Citation Nr: 1315684 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 10-47 026A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial evaluation for degenerative disc disease of the lumbar spine, rated as 10 percent disabling prior to July 2, 2009. 2. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine beginning July 2, 2009. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to December 1980. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO). Jurisdiction of the case was subsequently transferred to the RO in Wilmington, Delaware. The Board previously referred a claim for service connection for a stomach disorder, as secondary to service-connected disabilities. There is no indication from review of the claims folder that any action has been taken by the RO on this issue. Given the foregoing, the Board does not have jurisdiction over that claim and it is again referred to the RO for appropriate action. The issue of entitlement to a total disability rating for compensation purposes based on individual unemployability is is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Prior to July 2, 2009, the Veteran's degenerative disc disease of the lumbar spine was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months. 2. Since July 2, 2009, the Veteran's degenerative disc disease of the lumbar spine has not been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or IDS with 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. Prior to July 2, 2009, the criteria for an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). 2. Beginning July 2, 2009, the criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). In this case, the Veteran is disagreeing with the rating assigned for degenerative disc disease of the lumbar spine after service connection has been granted and an initial disability rating and effective date have been assigned. Thus, the service connection claim has been more than substantiated, it has been proven, thereby rendering the statutory notice no longer required because the purpose that the notice is intended to serve has been fulfilled. 38 U.S.C.A. § 5103(a); see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has obtained service treatment records; assisted the Veteran in obtaining evidence, to include VA and private treatment records, records from the Social Security Administration (SSA), and records from the Office of Workers' Compensation Programs (OWCP); afforded the Veteran adequate examinations to determine the severity of his disability; and afforded the Veteran the opportunity to give testimony at a hearing before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. Moreover, VA substantially complied with the Board's July 2011 remand by requesting additional information from the Veteran, scheduling him for a more contemporaneous VA examination, obtaining records from SSA and OWCP, obtaining records from Dr. K., requesting the Veteran's VA vocational rehabilitation folder (and being informed it had been destroyed), and making two attempts to obtain private treatment records from Dr. J. and Dr. G. See 38 C.F.R. § 3.159 (c)(1) (2012); see also D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Rating For Degenerative Disc Disease Of The Lumbar Spine Disability evaluations are based upon the average impairment of earning capacity as determined by a Schedule For Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Separate rating codes identify various disabilities. Id. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2012). Service connection for degenerative disc disease of the lumbar spine was granted by a rating decision dated in April 2009, and a 10 percent evaluation was assigned, effective November 21, 2008. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 20 percent evaluation was assigned by a December 2012 rating decision, effective July 2, 2009. The Veteran contends that he is entitled to increased ratings because he was out of work and in bed between October 2008 and December 2009; was forced to retire 17 years early because of his back, with a substantial reduction in his pension; was unable to get out of bed except for very short periods of time, "sometimes minutes a day;" lost consciousness several times due to severe back pain; underwent surgery in August 2009, with follow up physical therapy; could only work limited hours post-surgery; had to return to bed after even minor activity; and had pain in his back and both legs with prolonged driving. The Veteran and his wife testified in April 2011 that he was out of work. He stated that that any current activities were accompanied by back pain, stiffness, and sweating and he experienced burning of both legs while driving. The Veteran maintained that he had not received any treatment since finishing his post-operative physical therapy and that he took over-the-counter pain medication to diffuse the pain. He also testified that he had difficulty sitting for prolonged periods of time, as well as trouble walking up and down stairs. The testimony indicated his back restricted his ability to carry more than 25 pounds and the ability to work in certain jobs. Disabilities of the lumbar spine, other than intervertebral disc syndrome when evaluated on the basis of incapacitating episodes are under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain, whether or not it radiates, stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). In pertinent part, the General Rating Formula provides a 10 rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided 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. 38 C.F.R. § 4.71a. A 40 percent rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine; and for unfavorable ankylosis of the entire thoracolumbar spine, a 50 percent rating is warranted. For unfavorable ankylosis of entire spine a 100 percent rating is for assignment. Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). 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, Note (2). The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Plate V. Under the criteria governing disabilities of the lumbar spine, intervertebral disc syndrome is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. This formula provides for a rating of 10 percent 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 rating is for assignment for intervertebral disc syndrome, 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 is warranted for intervertebral disc syndrome, 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 is warranted for intervertebral disc syndrome, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). In a December 2008 VA clinical record, the diagnosis was radiculopathy. The Veteran had epidural steroid injections and differential nerve root block. A December 2008 VA pain management note reveals that the Veteran was seen for complaints of pain. He reported episodes of intense back and right leg pain, the pain being in the right hip, anterior thigh, and lateral calf. These intense episodes occurred intermittently, and had been occurring for the past six to seven months. The Veteran reported previously taking Percocet and ibuprofen for the pain, but had run out. He had episodes where he could not get out of bed due to pain. The Veteran reported wearing a lumbar brace. Musculoskeletal examination revealed decreased range of motion of the lumbar spine with decreased spinal mobility of the spine with walking and forward bending/flexion, extension, and lateral flexion. There was myofascial pain, but radicular stretch signs and trigger points were negative. Motor examination revealed normal muscle tone, bulk, and strength and power was 5/5, bilaterally, in all major muscle groups. There was no ankle clonus. The examiner's impression was chronic low back pain, lumbar radiculopathy, extruded disc at L4-5, and degenerative joint disease. A December 2008 right sacroiliac joint x-ray indicated bilateral sacroiliac disease, worse on the right side. A February 2009 private x-ray of the Veteran's lumbosacral spine reveals that the height of vertebral bodies and alignment were maintained. There was evidence of degenerative joint disease at L4 and L5 and disc space narrowing at L4-L5. The remainder of the findings were unremarkable. A February 2009 private treatment record reveals that the Veteran was seen for re-evaluation of his back pain and reported being bedridden since October. He also reported severe pain and numbness in his right leg/hip. A February 2009 VA pain management note reveals complaints of right low back pain, and radiating buttock, hip, and leg pain down to the heel. The Veteran stated that the back pain was worse than leg pain. The Veteran reported popping of the "hip" area, however after pointing to the pain origin, he was actually indicating pain in the sacroiliac joint region. The Veteran also complained of numbness of the right foot. A right sacroiliac joint injection to treat the right buttock and radicular leg symptoms was ordered. A sacroiliac joint x-ray in December 2008 indicated bilateral sacroiliac disease, worse on the right side. The Veteran reported episodes of intense back and right leg pain. The pain was located in the right hip, anterior thigh, and lateral calf. These intense episodes occurred intermittently, and the pain had been occurring for the past six to seven months. The Veteran reported previously taking Percocet and ibuprofen for the pain, but had run out. He had episodes where he could not get out of bed due to pain. The Veteran reported wearing a lumbar brace. Musculoskeletal examination revealed a decreased range of motion of the lumbar spine, with decreased spinal mobility of the spine with walking and forward bending/flexion, extension, and lateral flexion. There was myofascial pain, but radicular stretch signs were negative and trigger point inversion and eversion of the right hip did not produce pain. There was tenderness to palpation over the right sacroiliac joint and Faber's test was positive on the right. Neurological examination revealed somatosensory examinations on the left were all normal. There was no dysthesia, paresthesia, allodynia, hyperalgesia, hyperpathia, summation, and after-sensation to stimulation present. Motor examination revealed normal muscle tone, bulk, and strength; power was 5/5, bilaterally, in all major muscle groups. There was no ankle clonus and no ataxia. Gait was antalgic, with slowed speed. The examiner's impression was chronic low back pain, sacroiliac joint pain, and radicular right leg pain. A February 2009 VA neurology consult note indicates the Veteran was known to neurology because of his chronic back pain and, for the last few years, sciatica radiating down his right leg. In the past few months, symptoms had been quite severe. It was reported that the Veteran always had a burning sensation in the right gluteal region, back of the thigh, anterolateral aspect of the right leg, and dorsum of the foot. This sensation was worse with standing or sitting and was constantly present. The Veteran felt his best when in the supine position, with symptoms disappearing in 30 minutes. Coughing and sneezing caused an increase in symptoms, but bladder control was unchanged. The Veteran walked in without assistive devices and had a difficult time tying and untying his shoelaces. He was able to slowly get on the examination table. No motor weakness in the extensor halluces longus was noted on either side. Stretch reflexes were preserved at the knees and ankles on both sides. Pin sensation was preserved and the Veteran could tell the pin from touch, even in the area with burning sensation. There was tenderness in the right gluteal region and plantars were down. The diagnosis was right lumbar radiculopathy in L5 distribution. This diagnosis was confirmed by electromyograph (EMG). During a March 2009 VA mental disorders examination, the Veteran reported back pain where he has to be on bed rest for as long as four months. In a March 2009 letter to a U.S. Department of Labor claims examiner, he reported that, on average, he spends 23 hours a day in bed. The Veteran underwent a VA joints examination in March 2009, at which time he reported low back/right buttock pain, which he described as burning, with radiation down the anterior aspect of the right leg. Symptoms were constant and severity ranged from a level six up to a nine out of ten on his worst day. Pain was worse with walking and sitting, and better with lying down. The Veteran reported taking ibuprophen as needed, without much relief. He denied flare-ups, weight loss, fever, weakness, bowel or bladder complaints, and erectile dysfunction. The Veteran noted numbness involving the right anterior leg. He reported using a back brace as needed, but denied the use of a cane. He could tolerate walking less than one block and less than five minutes and could tolerate less than five minutes of standing. The Veteran denied falling or back surgery. Physical examination during the March 2009 joints examination revealed an antalgic gait, with no assistive device. There was no obvious asymmetry of the thoracolumbar spine and no spasms, but tenderness to palpation, primarily in the right buttock/gluteus maximus, was noted. Range of motion testing revealed flexion to 70 degrees, extension to 10 degrees, lateral flexion to 20 degrees, bilaterally, and lateral rotation to 15 degrees, bilaterally. The Veteran was only able to tolerate two repetitions and complained of pain throughout range of motion in all planes. The examiner noted that there would be "some" decrease in range with repetition due to pain, but it was not possible to quantify the exact limitation in degrees without resorting to speculation. Sensation was intact to light touch in the bilateral lower extremity and motor strength testing revealed 4+/5 in the right quadriceps. The Veteran complained of pain but otherwise, his lower extremities were 5/5. Muscle strength reflex testing revealed 1+ right patella, 2+ left patella, and symmetrical Achilles. Lasague and Waddle signs were negative. The March 2009 VA examiner reported that there were no incapacitating episodes requiring strict bed rest in the past 12 months. The examiner reported that a February 2009 lumbar spine magnetic resonance imaging (MRI), documented degenerative disc disease from L2-L5 and moderate focal right foraminal zone disc extrusion at L4-L5, which had increased in size since the previous study. It obliterates the right neuroforamen in the area of the exiting right L4 nerve roots. Degenerative changes at L2-L3 were stable. A new, small, focal, left lateral disc protrusion at L2-L3 was noted that contacted the transverse left L3 nerve root in the subarticular zone. The March 2009 VA examiner provided a diagnosis of lumbar radiculopathy. There was MRI evidence of disc extrusion at L4-L5, which extended superiorly and impinged the right L4 nerve root. It was also noted that the MRI documented degenerative disc disease and degenerative joint disease of the lumbar spine. A July 2, 2009 private progress note reveals that the Veteran had weakness on the left side of his back, with slow reflexes. Six views of the lumbar spine obtained that month contained an impression of degenerative changes in the lumbar spine, and suspicion of a T11 compression fracture, age indeterminate. A July 14, 2009 neurological evaluation conducted at Riddle Memorial Hospital revealed strong left lower extremity strength, moderate right lower extremity strength, normal lower extremity tone, bilaterally, intact left lower extremity sensation, and pain, tingling in terms of right lower extremity sensation. The Veteran was admitted to Riddle Memorial Hospital between August 21, 2009, and August 23, 2009, for an L4-5 microdiscectomy, medial facetectomy, foraminotomy, excision of ruptured extruded disc, and exploration and decompression. The discharge summary contains a final diagnosis of herniated ruptured extruded L4-5 disc, L4-5 radiculopathies right; and L4-5 microdiscectomy. A September 2009 private progress note showed no sciatica. An October 2009 private progress note reports that range of motion had improved. A November 2009 letter from Dr. K. reports that the Veteran had indicated slow, progressive improvement since October. He had numbness in the foot, but strength had improved with physical therapy. Neurological examination showed no sciatica. He had symmetrical deep tendon reflexes and motor examination was normal. Hyperalgesia in the L5 dermatome on the right side was noted and the incision had healed well. A November 2009 private progress note indicates that strength in the Veteran's lower back had improved but that he continued to have pain with flexion. The Veteran received physical therapy from Riddle Rehabilitation Institute between October 2009 and November 2009. He consistently reported lower back pain, at varying degrees with rest and activity, and with "some" due to the therapy he was receiving. He also reported stiffness. No range of motion testing was reported. A November 2009 progress note reveals findings of 0/10 pain at rest and 9/10 pain, with activity. Range of motion of the lumbar spine was within normal limits and the Veteran was able to touch his fingertip to the floor with flexion. A January 2010 letter from Dr. K. notes that the Veteran reported that his back had been doing well until two weeks prior, when shoveling snow resulted in back pain, shortness of breath, and coughing. The Veteran denied leg pain. Neurological examination was unremarkable and there was no sciatica. Deep tendon reflexes were symmetrical and mild hyperalgesia in the L5 distribution on the right side was noted. The incision was well-healed. Dr. K. indicated that the Veteran had sustained a lumbosacral sprain following shoveling and restricted the Veteran from carrying, lifting, or shoveling more than 20 to 25 pounds. A L4-5 microdiscectomy had been performed on the right side on August 21, 2009, with no evidence of lumbar radiculopathy. Symptoms were musculoskeletal in origin. In a March 2010 letter, Dr. K. reported that the Veteran's overall condition had improved since January and that he denied significant back or leg pain, weakness, numbness, or paresthesias. Neurological examination showed no sciatica. Deep tendon reflexes were symmetrical, and the motor and sensory examinations were normal. Dr. K. indicated that the Veteran had recuperated from the surgery well, though he had not yet reached the level of maximum medical improvement. A functional capacity evaluation was conducted in April 2010. In pertinent part, the Veteran reported several episodes of his back "giving way" over many years and participating in skilled rehabilitation since his surgical procedure, with "some" marked improvement, decreased pain, and improved mobility. The Veteran's current level of discomfort was a level two on a scale of ten. The Veteran reported an independent ability to care for his activities of daily living without discomfort, an ability to perform household duties with moderate difficulty, and an ability to independently negotiate his environment without assistive devices. He presented with mild-moderate pain, which was seen consistently throughout participation in the activities requested during the evaluation. His average pain during the evaluation was reported 2.4 out of 10, and the final pain report was 2.5 out of 10. Physical examination revealed a well-healed 4.5 centimeter surgical scar at the midline lumbar spine. Sitting posture was fair with forward head, rounded shoulders, and moderate reversal of lumbar lordosis. Gait quality and cadence was normal and basic transfers were mildly antalgic and purposeful. There was no point tenderness to palpation and response to light touch was normal. Lower extremity deep tendon reflexes were normal and the Veteran demonstrated 4/5-5/5 strength throughout the cervical spine, trunk and extremities. Trunk active range of motion was normal and symmetrical, but no actual measurements were provided. Waddell test was completely normal. The Veteran was able to complete three of three repetitions of forward bending/scooping but refused participation in squatting/crouching, indicating that he was unable to perform the task safely. He was able to complete three of three repetitions, 10 out of 10 repetitions in 15 seconds, and 10 out of 10 fast repetitions in eight seconds, all without change in status, for both horizontal and vertical reach. Mild low back "tightness" was noted with dynamic lifting from the waist, shoulder, and overhead. The Veteran was unable to tolerate activity below waist height. Dr. K. reported in a May 2010 letter that the Veteran's overall condition had remained unchanged since March and that he had low back pain, without sciatica, though he had significant back and right hip pain after doing strenuous physical activity. Neurological examination remained unremarkable. The Veteran was seen in the VA primary care clinic in May 2011 with complaint of low back pain. He denied weakness or paresthesias. Neurological examination revealed negative straight leg raising and drawer sign testing. The examiner noted that examination was inconsistent. Sensory, motor, and cerebellar examinations were intact and gait and deep tendon reflexes were normal. The assessment was low back pain, with paucity of findings and exaggeration of symptoms, with a significant component of secondary pain. The Veteran underwent a VA spine examination in July 2011, at which time his claims folder was reviewed. He reported burning pain in his lower extremities and pain at a level three to four out of ten daily. He denied muscle weakness, paraspinal muscle spasm, and bowel or bladder problems. Treatment was in the form of as needed nonsteroidal anti-inflammatory drugs as needed. The Veteran also reported steroid injections and a back operation. Examination revealed that the Veteran got up from his chair without the use of arm rests but got on and off the examination table with pain. Facial pain gestures and muscle spasms were noted and the examiner indicated that he shifted his body to one side to get off the examination table. Gait was antalgic with no heel, toe, or tandem gait. Neurological examination revealed normal cranial nerves. Motor examination was normal in terms of tone and coordination. Muscle strength and tone were normal at 5/5. Sensory examination revealed normal pinprick, light touch and vibration perception. Deep tendon reflexes were normal and equal, bilaterally. The lumbar spine had normal lumbar curvature and there were no paraspinal muscle spasms. Range of motion testing was restricted due to pain, which started at 45 degrees and ended at 50 degrees. Forward flexion was to 50 degrees and extension, bilateral lateral flexion, and bilateral lateral rotation were to 10 degrees. There was no additional limitation of motion or functional loss due to any weakened movement, excessive fatigability, incoordination, or painful motion upon repetitive use. X-rays of the lumbar spine taken in 2011 revealed degenerative joint disease at L4-L5. A functional assessment revealed that no ambulation aids were required, the Veteran was independent in his activities of daily living, and there had been no medically enforced bed rest in the last 12 months. The diagnosis was lumbar sprain and strain and status post lumbar spine disc surgery for relief of sciatica. In a July 2012 addendum to the July 2011 VA examination, the examiner reported that there was no evidence of favorable or unfavorable ankylosis of the lumbar spine, as evidenced by normal spinal curvature on physical examination and x-ray. The July 2011 x-ray reveals no evidence of acute fracture or dislocation; degenerative changes most pronounced at the L4/L5 level with anterior osteophytes, endplate sclerotic changes and posterior facet hypertrophic changes; no acute compression fracture; intact pedicles; normal appearing paraspinal soft tissues; and intact sacroiliac joints. The impression was degenerative changes, most pronounced in the lower lumbar spine. A VA examination in July 2012, provided the diagnoses of resolved lumbar spine strain and lumbar spine degenerative joint disease. The Veteran reported that flare-ups impact the function of the thoracolumbar spine in terms of increased back pain and stiffness. Range of motion testing revealed forward flexion to 50 degrees, with objective evidence of painful motion beginning at 45 degrees; and extension, bilateral lateral flexion, and bilateral lateral rotation to 10 degrees, with objective evidence of painful motion beginning at 5 degrees. The Veteran was able to perform repetitive-use testing with three repetitions, there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing, and there was no functional loss and/or functional impairment of the thoracolumbar spine. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine and no guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing was normal for bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral ankle dorsiflexion, and bilateral great toe extension. There was no muscle atrophy and deep tendon reflexes were normal in the bilateral knee and ankle. Sensation to light touch testing revealed normal sensation but the Veteran was unable to perform the straight leg raising test. The examiner noted radicular pain or any other signs or symptoms due to radiculopathy in the form of moderate intermittent pain that was usually dull and numbness in the bilateral lower extremity. The nerve root involved was the sciatic nerve and the severity for both sides was noted to be moderate. There were no other neurological abnormalities such as bowel or bladder problems/pathologic reflexes. The examiner indicated that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine and, therefore, no incapacitating episodes over the past 12 months due to intervertebral disc syndrome. It was also noted that the Veteran did not use any assistive devices as a normal mode of locomotion. The examiner reported a six centimeter lower back scar that was nontender without erythema or keloid formation and with normal color and texture. It was also noted that the scar was not painful and/or unstable. Prior to July 2, 2009 The preponderance of the evidence of record is against the claim for a rating in excess of 10 percent prior to July 2, 2009, for the Veteran's service-connected low back disorder. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees has not been shown; forward flexion, at worst, was 70 degrees. In addition, the combined range of motion of the thoracolumbar spine at the time of the March 2009 VA examination was 150 degrees, which does not meet the criteria needed for assignment of a 20 percent rating. Lastly, there is no evidence of abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and while the evidence reveals the Veteran had an antalgic gait, there is no evidence that this abnormality was the result of muscle spasm or severe guarding. Rather, the March 2009 VA examiner specifically noted the absence of spasm. For these reasons, a rating in excess of 10 percent for the Veteran's service-connected low back disorder is not warranted prior to July 2, 2009, under the General Rating Formula. 38 C.F.R. § 4.71a. There is also no evidence of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months so as to support the assignment of a 20 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board acknowledges the Veteran's assertions that he was in bed beginning in October 2008, that he was unable to get out of bed except for very short periods of time, "sometimes minutes" a day, that he had to return to bed even after minor activity, and that he spent on the average of 23 hours of bed a day. However, there are no medical record that shows that bedrest was prescribed by a physician. Moreover, the Veteran has not contended he was prescribed bedrest or that he was treated by a physician during these periods. In addition, the March 2009 VA examiner indicated that there were no incapacitating episodes requiring strict bed rest in the year prior. For these reasons, a rating in excess of 10 percent for the Veteran's service-connected low back disorder prior to July 2, 2009 is not warranted, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected back disorder. The Board acknowledges the subjective complaints of pain made prior to July 2, 2009, as well as the objective evidence of pain during range of motion testing in December 2008, February 2009, and at the time of the March 2009 VA examination. More specifically, during the VA examination, the Veteran was only able to tolerate two repetitions and complained of pain throughout range of motion in all planes. The Board also acknowledges that the Veteran reported difficulties with activities of daily living and at his prior job. In this regard, the March 2009 VA examiner indicated that there would be some decrease in range of motion with repetition due to pain, but that it was impossible to quantify the exact limitation in degrees without resorting to speculation. Even if range of motion was limited by pain beyond that shown during examination, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). 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. at 43; see 38 C.F.R. § 4.40. In this case it does not. More specifically, there was no evidence of decreased range of motion with repetitive range of motion testing of the thoracolumbar spine during the March 2009 VA examination. In addition, the clinical records associated with the claims file do not document any impairment in the spine other than complaints of pain. Taking into account the objective findings of pain during range of motion testing at the March 2009 VA examination, the Veteran was still able to forward flex to 70 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In light of the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected low back disorder is not warranted prior to July 2, 2009, based on functional impairment. 38 C.F.R. §§ 4.40, 4.45 (2012); Deluca v. Brown, 8 Vet. App. 202, 204-06 (1995). Beginning July 2, 2009 The preponderance of the evidence of record is against the claim for a rating in excess of 20 percent as of July 2, 2009 for the Veteran's service-connected low back disorder. Forward flexion of the thoracolumbar spine of 30 degrees or less was not shown; forward flexion, at worst, was 50 degrees. The medical evidence found no evidence of ankylosis of the low back. See also Lewis, 3 Vet. App. at 259. Accordingly, the assignment of a rating in excess of 20 percent for the Veteran's service-connected low back disorder is not warranted under the General Rating Formula as of July 2, 2009. 38 C.F.R. § 4.71a. There is also no evidence of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The July 2011 VA examiner indicated that there had been no medically enforced bedrest in the last 12 months and the July 2012 VA examiner indicated that the Veteran did not have any incapacitating episodes in the previous year. Accordingly, a rating in excess of 20 percent for the Veteran's service-connected low back disorder is not warranted as of July 2, 2009, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Consideration has again been given to any functional impairment and any effects of pain on functional abilities. The Board acknowledges the subjective complaints of pain made as of July 2, 2009, as well as the objective evidence of pain with flexion in November 2009, and mild-moderate pain shown consistently throughout the April 2010 functional capacity evaluation, as well as at the time of the July 2011 and July 2012 VA examinations. More specifically, during the VA examinations, the Veteran exhibited pain beginning at 45 degrees of flexion. The Board also acknowledges that the Veteran continued reports of difficulties with activities of daily living, as well as his testimony before the Board in April 2011 that his back restricted his ability to carry more than 25 pounds and work certain jobs. However, the objective evidence of record dated as of July 2, 2009 is devoid of any suggestion that this pain constitutes functional loss. See Mitchell, 25 Vet. App. at 43; see also 38 C.F.R. § 4.40. More specifically, there was no evidence of additional limitation of motion or functional loss due to any weakened movement, excess fatigability, incoordination, or painful motion upon repetitive use at the time of the July 2011 VA examination, and the July 2012 VA examiner specifically noted the absence of additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing and any functional loss and/or functional impairment of the thoracolumbar spine. The clinical records associated with the claims file beginning in July 2009 do not document any impairment in the spine other than complaints of pain. Taking into account the findings of pain at 45 degrees of forward flexion during the July 2011 and July 2012 VA examinations, forward flex to 50 degrees after repetitive range of motion testing was shown. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Accordingly, the Board finds that a rating in excess of 20 percent for the Veteran's service-connected low back disorder is not warranted beginning July 2, 2009, based on functional impairment. 38 C.F.R. §§ 4.40, 4.45; Deluca, 8 Vet. App. at 204-06. Associated Abnormalities The Board has also considered whether the Veteran's service-connected low back disorder manifests any associated objective neurologic abnormalities so as to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). A rating decision in April 2009, assigned a separate 10 percent rating for radiculopathy of the right lower extremity, effective November 21, 2008. This rating was increased to 20 percent, effective July 11, 2012, by a December 2012 rating decision. The Veteran has consistently denied any bowel or bladder impairment. The Board acknowledges that the July 2012 VA examiner indicated that the Veteran reported a burning sensation on the front and shins of both legs. The preponderance of the evidence, however, does not support a finding that the Veteran has a neurological abnormality affecting the left lower extremity. More specifically, a neurological examination in February 2009 revealed somatosensory examinations on the left were all normal without dysthesia, paresthesia, allodynia, hyperalgesia, hyperpathia, summation and after-sensation to stimulation present. A July 2009 neurological evaluation conducted at Riddle Memorial Hospital revealed strong left lower extremity strength and intact left lower extremity sensation. The Veteran's treating physician, Dr. K., consistently reported unremarkable neurological examination and the absence of any sciatica following the Veteran's August 2009 back surgery. In addition, sensory examination at the time of the July 2011 VA examination revealed normal pinprick, light touch and vibration perception, and deep tendon reflexes were normal and equal, bilaterally. Lastly, there is no objective evidence, such as the EMG of the right lower extremity, showing neurological impairment affecting the left lower extremity. In the absence of any objective medical evidence or a diagnosis related to neurological abnormality associated with the Veteran's service-connected degenerative disc disease of the lumbar spine other than the service-connected radiculopathy of the right lower extremity, the evidence of record does not support the assignment of another separate rating. The Board has considered whether a separate rating is warranted for the scar associated with the Veteran's service-connected lumbar spine disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). The references to the lumbar scar do not support the assignment of a separate rating as the scar is not deep and does not cause limited motion in an area that exceeds six square inches; is not deep and nonlinear in an area of at least six square inches but less than 12 square inches; is not superficial without causing limited motion or superficial and nonlinear in an area of 144 square inches or greater; is not superficial and unstable or painful on examination; nor does the scar limit the Veteran's lumbar spine function. See 38 C.F.R. § 4.119, Diagnostic Codes 7801-7805 (2007); 73 F.R. 54708 (Sep. 23, 2008). Other Considerations Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected lumbar spine disability picture is not so unusual or exceptional in nature as to render the 10 and 20 percent ratings assigned for this disorder inadequate at any time period on appeal. The Veteran's service-connected degenerative disc disease of the lumbar spine is evaluated under musculoskeletal disorders, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology, to include consideration of pain. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Prior to July 2, 2009, the Veteran's degenerative disc disease of the lumbar spine was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the previous 12 months. Since July 2, 2009, the Veteran's degenerative disc disease of the lumbar spine has not been manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. When comparing these manifestations with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's service-connected low back disorder is more than adequately contemplated by the disability ratings assigned. Ratings in excess of 10 and 20 percent "staged" ratings are provided for certain manifestations of the service-connected lumbar spine disorder, but the medical evidence of record did not demonstrate that such manifestations are present in this case. The criteria for the 10 and 20 percent disability ratings assigned more than reasonably describe the Veteran's service-connected low back disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). There is no evidence of record that would warrant ratings in excess of the schedular 10 and 20 percent evaluations assigned for the Veteran's service-connected degenerative disc disease of the lumbar spine at any time during the period pertinent to this appeal. 38 C.F.R. §38 U.S.C.A. § 5110 (West 2002); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected lumbar spine disorder, the evidence shows no distinct periods of time since service connection became effective, other than those currently assigned, during which the manifestations of the Veteran's lumbar spine disorder has varied to such an extent that a rating greater or less than the 10 and 20 percent ratings assigned would be warranted. Cf. 38 C.F.R. § 3.344 (2012) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). Accordingly, an evaluation greater than the 10 percent assigned prior to July 2, 2009, and an evaluation greater than the 20 percent assigned beginning July 2, 2009, for the manifestations of the Veteran's service-connected degenerative disc disease of the lumbar spine is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against ratings in excess of the 10 and 20 percent evaluations assigned, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to July 2, 2009, is denied. A rating in excess of 20 percent for degenerative disc disease of the lumbar spine beginning on July 2, 2009, is denied. REMAND The claim for entitlement to a total disability rating for compensation purposes based on individual unemployability was remanded in July 2011 in order to schedule the Veteran for a VA examination to determine the impact that his service-connected disabilities have on his employability. Examinations that discussed the Veteran's employability were conducted in 2011 and 2012, pursuant to the Board's remand, but none considered the combined effects of all the Veteran's service-connected disabilities on his employability. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). This deficiency must be rectified on remand. See Friscia v. Brown, 7 Vet. App. 294 (1994). The Board notes that in addition to degenerative disc disease of the lumbar spine, the Veteran is also service-connected for adjustment disorder, status post left knee anterior cruciate ligament tear, right lower extremity radiculopathy, and chronic left knee synovitis. Recent VA treatment records should also be obtained. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim for a total disability rating for compensation purposes based on individual unemployability. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's treatment records from the Wilmington VA Medical Center, dated since July 2012. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs