Citation Nr: 1315401 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 06-26 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased rating for a lumbar strain with degenerative joint disease rated as 20 percent disabling prior to February 10, 2012, and as 40 percent disabling thereafter. 2. Whether the severance of a separate 10 percent rating for degenerative joint disease of the lumbar spine was proper. 3. Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 and December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that continued a 20 percent rating for a lumbar strain with degenerative disc disease and severed service connection for degenerative joint disease of the lumbar spine, effective March 1, 2006. In June 2010, the Board denied the issue of entitlement to an increased rating for a lumbar spine disability. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). The decision was vacated and remanded by the Court to the Board in order to comply with the January 2011 Joint Motion for Remand (Joint Motion). In September 2011, the claim was remanded for additional development. In a June 2012 rating decision, the RO increased the rating for a lumbar spine disability from 20 to 40 percent disabling, effective February 10, 2012. FINDINGS OF FACT 1. In May 2001, the RO granted service connection for degenerative joint disease of the lumbar spine secondary to the already service-connected lumbosacral strain, and assigned a 10 percent rating. The RO left intact the 20 percent rating for a lumbosacral strain. 2. In December 2005, after giving the Veteran proper notice, the RO severed service connection for degenerative joint disease of the lumbar spine and rephrased the already in effect 20 percent rating to include both his lumbosacral strain and his degenerative joint disease of the lumbar spine, effective March 1, 2006. 3. The March 1, 2006 severance of service connection for degenerative joint disease of the lumbar spine was proper, because the facts on which the award was granted are clearly and unmistakably erroneous based on the evidence of record, and such facts are undebatable in the record. 4. Prior to February 10, 2012, the competent and credible evidence demonstrates that the Veteran's lumbar spine disability was not manifested by forward flexion less than 30 degrees or favorable ankylosis. It was not been productive of incapacitating episodes, and neurological manifestations of the lower extremities was not shown. 5. Since February 10, 2012, the Veteran's lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. Incapacitating episodes or neurological manifestations of the lower extremities related to the lumbar spine disability have not been shown. 6. The service-connected lumbar spine disability has not caused or aggravated a right lower extremity disability, claimed as neuropathy and pain throughout the right lower extremity. CONCLUSIONS OF LAW 1. The severance of the award for service connection for degenerative joint disease of the lumbar spine was proper. 38 U.S.C.A. §§ 105, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.105(d), 3.301 (2012). 2. Prior to February 10, 2012, the criteria for a rating in excess of 20 percent for a lumbar spine disability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5010, 5237 (2012). 3. Since February 10, 2012, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5010, 5237 (2012). 4. A right leg disability was not caused or aggravated by the service-connected lumbar spine disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. With regard to the claim for increased rating for a lumbar spine disability and for service connection for a right leg disorder, a November 2004 letter, sent prior to the initial unfavorable AOJ decision issued in February 2005, advised the Veteran of the evidence and information necessary to substantiate his claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, a May 2006 letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the May 2006 letter was issued after the initial rating decision, the United States Court of Appeals for the Federal Circuit has held that VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter. Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006). The Court clarified that the issuance of a statement of the case could constitute a readjudication of the Veteran's claim. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). In the instant case, after the May 2006 letter was issued, the Veteran's claims were readjudicated in multiple supplemental statements of the case, most recently in June 2012. Therefore, any defect with respect to the timing of the VCAA notice has been cured. With regard to the claim for restoration of service connection for degenerative joint disease of the lumbar spine, in a February 2005 rating decision, the RO found that service connection for degenerative joint disease of the lumbar spine was clearly and erroneously granted as the Veteran was already in receipt of service connection for the same disability with a higher rating. The RO notified the Veteran of the proposed severance of service connection in February 2005 and advised him that he had 60 days to submit argument in support of continued service connection. The Veteran submitted no additional evidence and the RO, in a December 2005 rating decision, severed service connection, effective March 1, 2006. Thus, the RO complied with the procedural requirements for severance provided under 38 CFR § 3.105. Relevant to the duty to assist, the Veteran's service treatment records and VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. The Veteran was provided with VA examinations in December 2004, June 2005, November 2009, and February 2012. In reviewing the examinations, the Board finds that they, as a whole, adequately addressed the criteria necessary to adjudicate the claims. The Board notes that the Veteran's claims were remanded in September 2011 in order to afford him with a new VA examination and issue a statement of the case with regard to the claim for service connection for a right leg disorder and for severance of service connection for degenerative joint disease of the lumbar spine. As such directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Severance Service connection may be severed only where evidence establishes that it is clearly and unmistakably erroneous, the burden of proof being upon the Government. 38 C.F.R. § 3.105(d) (2012). In Graves v. Brown, 6 Vet. App. 166 (1994), the Court described the high burden of proof required for a showing of clear and unmistakable error by reiterating the definition it has provided for clear and unmistakable error in relevant case law. In order for there to be "clear and unmistakable error" under 38 C.F.R. § 3.105(d), there must have been an error in the prior adjudication of the claim. See Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). . . ". It must always be remembered that [clear and unmistakable error] is a very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error". Fugo v. Brown, 6 Vet. App. 40, 43 [1993]. Errors that are 'clear and unmistakable' are undebatable; that is, reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Id. A determination that there was a 'clear and unmistakable error' must be based on the record and the law that existed at the time of the prior decision of the agency of original jurisdiction or BVA, and subsequently developed evidence is not applicable. Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Graves, 6 Vet. App. at 170-71. When severance of service connection is considered warranted, a rating action proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at the latest address of record and furnished with detailed reasons for the contemplated action and given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided, if additional evidence is not received within 60 days, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 CFR § 3.105. Here, as discussed above, proper notice was provided to the Veteran at the time of the proposal of severance in February 2005. By way of history, in March 1977, the Veteran was granted service connection for a lumbosacral strain and assigned a noncompensable rating. In January 1991, that rating was increased to 10 percent. In May 2001, that rating was increased to 20 percent. At the same time, the RO granted a separate rating for degenerative joint disease of the lumbar spine as secondary to the lumbosacral strain, granting a separate 10 percent rating. Thus, two separate ratings for the lumbosacral spine disability were then in effect. In February 2005, the RO proposed to sever service connection for degenerative joint disease of the lumbar spine, stating that service connection for that condition was a clear and unmistakable error. The RO explained that service connection for two disabilities based upon the same rating criteria was not allowed, and service connection was already in effect for the Veteran's lumbosacral strain. In December 2005, service connection for degenerative joint disease of the lumbar spine was severed, effective March 1, 2006. The Board finds that such severance was proper because it was clearly and unmistakably erroneous to have granted the Veteran separate service connection for degenerative joint disease of the lumbar spine when he was already in receipt of service connection for a lumbosacral strain. For, both disabilities are rated under 38 C.F.R. § 4.71a, and only one rating is appropriate under that criteria for a lumbosacral strain with degenerative joint disease. Because the Veteran was already rated under a diagnostic code that contemplated limitation of motion of the spine, a separate rating under Diagnostic Code 5010, which pertains to degenerative joint disease, was not appropriate. See 38 C.F.R. § 4.71a, DC 5010 (2012). Such action would amount to impermissible pyramiding. 38 C.F.R. § 4.14 (2012). Instead, the Veteran's lumbar spine disability is to be rated under the highest rating available under the spinal criteria. At the time, that rating was 20 percent under the criteria pertaining to limitation of motion of the spine, or DC 5237. Accordingly, the Board finds that in light of the laws and regulations pertaining to pyramiding and evaluation of the spine, the error of granting service connection for degenerative joint disease of the spine and evaluating that disability separately from the already service-connected lumbosacral strain is a clear and unmistakable error, in that is undebatable, and reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Thus, severance of service connection for degenerative joint disease as a separate disability was proper. Increased Rating and Service Connection for a Right Leg Condition Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon 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 the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2012). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2012). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 (2012), however, should only be considered in conjunction with the diagnostic codes 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). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the wrist is considered a major joint. 38 C.F.R. § 4.45 (2012). Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each group of minor joints so affected. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2012). Diagnostic Code 5010, for rating traumatic arthritis, directs that the evaluation of arthritis be conducted under DC 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003, 5010 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2012). In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003, Note 1 (2012). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6(2012). The Veteran's lumbar spine disability (lumbar strain with degenerative joint disease) has been rated 20 percent disabling under Diagnostic Code 5237, which contemplates lumbar strain. DC 5242, which pertains to degenerative arthritis, 5238, which pertains to spinal stenosis, and DC 5243, which pertains to intervertebral disc syndrome, are also applicable. 38 C.F.R. § 4.71a, DC 5242, 5238, 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait pattern or spine contour such as scoliosis, reverse lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the lumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). Turning to the evidence of record, VA treatment records reflect that in October 2004, the Veteran reported having pain in the right leg since around 2000. His right leg was tender. Physical examination showed that he walked in a spastic character. There was normal lumbar curvature. There was no paraspinal spasm, but there was tenderness over the sacroiliac area. There was reduced sensation to pin prick in the right leg and foot and other lower extremity neurological abnormalities. An October 2004 MRI showed some mild degenerative desiccation and bulging of the L4-5 disc resulting in very mild narrowing of the neural foramina, bilaterally. On December 2004 VA examination, the Veteran reported intermittent constipation that was suspected to stem from the lumbar spine due to lowered hyperreflexia, however, on examination the body was hyperflexive. The Veteran reported having radiculopathic symptoms, however, a note reviewed from the Veteran's neurosurgeon stated that those symptoms did not appear to be from the spinal column. The Veteran reported pain in the entire right leg, which did not follow specific dermatomes. He reported severe, constant low back pain. He used a cane and could walk one to three miles, which the Veteran later stated was meant to document one to three blocks. He denied urinary symptoms. He reported erectile dysfunction that the examiner stated was most likely not related to his lumbar spine disability because he did not have classic symptoms to relate the two conditions. Examination was the spine was normal. His gait was antalgic. There was mild lumbar flattening. Forward flexion was to 13 degrees, extension was to 0 degrees, left lateral flexion was to 3 degrees, right lateral flexion was to 11 degrees, left lateral rotation was to 15 degrees, and right lateral rotation was to 6 degrees. Repetitive testing showed flexion and extension to 0 degrees. Decreased range of motion on examination was very limited and was contrary to the passive versus active range of motion. The Veteran was able to bend over and tie his shoes at the conclusion of the examination, which wouldn't be expected given how limited his range of motion was on examination. Guarding and displays of pain were disproportionate to the previous examinations and expected symptoms. Malingering was suspected. Neurological examination showed decreased sensation in the right lower extremity. The examiner stated that the Veteran's degeneration of the spine was consistent with aging. There was no objective evidence of a spinal nerve or disc condition, upon review of the claims file, that would cause radiculopathy. Thus, his low back disability did not appear to be causing his right leg problems. The Veteran has submitted records from his employer dated beginning in 2005 to demonstrate that he took one day of leave each week under the Family and Medical Leave Act. The Veteran states that such was the case due to his low back disability, however, he did not appear for an FMLA follow-up examination from his employer to verify his need, and the FMLA application, as well as the records in the claims file, document a severe nonservice-connected cervical spine disability with myelopathy from which the Veteran also suffers. Thus, the Board cannot deduce that these leave records were due to his lumbar spine disability. Private treatment records reflect that in February 2005, a nerve conduction study diagnosed sensory peripheral neuropathy of the right lower extremity, but no indication of lumbar radiculopathy or peripheral nerve compression. His back pain could be related to piriformis syndrome. An accompanying record diagnosed right lumbar radiculopathy versus severe piriformis syndrome. VA treatment records reflect that in February 2005, the Veteran underwent MRI of the cervical spine for symptoms of urinary urgency, numbness in his lower thoracic dermatomes, and right leg weakness. There had been an unremarkable MRI of the thoracic and lumbar spine. There was disc herniation at C3-4, with only mild disease seen elsewhere. A March 2005 EMG diagnosed no neuropathic or myopathic signs related to the lumbar dermatomes, leaving instead the diagnosis of piriformis syndrome. He was instructed on stretching exercises for that condition. On March 2005 examination, the Veteran was able to walk without any assistive device and had no guarding. However, range of motion of the lumbar spine was markedly decreased in all motions. On supine motion, motion was only minimally decreased. On June 2005 VA examination, the Veteran reported pain in the low back that radiated to his right leg. He took pain relievers, used heat therapy, and completed stretching exercises for relief. He denied any urinary or bowel symptoms related to his low back. He had constant, severe back pain. He had no limitation when walking. He had not had any incapacitating episodes. Inspection of the spine was normal. He had a normal gait. Range of motion testing showed forward flexion to 40 degrees, extension to 30 degrees, left lateral flexion to 8 degrees, right lateral flexion to 11 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 5 degrees. There was no additional loss of motion on repetitive testing. Sensory examination showed a decrease at the right lower extremity. The examiner stated that physical examination was invalid because there was tenderness to light palpation at the low back and not in areas documented in the VA treatment records. Areas of tenderness in the back were at the mid back and not the low back. While he described radiculopathy, the weakness noted was throughout the right leg and did not follow a dermatome pattern. There Veteran put forth varying effort. When the examiner tested strength with his palm he reported pain. Measuring the calf with a tape measure caused pain. Range of motion was severely decreased, showing that there was right rotation to only 15 degrees, but then a display of right rotation to 40 degrees when the Veteran jumped up and spinned around due to pain. The degree of symptoms expressed were not in congruence with the normal gait, his well-developed musculature, and the ease of movement when he was not being tested. The Veteran was found to be malingering. No changes since the last examination could be diagnosed because of malingering. VA treatment records demonstrate that in July 2005, the Veteran was noted to have persistent back pain and also a cervical spine disability that was so severe it necessitated surgery. It was noted that the Veteran had piriformis syndrome and injections were suggested as treatment for pain relief. In November 2005, the Veteran was diagnosed with lumbar radiculopathy. However, neurological examination was normal. In July 2006, the Veteran submitted lay statement from his family and friends attesting to the severity of his back pain and pain that traveled down his right leg. VA treatment records reflect that in January 2007, neurosurgery consultation noted that no definitive cause of his right leg pain had been found. There had been findings of piriformis syndrome, as well as C3-4 disc herniation with cord compromise. There was also the opinion that an MRI had shown foramenal encroachment at L4-5 which could account for the right leg symptoms. Examination showed a normal lumbar curve. There was no paraspinal spasm, but there was marked tenderness in the lower lumbar area and essentially 0 degrees flexion and extension without pain. Following neurological examination, his right leg pain remained of unknown etiology. In July 2007, the Veteran reported trouble urinating and it was concluded that he most likely suffered from a probable stricture, however, he declined further testing. In February 2008, he denied any bowel or bladder problems. In June 2008, the Veteran was assessed to have severe pain and could not stand continuously. Thus, it was stated that he should be allowed to have breaks at work every five to ten minutes. On November 2009 VA examination, the Veteran reported having chiropractic care for his low back and also taking pain medication. He was experiencing different types of pain throughout the right leg that felt like it was radiating from the low back. He reported urinary urgency, as well as numbness, paresthesias, and weakness of the right foot. The examiner stated that these symptoms were unrelated to his claim but were rather related to aging and a urethral stricture. There was only minimal lumbar narrowing. He reported fatigue, stiffness, weakness, spasms, and pain on motion of the spine. There was no history of incapacitating episodes. He stated that he could not walk for more than a few yards. There was kyphosis of the spine. There was spasm on the right side, as well as pain with motion and tenderness on both sides of the sacrospinalis. Forward flexion was to 45 degrees, extension was to 15 degrees, left lateral flexion was to 30 degrees, right lateral flexion was to 25 degrees, and right and left lateral rotation was to 30 degrees. There was evidence of pain on motion. There was no evidence of additional limitation on repetitive testing. Waddell's sign was negative. There was evidence of involuntary clonis spasms of the left and right thigh muscles. There was positive pain in the buttocks significant for piriformis. The Veteran reported that he retired in 2008 because he was eligible. The diagnosis was lumbosacral strain with degenerative joint disease and minimal narrowing at S-1. He also had piriformis muscle syndrome. The examiner stated that after thorough review of the claims file, it was evident that the Veteran's right lower extremity problems were due to piriformis syndrome and not to his lumbar spine disability, as studies of the lumbar spine did not show a cause for the reported right leg pain. VA treatment records reflect that in November 2010, the Veteran complained of ongoing back pain and sciatica. On physical examination, forward flexion of the spine was "near complete." On February 2012 VA examination, the Veteran reported that all motions aggravated his low back pain. The pain was sharp. A TENS unit helped. He had continual throbbing in the right leg. At times his back pain was so uncomfortable that he limited his activity to toileting, eating, and getting up to take medications. That could last for several days. Range of motion testing showed forward flexion to 30 degrees, with pain at 20 degrees, extension to 20 degrees, with pain at 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees, with pain. On repetition, forward flexion was to 30 degrees. There was no additional limitation of function on repetitive testing, other than less movement than normal, pain, and interference with sitting or standing. There was localized tenderness. Muscle strength was normal in both lower extremities. Reflexes were decreased on the right side. Straight leg raising was negative, bilaterally. There was no sign or symptom of radicular pain. There were no neurologic abnormalities related to the lumbar spine disability. There was no indication of intervertebral disc syndrome and thus, no indication of incapacitating episodes. A nerve conduction study was normal in both legs. An EMG was normal in the right leg. The lumbar spine disability had an impact on the Veteran's ability to work in that it was difficult to lift or sit or stand for prolonged periods of time. 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. In this case, the Board finds that prior to February 10, 2012, the Veteran was not entitled to a rating higher than 20 percent based upon range of motion testing. Although severely limited range of motion was shown on VA examinations in December 2004 and June 2005, both VA examiners determined that such findings were unreliable because of the effort put forth by the Veteran, the inconsistencies of the reported pain, his observed ability to move his spine when not being tested, and the difference in degree of disability when compared to his gait, x-rays, and general musculature. He was therefore considered to be malingering on both occasions. The Board has no reason to doubt the validity of the VA examiners' findings in this regard as those findings are within their medical purview and expertise. Thus, in light of the Veteran's lack of credibility on examination, the Board cannot use those range of motion findings to increase his rating from 20 to 40 percent. There are similar findings in the VA treatment records, and there too, there was indication that the Veteran was exaggerating limitation of motion. Accordingly, a 40 percent rating, or indication of range of motion less than 30 percent or ankylosis, is not demonstrated during that time. This assessment comports with the 2009 VA examination, when the Veteran was able to forward flex to 45 degrees. For, on that examination, Waddell's sign was negative, indicating greater credibility. The Board therefore will place greater weight on the 2009 VA examination which fits within the 20 percent rating criteria, only. No indication of ankylosis was shown. And, since February 10, 2010, a rating in excess of 40 percent is not warranted. Simply, unfavorable anklyosis of the entire spine has not been shown on VA examination or in the treatment records. The Board next turns to the question of whether the Veteran is entitled to higher ratings based upon the diagnostic criteria pertaining to intervertebral disc syndrome (IDS), which is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an increased rating of 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks during the past 12 months. An increased rating of 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring 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 (2012). In this case, although the Veteran reported on VA examination that he had experienced flare-ups, and stated to the Board that his back pain incapacitated him such that he could not attend work, there is no evidence of any incapacitating episodes as defined by VA regulation during the appeal period. Because there is no evidence that the Veteran's physician has prescribed bed rest for at least four weeks in any given year under appeal, the Board accordingly finds that there is no evidence indicating that that the Veteran's reported low back flare-ups resulted in incapacitating episodes under the criteria set forth in the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes sufficient to warrant a higher ratings based upon incapacitating episodes. Next, in rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (2012). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2012). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. In this case, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right lower extremity disability is related to, caused or aggravated by, his lumbar spine disability. The opinion of the VA examiners is unanimous that the Veteran's right lower extremity symptoms, which have been affirmatively tied to a diagnosis of piriformis syndrome, are not related to his lumbar spine disability. Those opinions are based upon numerous medical studies, including EMG, nerve conduction, MRI, and x-rays, as well as physical examination. The Veteran's right leg symptoms are not shown to follow the dermatome pattern to suggest lumbar radiculopathy. The Board notes that the records in the file that demonstrate a diagnosis of lumbar radiculopathy lack sound medical basis, as they are all unaccompanied by neurological findings and studies such as those relied upon by the VA examiners. Therefore, despite the Veteran's, his families, and his friends lay statements relating the right leg symptoms with his lumbar spine, the medical opinions in this case clearly agree that the right leg disability is of a different, unrelated etiology than the lumbar spine disability. Although one neurologist in a VA consult note thought the symptoms were perhaps related to the lumbar spine disability, that opinion appears speculative to the Board. More significantly, it is not in agreement with the otherwise unanimous opinion finding against that theory. In so finding, the Board notes that although the Veteran is competent to state his symptoms of right leg pain appearing to stem from the low back, little probative value is assigned to those observations as the Veteran is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Such is the case in the immediate instance. Accordingly, a separate rating for neurological manifestations of the right lower extremity is not warranted. Nor is a separate rating warranted for neurological symptoms of the left lower extremity, as none have been reported or shown on VA examination or in the treatment records. And, because of the way this appeal has been framed on the title page, the Board will further find that service connection for a right leg disability must be denied. For, not only does the evidence weigh against a finding that the lumbar spine disability caused or aggravated the right leg disability, but there is absolutely no indication that the right leg disability is related to the Veteran's service on a direct basis. See 38 C.F.R. § 3.303, 3.310 (2012). Lastly, the Board finds that although the Veteran has stated at various times that he believes he suffers from bladder and bowel problems related to this lumbar spine disability, those contentions are also unsupported by the medical evidence. For one, his bladder symptoms have been related to a urethral stricture. Then, his bowel problems did not comport with a lumbar etiology on December 2004 VA examination. Thus, no objective medical opinion relates his bladder and bowel symptoms to his lumbar spine disability. The Board has determined that the Veteran is entitled to no more than a 20 percent disability rating prior to February 10, 2012, and a 40 percent rating thereafter, for a lumbar spine disability under the applicable spinal criteria. The Board is required to consider the effect of pain and weakness when rating a service-connected disability on the basis of limitation of motion. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the effect of pain and weakness on the basis of limitation of motion has been considered because although VA examinations and treatment records have shown that the Veteran experiences pain on motion and flare-ups on activity, there is no evidence to suggest that the functional loss is the equivalent to the next higher rating. Evidence of pain is an important factor for consideration. However, the United States Court of Appeals for Veterans Claims (Court) has held that "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, No. 09-2169 (U.S. Vet. App. Aug. 23, 2011). Without any evidence of further functional loss as a result of the Veteran's pain, a higher disability evaluation is not warranted under DeLuca. Thus, the Board has considered the Veteran's complaints of pain, as well as all evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, in determining that the preponderance of the evidence is against the Veteran's claim of entitlement to a higher ratings based upon additional pain or weakness on repetitive testing. III. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran has not stated that his lumbar spine disability prevents him from working. Rather, the evidence demonstrates that he retired based upon age and time worked, and that prior to retirement, he was able to maintain employment with concessions. Thus, a claim for TDIU has not been raised. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbar spine disability with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms that are not addressed by the rating schedule. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's lumbar spine disability may interfere with employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that throughout the pendency of the appeal, a 20 percent disability rating prior to February 10, 2012, and a 40 percent rating thereafter, for a lumbar spine disability, is not met. Also, the weight of the credible evidence weighs heavily against a finding that the right leg disability was caused or aggravated by the lumbar spine disability. Because the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The March 2006 severance of a separate 10 percent rating for degenerative joint disease of the lumbar spine was proper. Prior to February 10, 2012, a rating in excess of 20 percent for a low back disability is denied. Since February 10, 2012, a rating in excess of 40 percent for a low back disability is denied. Service connection for a right leg condition is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs