Citation Nr: 1315416 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-14 815 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher rating for degenerative arthrosis of the cervical spine, rated as 10 percent disabling prior to April 22, 2009, and as 20 percent disabling thereafter. 2. Entitlement to a higher rating for degenerative arthrosis of the lumbar spine, rated as 10 percent disabling prior to April 22, 2009, and as 20 percent disabling thereafter. 3. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active service for more than 20 years prior to his retirement in August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied the Veteran's claims for increase. In addition, in an April 2011 rating decision, the RO granted the Veteran increased ratings, to 20 percent, for his service-connected degenerative arthrosis of the cervical and lumbar spines, effective April 22, 2009. The Board further notes that in the April 2011 rating decision, the RO awarded a separate 20 percent disability rating for radiculopathy of the left lower extremity as part of the previously service-connected degenerative arthrosis of the lumbar spine. When rating a spinal disability under 38 C.F.R. § 4.71a, resulting compensably disabling neurologic impairments must also be addressed as part of the same claim for a higher rating. Nevertheless, the radiculopathy issue has not been addressed in any supplemental statement of the case following the April 2011 rating decision. Because the claims that were originally appealed to the Board included an increased disability rating for degenerative arthrosis of the lumbar spine, and because the RO awarded a separate disability rating for left lower extremity radiculopathy pursuant to that claim, the question of whether a higher rating should now be assigned for left lower extremity radiculopathy remains on appeal. Given that this issue has not been addressed by the RO in a supplemental statement of the case, a remand is required. FINDINGS OF FACT 1. For the period prior to April 22, 2009, the degenerative arthrosis of the cervical spine has been manifested by flexion of the cervical spine to 15 degrees; ankylosis of the spine and incapacitating episodes requiring prescribed bed rest and treatment of at least four weeks have not been shown. 2. For the period from April 22, 2009, the degenerative arthrosis of the cervical spine has been manifested by flexion of the cervical spine to 30 degrees; ankylosis of the spine and incapacitating episodes requiring prescribed bed rest and treatment of at least four weeks have not been shown. 3. For the period prior to April 22, 2009, the degenerative arthrosis of the lumbar spine was manifested by forward flexion of the lumbar spine limited to no worse than 65 degrees with pain on motion; ankylosis of the spine and incapacitating episodes requiring prescribed bed rest and treatment of at least two weeks were not shown. 4. For the period from April 22, 2009 to September 23, 2010, the degenerative arthrosis of the lumbar spine was manifested by forward flexion of the lumbar spine limited to no worse than 25 degrees without pain; ankylosis of the spine and incapacitating episodes requiring prescribed bed rest and treatment of at least six weeks have not been shown. 5. For the period from September 23, 2010, the degenerative arthrosis of the lumbar spine has been manifested by forward flexion of the lumbar spine limited to no worse than 50 degrees without pain; ankylosis of the spine and incapacitating episodes requiring prescribed bed rest and treatment of at least four weeks have not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent for degenerative arthrosis of the cervical spine have been met prior to April 22, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2012). 2. The criteria for a rating higher than 20 percent for degenerative arthrosis of the cervical spine have not been met from April 22, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242 (2012). 3. The criteria for a rating higher than 10 percent for degenerative arthrosis of the lumbar spine were not met prior to April 22, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). 4. The criteria for a rating of 40 percent for degenerative arthrosis of the lumbar spine have been met from April 22, 2009 to September 23, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). 5. The criteria for a rating higher than 20 for degenerative arthrosis of the lumbar spine have not been met from September 23, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, 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 a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. In February 2007, a VCAA letter was issued to the Veteran with regard to his increased rating claims; this letter predated the August 2007 rating decision. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claims, the information and evidence that must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish an effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. The evidence of record contains the Veteran's VA outpatient and private treatment records and records from the Social Security Administration (SSA). He underwent VA examinations in March 2007 and September 2010 with regard to his cervical and lumbar degenerative arthrosis. The Board finds that such examination reports are thorough and contain sufficient information to decide the increased-rating issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the increased rating issues decided herein. Criteria & Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran is service-connected for degenerative arthrosis of the cervical spine, rated as 10 percent disabling prior to April 22, 2009, and as 20 percent disabling thereafter; and for degenerative arthrosis of the lumbar spine, also rated as 10 percent disabling prior to April 22, 2009, and as 20 percent disabling thereafter. Both disabilities have been rated under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides for the following disability ratings for disorders of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the General Rating Formula for Diseases and Injuries of the Spine, ratings are assigned as follows: 1) 10 percent-Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; 2) 20 percent-Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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; 3) 30 percent-Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 4) 40 percent-Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 5) 50 percent-Unfavorable ankylosis of the entire thoracolumbar spine; and 6) 100 percent-Unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. In addition, intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In addition, Diagnostic Code 5003, for degenerative arthritis, provides 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Relevant medical evidence of record consists of VA medical examinations conducted in March 2007 and September 2010, as well as VA treatment records and records from private treatment providers. Report of the March 2007 examination reflects that the Veteran complained of pain in his neck and low back that radiated into his right shoulder and left leg. No bed rest was reported for the prior year. Physical examination revealed range of motion of the cervical spine of flexion to 15 degrees. The Veteran complained of pain at the endpoint of motion, but no further limitation was noted on repetitive motion testing. No motor or sensory deficit was noted on neurological testing. The Veteran's gait was found to be normal, with moderate spasms of the paraspinous muscles. Range-of-motion testing of the lumbar spine revealed flexion to 65 degrees with pain throughout. No further limitation was noted on repetitive motion testing. No sensory or motor deficits were noted on neurological testing. The examiner diagnosed the Veteran with degenerative arthrosis and spinal stenosis in the cervical and lumbar spine, with mild to moderate functional impairment. At a second VA examination also conducted in March 2007, the Veteran complained of numbness and paresthesias in his left lower extremity. No numbness or weakness in the arms was reported. Muscle strength and sensation testing were normal bilaterally. The examiner noted the Veteran's diagnoses of degenerative disc disease in the cervical and lumbar spine with spondylosis and spondylosis. The examiner specifically noted that the Veteran had "no neurologic deficits related to either the cervical or lumbar spine." The Veteran again underwent VA examination in September 2010. Report of that examination reflects that the Veteran complained of increasing symptoms of pain in his neck and low back and stated that he had undergone two cervical spine surgeries. He stated that his pain was aggravated by turning his head, prolonged sitting, standing, or bending, and working on the computer. He also complained of pain radiating into his left leg. He reported having been prescribed bed rest for a total of one week in the prior year. Range of motion of the Veteran's spine was flexion of the cervical spine to 30 degrees, and flexion of the lumbar spine to 50 degrees. No limitation was noted on repetitive motion testing. The Veteran was noted to have a limping gait and to use a cane. His muscle strength and motor and sensory testing were all normal, with the exception of left motor radiculopathy in the left lower extremity. The examiner diagnosed the Veteran with cervical and lumbar spondylosis and left lower extremity radiculopathy. Records of the Veteran's private and VA treatment reflect that he has received ongoing treatment for his complaints of pain in his neck and low back. In that connection, the Veteran has been seen on an ongoing basis by VA treatment providers for neck and low back problems. He was noted at an October 2006 treatment visit to display a limited range of motion in his neck and back due to pain, although no indication was made of his range of motion in degrees. At a follow-up visit in November 2006, the Veteran was diagnosed with degenerative disc disease in his cervical and lumbar spine; he complained at that time of pain radiating into his upper and lower extremities, but no sensory deficits were noted, and no diagnosis was made of neurological complications. He was noted to have pain on flexion of the lumbar spine in January 2007 as well as radiating pain into his left lower extremity. Similarly, an October 2008 VA treatment record reflects complaints of chronic neck and low back pain with radicular symptoms to the left lower extremity. In November 2008, his VA treatment provider reviewed EMG study of the extremities and found primary sensory polyneuropathy with "no evidence of radiculopathy." Similarly, at a March 2009 neurology consult, the Veteran was found to have generalized peripheral neuropathy, but no radiculopathy was diagnosed. He attempted physical therapy beginning on April 22, 2009, at which time he was noted to have forward flexion of the cervical spine to 30 degrees and of the lumbar spine to 25 degrees. He complained of pain in his neck and back that had worsened over the years, as well as paresthesias in the upper and lower extremities bilaterally. The treatment provided minimal relief. He was prescribed a TENs unit in February 2011, which helped some. Private treatment records reflect that the Veteran underwent cervical surgery in 2008 and again in 2009 to treat what his private physicians diagnosed as degenerative disc disease of the cervical spine. At a treatment visit in December 2007, the Veteran reported "intermittently reoccurring pain" in his cervical and lumbar spine. Treatment records dated in December 2010 document that the Veteran carried a diagnosis of cervical degenerative disc disease with radiculopathy into the right arm, although EMG study conducted in March 2009 was normal in the upper extremities. At a treatment visit in February 2011, he was noted to have a "limited" range of motion of the cervical spine, although no measurement was offered as to the range of motion in degrees. He was also noted to have diminished sensation in the right upper extremity, but no diagnosis was provided for those complaints. Degenerative Arthrosis of the Cervical Spine Service connection is in effect for degenerative arthrosis of the cervical spine, rated as 10 percent disabling prior to April 22, 2009 and as 20 percent disabling thereafter. On May 2, 2008, the Veteran underwent surgery on his cervical spine. In a November 2008 rating decision, the RO assigned a total temporary 100 percent rating pursuant to 38 C.F.R. § 4.30 based on surgical or other treatment necessitating convalescence, effective from May 2, 2008, to August 1, 2008. The Veteran's disability is rated pursuant to Diagnostic Code 5242, pertaining to degenerative arthritis of the spine. Upon review of the relevant evidence, the Board finds that the Veteran's degenerative arthrosis of the cervical spine warrants, with resolution of reasonable doubt in the Veteran's favor, a rating of 30 percent, but no higher, prior to April 22, 2009,. Range-of-motion testing conducted at the Veteran's March 2007 VA examination revealed that the Veteran's forward flexion was limited to 15 degrees. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent disability rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less. However, the Veteran's forward flexion was noted to be improved during physical therapy on April 22, 2009 to 30 degrees without pain. This range of motion was also demonstrated at the September 2010 VA examination. The difference in the limitation of function in the cervical spine was demonstrably different prior to April 22, 2009. While the current limitation of function in the cervical spine does not warrant a higher rating, the criteria for a 30 percent rating were met or approximated prior to then. Thus, with consideration of the Veteran's limitation of forward flexion to 15 degrees at his March 2007 VA examination, a 30 percent rating is warranted for the degenerative arthrosis of the cervical spine at that time. With improvement to 30 degrees by April 22, 2009 and confirmed in September 2010, the Board finds that a rating of no higher than 20 percent is warranted for the degenerative arthrosis of the cervical spine from April 22, 2009. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). The Board acknowledges that the Veteran has, on multiple occasions during the appeal period, complained of pain radiating into his right upper extremity, as well as numbness and paresthesias in his hands. However, the Board finds that no clear diagnosis has been made of radiculopathy in the upper extremities, or of any other neurological disorder secondary to degenerative arthrosis of the cervical spine. In that connection, the Board notes that the March 2007 VA examiner specifically found the Veteran to experience no neurologic deficits secondary to his cervical spine disorder. Similarly, although the Veteran's VA physician initially assigned a diagnosis of cervical radiculopathy in November 2008, further testing at that visit changed the diagnosis to "probable primary sensory polyneuropathy"; the treatment provider ultimately concluded at that time that the Veteran experienced no upper extremity radiculopathy but rather primary peripheral neuropathy. These findings were confirmed in treatment visits in March 2009. Similarly, a private diagnosis of "occasional right arm radiculopathy" in December 2010 was based not on testing or examination, as was the November 2008 VA treatment visit, but solely on the Veteran's own report of his symptoms. This diagnosis was not confirmed. The Board thus finds that no neurological disability of the upper extremities has been shown to be related to the Veteran's service-connected cervical spine disorder at any time during the appeal period. Thus, the Board finds that no separate rating for neurological disability is warranted. The Board is cognizant, as discussed above, that the Veteran has complained of painful motion of his cervical spine. Testing of the Veteran's cervical spine revealed flexion of no worse than 15 degrees on repetitive testing prior to April 22, 2009, and no worse than 30 degrees since that time. In this case, the Board has taken into consideration the Veteran's complaints of pain but finds, in light of the fact that the Veteran is being rated for limitation of motion of the cervical spine under Diagnostic Code 5242, that any such pain and its effect on the Veteran's range of motion is contemplated in the ratings assigned herein. There has been no significant signs of deformity, weakness or other abnormality warranting higher ratings than those assigned. Therefore, the Board simply does not find that higher ratings, based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59, are warranted under the rating criteria. The Board has also considered the degenerative arthrosis of the cervical spine under the rating criteria for intervertebral disc syndrome. However, the evidence does not support a higher rating at any time during the claim period. In that connection, the Board notes that the Veteran reported at his September 2010 VA examination that he experienced incapacitating episodes totaling seven days in the year prior to the examination. No more extensive periods of incapacitation have been noted throughout the appeal period. As such, the Board finds that consideration of the Veteran's degenerative arthrosis of the cervical spine under the rating criteria for intervertebral disc syndrome does not result in higher ratings than those assigned herein. In this case, the evidence of record does not reflect neurological findings resulting in incapacitating episodes of at least two weeks' total duration during any 12-month period during the current appeal. Degenerative Arthrosis of the Lumbar Spine Service connection is in effect for degenerative arthrosis of the lumbar spine, rated as 10 percent disabling prior to April 22, 2009 and as 20 percent disabling thereafter. The Veteran's disability is rated pursuant to Diagnostic Code 5237, pertaining to lumbar strain. Upon review of the relevant evidence, the Board does not find that a rating higher than 10 percent is warranted for the period prior to April 22, 2009, for the Veteran's service-connected degenerative arthrosis of the lumbar spine. In this case, the Board finds that, for the period in question, the Veteran's flexion of the thoracolumbar spine was to no worse than 65 degrees, with pain throughout the range of motion, warranting no higher than the 10 percent rating assigned prior to April 22, 2009. This is so based on consideration of the General Rating Formula for Diseases and Injuries of the Spine. In particular, the Board notes that at the March 2007 VA examination, the Veteran's flexion was found to be to 65 degrees, with pain through the range of motion. Further private and VA treatment records during this time document the Veteran's complaints of low back pain and limitation of motion, but no findings of the Veteran's VA or private physicians suggest a level of disability tantamount to limitation of motion to less than 60 degrees, even when pain on motion is considered. Thus, even with consideration of pain on motion, the Board finds that these findings warrant a rating of no more than the 10 percent assigned prior to April 22, 2009, under the General Rating Formula for Diseases and Injuries of the Spine. In this case, the Board has taken into consideration the Veteran's complaints of pain and limitation of motion and finds, in light of the lack of medical evidence showing greater limitation of motion, that the Veteran's pain and its effect on his range of motion prior to April 22, 2009, was properly contemplated by the 10 percent schedular rating assigned by the RO under Diagnostic Code 5237. The Board further finds that nothing in the record suggests that pain, weakness, or functional loss equates to more than a 10 percent disability rating as considered by Diagnostic Code 5237, even taking into consideration the requirements of 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. at 204-06. The Board thus concludes that, prior to April 22, 2009, a rating higher than the assigned 10 percent is not warranted under Diagnostic Code 5237. For the period from April 22, 2009 to September 23, 2010, the Board finds that the degenerative arthrosis of the lumbar spine warrants, with resolution of reasonable doubt in the Veteran's favor, a rating of 40 percent, but no higher, under the General Rating Formula for Diseases and Injuries of the Spine. In this case, range-of-motion testing conducted at the Veteran's April 22, 2009, visit to a VA physical therapy provider revealed that the Veteran's forward flexion was limited to 25 degrees without pain on motion. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less. However, the Veteran's forward flexion was noted to be improved to 50 degrees without pain at the September 2010 VA examination. Thus, with consideration of the Veteran's limitation of forward flexion to 25 degrees at his April 22, 2009, VA physical therapy visit, the Board finds that a rating of 40 percent is warranted for the degenerative arthrosis of the lumbar spine from April 22, 2009, to September 23, 2010, under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). However, with improvement in flexion of the lumbar spine to 50 degrees in September 23, 2010, the basis for a rating greater than 20 percent from that date are not met. The Board also notes that the Veteran is already in receipt of a separate disability rating for left lower extremity radiculopathy, as discussed in the remand below. No neurological disability of the right lower extremity has been shown at any time during the appeal period, nor has the Veteran contended that he experiences such symptoms in his right lower extremity. Thus, the Board finds that no other separate rating for neurological disability is warranted. The Board is cognizant, as discussed above, that the Veteran has complained of painful motion of his lumbar spine. Testing of the Veteran's lumbar spine revealed flexion of no worse than 65 degrees, with pain on motion, for the period prior to April 22, 2009. No further limitation was noted on repetitive motion. There were spasms of the musculature, but it did not affect gait and there were no other signs of weakness, deformity or other abnormality. At the April 2009 physical therapy appointment, examination revealed flexion to 25 degrees without pain. Flexion of the lumbar spine was to 50 degrees in September 23, 2010, without pain. In this case, the Board has taken into consideration the Veteran's complaints of pain but finds, in light of the fact that the Veteran is being rated for limitation of motion of the lumbar spine under Diagnostic Code 5237, that any such pain and its effect on the Veteran's range of motion is contemplated in the ratings assigned herein. There have been no signs of weakness, deformity or other abnormality warranting higher ratings. Therefore, the Board simply does not find that higher ratings than those assigned herein, based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59, are warranted under the rating criteria. The Board has also considered the degenerative arthrosis of the lumbar spine under the rating criteria for intervertebral disc syndrome. However, the evidence does not support a higher rating at any time during the claim period. In that connection, the Board notes that the Veteran reported at his September 2010 VA examination that he experienced incapacitating episodes totaling seven days in the year prior to the examination. No more extensive periods of incapacitation have been noted throughout the appeal period. As such, the Board finds that consideration of the Veteran's degenerative arthrosis of the lumbar spine under the rating criteria for intervertebral disc syndrome does not result in higher ratings than those assigned herein. In this case, the evidence of record does not reflect neurological findings resulting in incapacitating episodes of at least two weeks' total duration during any 12-month period during the current appeal. Extra-Schedular Rating The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected cervical spine and lumbar spine disabilities is fully contemplated by the rating criteria. There is nothing exceptional about these service-connected disabilities. The degree of disability exhibited by each service-connected disorder is fully contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extra-schedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a disability rating of 30 percent for degenerative arthrosis of the cervical spine for the period prior to April 22, 2009 is allowed, subject to the regulations governing the award of monetary benefits. Entitlement to a disability rating of higher than 20 percent for degenerative arthrosis of the cervical spine for the period from April 22, 2009 is denied. Entitlement to a higher rating than 10 percent for degenerative arthrosis of the lumbar spine for the period prior to April 22, 2009, is denied. Entitlement to a disability rating of 40 percent for degenerative arthrosis of the lumbar spine from April 22, 2009 to September 23, 2010 is allowed, subject to the regulations governing the award of monetary benefits. Entitlement to a higher rating than 20 percent for degenerative arthrosis of the lumbar spine for the period from September 23, 2010 is denied. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the Veteran's claim for a higher rating for radiculopathy of the left lower extremity. As noted in the introduction, the RO issued a rating decision in April 2011 awarding a separate 20 percent disability rating for left lower extremity radiculopathy. The Veteran was also provided a supplemental statement of the case (SSOC) in April 2011, in which the RO denied the Veteran's claims for increase for cervical and lumbar spine disabilities; however, the radiculopathy issue was not addressed. Because the claims that were originally appealed to the Board included an increased disability rating for degenerative arthrosis of the lumbar spine, and because the RO awarded a separate disability rating for left lower extremity radiculopathy pursuant to that claim, the question of whether a higher rating should now be assigned for service-connected radiculopathy of the left lower extremity remains on appeal. When additional evidentiary development is undertaken by the RO on an issue on appeal, an SSOC is required. 38 C.F.R. § 19.31 (2012). After awarding the separate rating in April 2011, the RO did not prepare an SSOC, and no withdrawal of the appeal of these questions was submitted by the Veteran. Consequently, a remand is required so that an SSOC may be issued. In view of the foregoing, the case is REMANDED for the following action: The AOJ must issue an SSOC that specifically addresses the rating for left lower extremity assigned in the April 2011 rating decision, unless the Veteran is satisfied with the 20 percent rating initially assigned. The pertinent rating criteria should be cited and the evidence addressed in the AOJ's analysis. The Veteran should be afforded the appropriate time period for response before the claims file is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs