claim for Higher Ratings for the Underlying Low Back Disability VA's duties to notify and assist claimants in substantiating claims for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and any medical or lay evidence not of record that is: (1) necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should precede the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). However, even if notice was not provided before initially adjudicating the claim or, if it was, it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to rectify ("cure") a timing defect in the provision of notice because the intended purpose of the notice is preserved, rather than frustrated, in that the Veteran is still provided ample opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim. Here, prior to the issuance of the April 2005 rating decision that is the subject of this appeal, the Veteran was advised in a February 2005 letter of the type of evidence and information needed to substantiate his claim - keeping in mind that his claim, at the time, was to establish his underlying entitlement to service connection for this low back disability. He also was advised of his and VA's respective responsibilities in obtaining this supporting evidence. Additional VCAA letters were sent in June and September 2008 with subsequent readjudication of his claim in a February 2013 SSOC. Moreover, when, as here, the claim arose in the context of the Veteran trying to establish his underlying entitlement to service connection, and this since has been granted and he has appealed a "downstream" issue, namely, the initial rating assigned for his disability, 38 U.S.C.A. § 5103(a) notice is no longer required because the initial intended purpose of the notice has been served inasmuch as the claim as it arose in its initial context has been substantiated, indeed granted. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Thereafter, according to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008) and other precedent cases, once a Notice of Disagreement (NOD) has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding a rating decision and SOC control as to the further communications with him, including as to what evidence is necessary to establish a more favorable decision with respect to this downstream elements of the claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). And he received this required SOC, also, as mentioned, an SSOC. The SOC and SSOC cited the applicable statutes and regulations governing the assignment of disability ratings, including in terms of what needed to be shown to receive a higher rating. The SOC and SSOC also contained discussion of the reasons and bases for not assigning ratings higher than have been assigned. He therefore has received all required notice concerning this claim. VA also has a duty to assist claimants in obtaining evidence needed to substantiate claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). This includes provision of a VA medical examination when needed to assist in deciding a claim This duty also has been met in this instance, as the Veteran's service, post-service VA and obtainable private treatment records have been associated with the claims file for consideration and since he was afforded several VA examinations in connection with his claim in March 2005, February 2009, December 2009, and November 2012. VA has a duty to ensure that its examinations or opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As the reports reflect review of the claims file and assessment of his contentions and disability, the reports are adequate for rating purposes. The duty to assist in the gathering of records and obtaining a VA examination has been met and the RO/AMC has substantially completed the Board's October 2012 remand directives by issuing a development letter for records from Desert View Family Medicine and having the Veteran undergo the additional VA compensation examination in November 2012. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The prior October 2008 remand directives also were complied with when the RO considered the newly submitted evidence that the Veteran had not waived his right to have the RO, rather than the Board, initially consider. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record does not suggest the existence of any additional, pertinent, evidence that has not been obtained and/or attempted to be obtained and that is obtainable. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Higher Ratings for the Lumbar Spine Disability This low back disability was rated as 10-percent disabling from January 28, 2005 to November 6, 2012, and has been rated as 20-percent disabling effectively since November 7, 2012 under DC 5242. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities. See 38 C.F.R. Part 4. Specific DCs will be discussed where appropriate below. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. See Fenderson v. West, 12 Vet App 119 (1999). When assigning an initial rating, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the present level of disability is of primary importance, is not applicable. Therefore, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson, 12 Vet. App. at 125-26. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, premature or excess fatigability, or incoordination (to include during flare-ups or with repeated use), when these factors are not already contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other DCs assessing musculoskeletal function. Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 CF.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not limited to arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. Ratings higher than 20 percent are provided for flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of entire spine, that is, when also considering the adjacent cervical segment (100 percent). 38 C.F.R. § 4.71a, DCs 5235-5242. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a (2012). Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Note (5) to DCs 5235-5242 indicates that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or the entire spine is fixed in flexion or extension,.... Note (5) to DC 5235-5242 further indicates that fixation of a spinal segment in the neutral position (zero degrees) always represents favorable, as opposed to unfavorable, ankylosis. If, as here, the Veteran has DDD, i.e., intervertebral disc syndrome (IVDS), the low back disability also may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes found at 38 C.F.R. § 4.71a, DC 5243. This formula provides a rating of 20 percent for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) defines an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. Turning now to the medical and other evidence in this particular case. Treatment records reflect that the Veteran complained of low back pain with slight leg radiation on the left in January 1995. X-rays showed evidence of "bilateral defect in the pars articular at the 4th lumbar vertebra compatible with spondylolysis." A June 1995 treatment record reflected complaints of severe back pain. A December 2003 magnetic resonance imaging (MRI) noted grade 1 anteriolisthesis of L4-L5. He also had foraminal stenosis and sensorimotor polyneuropathy with radiculopathies at S1 and L5. He denied any bowel or bladder changes, numbness, tingling, or weakness in his lower extremities. He declined full physical examination because of pain. He walked without an antalgic gait with no limp. He had good lumbosacral motion. He was diagnosed with longstanding low back pain with evidence of diffuse degenerative changes throughout his lumbar spine, including bilateral foraminal stenosis and grade 1 anterolisthesis of electromyography (EMG) - documented evidence of a right L5 radiculopathy and bilateral S1 radiculapathies. He complained of "longstanding low back pain" with EMG documented evidence of a sensorimotor polyneuropathy. (See January-February 2004 private treatment records from the Mayo Clinic). He was not a candidate for surgical intervention based on MRI findings. He had received epidurals for the past several years, but they were no longer effective. He was unable to walk long distances due to lower extremity and back pain. He continued to play golf, but had to use a cart. His strength and range of motion were normal. Exterior lateral tilt and rotation were -2. He was independent in his activities of daily living (ADLs). During a March 2005 VA examination, he denied any then current radiation of pain, swelling, weakness, fatigue, instability, and lack of endurance. He walked erect with no limp. He was able to get "on" and "off" the examination table without assistance. He did not use a cane, crutch, walker, brace, or corrective shoes. He had no difficulty with ADLs, including dressing, bathing, toileting, grooming, eating driving, flare-ups, and bladder incontinence. Upon physical examination, there was no evidence of swelling, tenderness, or muscle spasms. He took care of his own personal hygiene, engaged in chores, and ran errands. Palpation at the L5-S1 caused pain that did not radiate into either lower extremity. The range of motion was normal. The Babinski sign was negative (normal). After examination, the examining VA physician's impression was "chronic lumbosacral strain with degenerative disease at L5-S1; examination of the sciatic nerve and central nervous system was essentially normal." During a March 2005 VA mental status examination, the Veteran reported that he could not stand for long periods of time. He described himself as being "very busy." He golfed 3 times per week and spent time taking care of his sister. An August 2005 MRI reflected L2-3 grade 1 anterolisthesis of L3 relative to L2 associated with prominent degenerative disc changes and prominent left lateral hypertrophic spurring. L4-L5 showed grade 1-2 25% anterior spondylolisthesis of L4 relative to L5 also associated with prominent degenerative disc changes and left lateral hypertrophic spurring. There was no significant shift seen during flexion or extension. There was extensive degenerative facet joint changes throughout the mid and lower lumbar spine. L5-S1 showed moderate degenerative disc changes. There was prominent lateral hypertrophic spurring at L1-2, including the left side. There was no significant lumbar vertebral compression deformity, and atherosclerotic aortic calcifications. A March 2006 computed tomography (CT) scan showed severe multilevel DDD and posterior element spondyloarthropathy and grade 1 anterolisthesis of L4 on L5 with associated bilateral foraminal narrowing. In August 2008, the Veteran's private physician, Dr. D. S., indicated the Veteran suffered from debilitating DDD of the lumbosacral spine with spinal stenosis. He had had multiple interventions, both surgical and non-surgical, to deal with pain and disability. He had significant neuropathic pain that was related to structural degeneration of his lumbar spine. This doctor indicated the Veteran's low back disability had an impact on his employability. A February 2009 X-ray showed considerable narrowing of the L2-L3, L4 and L5-S1 disc spaces. A February 2009 VA examination noted difficulty with balance. The Veteran could, at most, walk a half a block. Upon physical examination, he appeared chronically ill. He used a wheelchair, but was able to rise on his own. He lost his balance once. Forward flexion was to 90 degrees, backward extension to 30 degrees, left and right lateral flexion to 30 degrees, rotation to 40 degrees bilaterally, with zero Waddell signs. After three repetitions of range of motion, forward flexion was to 60 degrees, backward extension to 30 degrees, left and right lateral flexion to 30 degrees and rotation to 40 degrees bilaterally. Straight leg raising was negative. There were bilateral muscle spasms. There was 4/5 strength of leg muscles except for the right foot dorsiflexors. The Veteran was diagnosed with DDD of the lumbar spine; history of spinal stenosis, and disk disease and bilateral paralysis of the external popliteal nerve. The VA examiner concluded the Veteran was at the time still incapable of gainful employment, including sedentary employment, and that he therefore would not be accepted into the VA vocational rehabilitation program. A December 2009 VA examination reflected no history of urinary incontinence, urgency, retention, frequency, nocturia, fecal incontinence, erectile dysfunction, but there was numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. There was a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain. The Veteran reported severe pain that lasted minutes 1 to 6 days per week. He had no flare-ups or incapacitating episodes. He was unable to walk more than a few yards. He had a noticeable limp and kyphosis. There was no ankylosis or objective abnormality of thoracic sacrospinalis. Forward flexion was from 0 to 105 degrees; backward extension was from 0 to 5 degrees; left lateral flexion was from 0 to 5 degrees; left lateral rotation was from 0 to 15 degrees; right lateral flexion was from 0 to 15 degrees; and right lateral rotation was from 0 to 15 degrees. There was objective evidence of pain with active range of motion, but there was no objective evidence of pain following repetitive motion. The examiner was unable to test whether there was additional limitation after three repetitions of range of motion because the Veteran was unsteady on his feet and further testing would not have been safe. The diagnosis was chronic lumbar back strain with advanced degenerative changes and right foot drop. There were severe effects on ADLs because he could not walk or stand for more than a few minutes. A November 2012 Disability Benefits Questionnaire (DBQ) noted that the range of motion for forward flexion was from 0 to 50 degrees with pain at 40 degrees; extension from 0 to 10 degrees with pain at 5 degrees; left lateral flexion from 0 to 25 degrees with pain at 20 degrees; and right and left lateral rotation from 0 to 25 degrees with pain at 20 degrees. There were no flare-ups. However, the Veteran had additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. There was less movement than normal, pain on movement, instability of station, disturbance of locomotion and interference with sitting, standing ,and/or weight-bearing. The examiner noted abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. There was guarding and muscle spasms with no abnormal gait or spinal contour. The Veteran was diagnosed with IVDS, but with no incapacitating episodes over the past 12 months. He used a wheelchair and a brace. This collective body of evidence does not support the assignment of a rating higher than 20 percent at any time since the filing of this claim, but does show the Veteran has been entitled to this 20 percent rating since the filing of this claim on January 28, 2005 (so not just since his most recent VA compensation examination on November 7, 2012). There is no suggestion his low back disability has limited his forward flexion to 30 degrees or less, even when considering the effect of his pain on his range of motion, or that he has favorable ankylosis of his entire thoracolumbar spine so as to support assigning the next higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Rather, forward flexion, at worst, has been limited to 40 degrees when considering the effect of his pain. Although he could forward flex to slightly greater, to 50 degrees, he started experiencing pain at 40 degrees, so, for all intents and purposes, that in effect was his range of motion (to 40 degrees versus to 50 degrees) since VA adjudicators must factor in the effect of his pain on his range of motion. (See November 2012 DBQ report). So while the evidence confirms he has painful motion, which in turn reduces his range of motion, it does not reduce it sufficiently to allow for assigning a rating higher than 20 percent under the General Rating Formula for Diseases and Injuries of the Spine found at 38 C.F.R. § 4.71a, DCs 5235-42. See Mitchell, 25 Vet. App. at 38-43. There equally is no evidence of incapacitating episodes on account of the IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months so as to support assigning the next higher 40 percent rating under the Formula for Rating IVDS Based on Incapacitating Episodes. (See March 2005, February 2009, December 2009, and November 2012 VA examination reports). The most recent November 2012 DBQ examination also noted there were no other neurologic abnormalities or findings related to the low back disability such as bowel or bladder problems/pathologic reflexes). Thus, there are no other residuals aside from the bilateral lower extremity peripheral neuropathy that would warrant a separate rating. He already has been awarded separate ratings for this associated bilateral lower extremity peripheral neuropathy under 38 C.F.R. § 4.124a, DC 8520, and he has expressed his satisfaction with the level of these separate ratings, hence, the reason these other claims are being concurrently dismissed in this decision. Also keep in mind that, to the extent this low back disability contributes to his unemployability, he already has a TDIU to compensate him for this. He has had a TDIU effectively since February 9, 2009. This low back disability has not been more than 20-percent disabling since receipt of this claim on January 28, 2005, so the Board cannot "stage" the rating for this disability because this represents his greatest level of functional impairment attributable to this condition since that date. Fenderson, supra. But in consideration of all of the competent and credible evidence, so including both the medical and lay evidence, and when resolving all reasonable doubt in his favor, the Board finds that he is entitled to a higher initial rating of 20 percent for his low back disability retroactively effective from the filing of this claim on January 28, 2005 (i.e., for the entire period of time covered by this appeal), so not just instead since his most recent VA compensation (DBQ) examination on November 7, 2012. However, he has never since the filing of this claim met the requirements for a schedular rating higher than 20 percent, so in this respect his appeal is denied. Extra-schedular consideration In exceptional situations, an extra-schedular rating may be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Here, though, the Veteran's symptoms exhibited include pain, limitation of motion, and weakness, which are contemplated by the regular schedular rating criteria (i.e., by 38 C.F.R. §§ 4.40, 4.45, 4.59 and 4.71a, DCs 5235-5243). Moreover, his TDIU contemplates the effect of this service-connected disability and his others in combination on his employability. The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable."). So the mere fact that it already has been determined he is entirely unemployable, and under 38 C.F.R. § 4.16(a) rather than § 4.16(b) no less, meaning entirely incapable of obtaining and maintaining employment of any sort (physically demanding or even sedentary) that would be considered substantially gainful versus just marginal in comparison, is itself concession that he has even greater than the marked interference with employment required for an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Moreover, most of the evaluation and treatment he has received for his low back disability has been on an outpatient basis, not as an inpatient, certainly not frequent inpatient. So even if he managed to satisfy the first prong of the Thun analysis, he still does not satisfy the second prong. Therefore, referral for consideration of an extra-schedular rating is not warranted for this claim. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim for an initial disability rating higher than 10 percent for the associated peripheral neuropathy of the right lower extremity with foot drop from January 28, 2005 to February 8, 2009, and to a rating higher than 40 percent since February 9, 2009 is dismissed. The claim for an initial disability rating higher than 10 percent for the associated peripheral neuropathy of the left lower extremity from January 28, 2005 to February 8, 2009, to a rating higher than 20 percent from February 9, 2009 to November 6, 2012, and to a rating higher than 40 percent since November 7, 2012 also is dismissed. However, a higher initial rating of 20 percent is granted for the DDD of the lumbar spine retroactively effective from January 28, 2005 (so not just, instead, as of November 7, 2012), subject to the statutes and regulations governing the payment of VA compensation. A rating higher than 20 percent for the DDD of the lumbar spine, however, at all times since January 28, 2005, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs