Citation Nr: 1315810 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 95-05 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased disability rating for duodenal ulcer, currently rated as 40 percent disabling. 2. Entitlement to an increased disability rating for lumbar spine spondylolisthesis with chronic low back pain, currently rated as 20 percent disabling. 3. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity radiculopathy associated with lumbosacral strain to include spondylolisthesis at L5-S1. 4. Entitlement to an earlier effective date, earlier than July 2, 1993, for the grant of service connection for lumbosacral strain to include spondylolisthesis at L5-S1. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service connected disabilities. REPRESENTATION Appellant represented by: J. Moore, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from May 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the Veteran's claim for service connection for a low back disability, to include as secondary to duodenal ulcer, a November 1994 rating decision which granted the Veteran's claim for an increased rating for duodenal ulcer, assigning a 20 percent rating, effective September 7, 1994 (the date of treatment records showing increased symptoms), and denied the Veteran's claim for a permanent and total disability rating for non-service-connected pension purposes, a June 2009 rating decision which denied entitlement to TDIU, and an August 2009 rating decision which denied entitlement to an earlier effective date for the grant of service connection for a lumbar spine disability. The Veteran and his service representative were notified of the November 1994 rating decision in December 1994. Later that same month the Veteran disagreed with the increased rating assigned to his service-connected duodenal ulcer and with the denial of his claim for a permanent and total disability rating for non-service-connected pension purposes. Following the issuance of a statement of the case (SOC) on the issue of an increased rating for duodenal ulcer, the Veteran perfected a timely appeal on this claim in February 1995. Later that same month, in February 1995, the Veteran disagreed with the denial of his claim for service connection for a low back disability, to include as secondary to duodenal ulcer. He perfected a timely appeal on that claim in May 1995. A hearing was held at the RO on the Veteran's claims in June 1995. Another hearing was held at the RO on the Veteran's claims in February 1997. Transcripts of the hearings are of record. In October 1998, the Board remanded the Veteran's claims for an increased rating for duodenal ulcer and for service connection for a low back disability, to include as secondary to service-connected duodenal ulcer, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In its remand, the Board noted that the Veteran had disagreed with the denial of his claim for a permanent and total disability rating for non-service-connected pension purposes and directed the RO to issue an SOC on this claim. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). After the RO issued an SOC to the Veteran and his service representative on his claim for a permanent and total disability rating for non-service-connected pension purposes in November 1998, the Veteran perfected a timely appeal on this claim in January 1999 and requested a Board hearing. The Veteran's service representative withdrew the Veteran's Board hearing request in a written statement received at the Board in July 2001. See 38 C.F.R. § 20.704. In December 2001, the Board denied the Veteran's claim for service connection for a low back disability, to include as secondary to service-connected duodenal ulcer, and also denied an increased rating for duodenal ulcer. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2004 rating decision, the RO denied the Veteran's claim for service connection for post-traumatic stress disorder (PTSD). There is no subsequent correspondence from the veteran or his service representative expressing disagreement with this decision. Accordingly, an issue relating to service connection for PTSD is not on appeal. In April 2005, the Court vacated and remanded the Board's December 2001 decision. In August 2005, the Board remanded the Veteran's claims for service connection for a low back disability, to include as secondary to service-connected duodenal ulcer, and for an increased rating for duodenal ulcer to the RO/AMC. An August 2007 Board decision granted an increase to 40 percent, but no more than 40 percent, for the Veteran's upper gastrointestinal disease, and granted service connection for the lumbar spine disability. In an October 2007 rating decision, the RO incorporated the Board's decision of August 2007, and granted service connection for right lower extremity radiculopathy. The Veteran appealed the August 2007 Board decision to the Court, and an August 2008 Order the Court granted a joint motion of the parties, vacating the part of the Board decision which denied a rating in excess of 40 percent for the Veteran's duodenal ulcer disease and remanded the case to the Board for action consistent with the joint motion. In September 2008, the Board remanded the claim of the disability rating for a duodenal ulcer, for further development. That same month, the Veteran, through his attorney, appealed the disability rating and effective date assigned to the lumbar spine disability, and the rating assigned for the right lower extremity radiculopathy. In a June 2009 rating decision, the RO denied entitlement to TDIU. In an August 2009 rating decision the RO granted an earlier effective date of July 2, 1993 for the grant of service connection for a lumbar spine disability. The Veteran appealed both decisions. The issues of the disability rating for duodenal ulcer, radiculopathy of the right lower extremity, and lumbosacral strain since September 26, 2003, and entitlement to TDIU are addressed in the REMAND portion of the decision below are REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. Prior to September 26, 2003, the Veteran's lumbosacral strain to include spondylolisthesis at L5-S1 had been manifested by symptoms more nearly approximating severe limitation of range of motion with pain 2. Prior to July 2, 1993 there was no formal or informal claim for service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. Prior to September 26, 2003, the criteria for a disability rating of 40 percent for the Veteran's service-connected lumbosacral strain to include spondylolisthesis at L5-S1 are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, 38 C.F.R. § 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5293, 5295 (2002); 38 C.F.R. § 3.102, 3.159, 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a. 2. The criteria for the assignment of an effective date prior to July 2, 1993 for the grant of service connection for lumbosacral strain to include spondylolisthesis at L5-S1 have not been met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. §§ 3.1(r), 3.151, 3.155, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In regards to the issue of the disability rating of the lumbar spine disability in cases such as this where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because service connection for lumbar spine and radiculopathy disabilities have already been granted, VA's VCAA notice obligations with respect to the issues of entitlement to higher initial evaluations for these disabilities are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) [where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements]. In any event, the record reflects that the Veteran filed his claim prior to the enactment of the VCAA. Nevertheless, the originating agency provided the Veteran with the notice required under the VCAA by a letter mailed in September 2005 and the claim was thereafter readjudicated in multiple statements of the case and supplemental statements of the case. The Veteran was also provided notice required under Dingess in a letter mailed in March 2006. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA treatment records, post-service examination reports have been obtained, private treatment records and Social Security Administration (SSA) records have bene obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate the Veteran's appeal. With respect to the examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's claims. The VA examinations of record reflect that the examiners reviewed the Veteran's past medical history, recorded the Veteran's current complaints, conducted appropriate examinations, and rendered appropriate diagnoses consistent with the other evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions as to the Veteran's initial rating claims has been met. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues on appeal were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103 (2012). As noted above, the Veteran testified at hearings held in June 1995 and February 1997. Accordingly, the Board will address the issues on appeal. Higher Evaluation for Low Back Disability prior to September 26, 2003 Ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). While the claim was pending, the applicable rating criteria for intervertebral disc syndrome (IVDS), 38 C.F.R. § 4.72, Diagnostic Code (DC) 5293, were revised effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002). Further, the remaining spinal regulations were amended effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). The timing of this change requires the Board to consider the claim under the pre-amended regulations for any period prior to the effective date of the amended diagnostic codes. See VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The pre-amended version of the rating criteria, in effect when the Veteran filed his claim in July 1993, provided ratings based on limitation of motion of the lumbar spine under Diagnostic Code DC 5292. Slight limitation of motion of the lumbar spine was to be rated 10 percent disabling; moderate limitation of motion of the lumbar spine was to be rated 20 percent disabling; and severe limitation of motion of the lumbar spine was to be rated 40 percent disabling. 38 C.F.R. § 4.71a (2002). Under the pre-amended version of the rating criteria, DC 5293 provided ratings for IVDS and warrants a 10 percent rating when mild, a 20 percent rating when moderate with recurring attacks, a 40 percent rating when severe, with recurring attacks, with intermittent relief, and a 60 percent rating when pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. Id. The pre-amended version of the rating criteria also provided ratings for lumbosacral strain under DC 5295. Lumbosacral strain with slight subjective symptoms only was rated noncompensable (0 percent) disabling. Lumbosacral strain with characteristic pain on motion was rated as 10 percent disabling. Lumbosacral strain with muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in the standing position, was rated 20 percent disabling. Severe lumbosacral strain with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, was rated 40 percent disabling. Id. Words such as "mild," "moderate," "severe" and "pronounced" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2011). It should also be noted that use of terminology such as "mild" by VA examiners and other medical professionals, although evidence to be considered by the Board, is not dispositive of any issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As previously noted, the applicable rating criteria for IVDS, 38 C.F.R. § 4.72, Diagnostic Code (DC) 5293, were revised effective September 23, 2002. Further, the remaining spinal regulations were amended effective September 26, 2003. As will be discussed below, the Board is remanding the determination of the disability rating since September 26, 2003. Therefore, a discussion of the post-amended versions of the regulations is not necessary at the present time, except for the rating criteria for IVDS which was amended prior to September 26, 2003. Under the new Diagnostic Code 5293, effective September 23, 2002 to September 25, 2003, IVDS (preoperatively or postoperatively) is to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining, under 38 C.F.R. § 4.25, separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months warrant a 40- percent disability evaluation. Incapacitating episodes having a total duration of at least six weeks during the past 12 months warrant a 60-percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Note (1): For purposes of evaluations under 5293, an incapacitating episode is 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). On VA examination in December 1972, the Veteran complained of back pain that had started 1 year earlier. He denied any history of lumbar spine injury but stated that "he did a lot of lifting and carrying as an airplane mechanic" during service. He described his lumbar spine pain as throbbing and sharp "like a headache" and occasionally exacerbated by driving. Physical examination showed that he could bend his trunk with no pain at the lower back, although extension or "straightening up the trunk" produced pain. Twisting the trunk to the right and walking on the balls of both feet also produced pain in the lumbar spine. X-rays of the lumbar spine showed intact lumbar vertebra and a question of spondylolysis. The radiologist's impressions included an intact lumbar spine without evidence of fracture and the possibility of a spondylolysis deformity of the L5 pars interarticularis. The examiner's assessment included possible spondylolysis deformity of L5, per x-rays. On private outpatient treatment in July 1992, the Veteran complained of low back pain. Range of motion testing showed flexion and extension to 35 degrees, lateral rotation to 55 degrees bilaterally, dorsal flexion to 90 degrees, dorsal extension to 20 degrees, lateral flexion to 40 degrees on the left and to 30 degrees on the right, and rotation to 30 degrees bilaterally with complaints of hip pain. In an August 1992 letter, Dr. J.A.R. stated that the Veteran had complained of a long history of low back pain with radiation in to both posterior thighs and legs. The Veteran had presented an antalgic posture (with a lean to the left and predominate pain on the left side). Coughing, sneezing, and any increase of abdominal pressure accentuated his low back pain. The lumbosacral range of motion was limited in all directions and appeared to be guarded and productive of acute pain. Digital palpation of the lumbosacral area revealed marked paraspinal muscular spasm with some edema. X-rays were negative for fracture, dislocation, or pathology. Lumbar scoliosis concave to the right and mild disc degeneration of L5-S1 were noted. Dr. J.A.R. stated that the Veteran had been employed for 19 years in a job which involved considerable bending and frequent lifting. The diagnosis was severe lumbosacral pain and paresthesia with an associated sciatic radiculoneuralgia resulting from intervertebral disc syndrome producing discogenic nerve root compression of L5. A "Disability Certificate" dated on September 1, 1992, indicates that the Veteran had been under a physician's care and had been totally incapacitated from September 3, 1992, to October 1, 1992, due to a neuro-spinal compression sydrome of the lumbosacral spine. In an undated letter, Dr. J.A.R. stated that the Veteran had complained of pain on digital palpation of the thoracic and lumbar spine and pain in the upper and lower quadrants of the abdomen. In an October 1992 letter, J.P.F, M.D. (Dr. J.P.F.), stated that the Veteran complained of occasional right leg numbness on examination. He reported a history of back pain "for many years." Physical examination showed a normal gait, no marked point tenderness in the lumbar spine, forward flexion to 90 degrees, full back extension and hyperextension of 15 degrees, bending and rotation to 60 degrees bilaterally, and a normal sensory examination. Knee and ankle jerks were normal as were sensory and motor examinations of the lower extremities. Straight leg rising was to 90 degrees with no radicular pain. There was no atrophy of the muscles of the lower extremities. X-rays showed a spondylolysis at the L5 vertebra. Dr. J.P.F. stated that the veteran had a bony defect in the posterior elements of the L5 vertebra that was quite common. On VA spine examination in September 1993, the Veteran complained of lower back pain that occasionally radiated in to the lower extremities. He gave a history of injuring his back during active service "while changing motors on airplanes." He also reported that he had been forced to retire on disability due to low back pain. X-rays showed minimal osteoarthritis involving the anterior-superior corners of the third and fourth lumbar vertebrae and spondylolysis involving the fifth lumbar vertebrae with grade I spondylolisthesis of the L5-S1. The diagnoses included chronic low back pain, minimal degenerative joint disease of the lumbar spine, spondylolisthesis L5-S1, and spondylolysis of the fifth lumbar vertebrae. The Veteran was able to walk on his tip toes and heels without difficulty. Lumbar lordosis was little diminished. The examiner felt that range of motion was excellent with flexion to 53 degrees, extension to approximately 27 degrees, bilateral flexion to 25 degrees, and bilateral rotation to 10 degrees. There was no reported pain on movement and no muscle spasms. There was no guarding and straight leg rising was negative bilaterally. Sensory examination was OK, except that the Veteran complained of some numbness on and off on the lateral aspect of the right thigh. Deep tendon reflexes were present and equal bilaterally. On VA spine examination in May 1994, the Veteran complained of increasing back pain consisting of an ache in the lumbosacral area of his spine with pain radiating down his lateral right leg to the dorsum of the foot. He reported injuring his back during active service. The Veteran was observed leaning to the left in the lumbosacral area when walking to the examination room. He also was observed getting out of a chair as if he was in considerable low back pain. He asked the VA examiner if he could stand before sitting down due to back pain. Physical examination showed level shoulders and iliac crests, a tendency to shift all his weight over to the left leg for pain relief, pain in the mid-dorsal area of the spine and the anterior chest, and moderate spasm of the paraspinal muscles of the lumbar spine. Range of motion was flexion to 40 degrees with considerable pain approaching 30 degrees, extension to 5 degrees, bilateral flexion to 25 degrees, and bilateral rotation to 20 degrees. All ranges of motion were done with considerable pain. Straight leg rising at approximately 75 degrees gave an L5/S1 radiculopathy. Patellar deep tendon reflexes were +4 bilaterally and bilateral Achilles were +3. A computerized tomography (CT) scan of the lumbosacral spine showed spondylolytic defects at L5-S1. The diagnosis was right L5-S1 radiculopathy due to nerve root irritation at that level. On VA general medical examination in November 1994, the Veteran complained of considerable low back pain. He reported he was unemployed due to disability and had been disabled for the past 2 years. Physical examination showed that he stood "more or less avoiding putting weight on his left leg because of [a] shortened left leg," an upright posture with a slight limp, and evidence of scoliosis in the lumbar spine with convexity to the right. The diagnoses included lumbosacral strain sprain. A November 1996 VA examination showed no spasms. There was slight kyphosis of the spine in the thoracic area and was straight otherwise. Range of motion was flexion to 36 degrees with the fingertips 53 centimeters from the floor; extension was to 3 degrees, left lateral flexion was to 15 degrees, right lateral flexion was to 8 degrees, and bilateral rotation was to 3 degrees. There was some discomfort on flexion with good effort and with some marginal effort in all other planes of motion. Deep tendon reflexes and circulation were intact. There were no detectable abnormalities of the lower extremities. A March 1999 VA examination showed the Veteran reported back pain which had been present since 1970. Physical examination showed no scoliosis or kyphosis. Lumbar lordosis was reduced in the lower lumbar area with flattening of the lumbar lordotic curve. Range of motion was flexion to 60 degrees, extension to 8 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 15 degrees. Reflexes were 2+ in both knees. There was no right ankle jerk, but was present on the left. There was diminished sensation in the L5/S1 area on the outer side of the right leg and left foot. As indicated above, prior to September 26, 2003, the regulations called for a 10 percent rating to be assigned for slight limitation of motion of the lumbar spine, 20 percent rating to be assigned for moderate limitation of motion of the lumbar spine, and a 40 percent rating to be assigned for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). Prior to September 26, 2003, a 40 percent rating was warranted for lumbosacral strain that was severe, with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, and narrowing or irregularity of the joint space. A 40 percent evaluation was also warranted when only some of those symptoms were present if there was also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). Considering the above, the Board finds that resolving all doubt in the Veteran's favor, the Board finds that a disability rating of 40 percent is warranted for the time period prior to the amendment of the rating criteria in September 26, 2003, as the evidence prior to that reflects a disability picture which more closely approximates a severe impairment. In this regard the Board notes that in July 1992 flexion was restricted to 35 degrees; in September 1993 flexion was restricted to 53 degrees and rotation was restricted to 10 degrees; in May 1994 flexion was restricted to 40 degrees with considerable pain at 30 degrees, and extension was to 5 degrees; and in November 1996 forward flexion was restricted to 36 degrees, bilateral rotation and extension to 3 degrees, left flexion to 15 degrees and right flexion to 8 degrees. Considering the normal ranges of motion, these findings show a disability picture which more nearly approximates severe limitation of motion. Indeed, the Veteran's ranges of motion deviated from the normal from as little as 30 degrees to as much as 45 degrees. The Board considers such loss of motion to more nearly approximate a severe level. The Board acknowledges that during the time frame prior to September 26, 2003 the Veteran at times exhibited ranges of motion which would not be considered severe. However, in addition to the ranges of motion noted above, the Veteran was noted to have an antalgic gait to the left in August 1992 and May 1994, and in March 1999 he has absent aright ankle jerk. Therefore, even considering the ranges of motion which would not be considered severe, the Board finds that the evidence as a whole shows a severe disability picture warranting a disability rating of 40 percent. The Board herein has decided that the 40 percent disability rating should be in effect until the amendment in the rating criteria, or September 26, 2003. The Board notes that there is an absence of objective medical findings from 1999 to 2006 on which to rate the Veteran's lumbar spine disability. Therefore, resolving all doubt in the Veteran's favor, the Board has decided to grant the 40 percent disability rating through the date of the most recent amendment to the applicable regulation. Thereafter, as will be explained in more detail below, the evidence of record is insufficient to properly assess the disability rating warranted. The Board has considered whether a disability rating in excess of 40 percent is warranted during this period. However, 40 percent is the maximum rating allowed under DC 5292 and 5295. Therefore, a disability rating cannot be assigned under these criteria. DC 5293 does provide for a higher disability rating of 60 percent; however, the Board finds that the Veteran's disability does not warrant a 60 percent under those rating criteria. The record reflects the Veteran had only one incapacitating episode in September 1992 which lasted less than 6 weeks. Moreover, while there is a showing of absent right ankle jerk, and sciatic neuropathy, there have been considerable periods of time during which relief was noted. Moreover, the Board has considered the numerous statements from the Veteran and his representatives and finds that while credible, nothing contained therein supports a disability rating in excess of 40 percent for the time period prior to September 26, 2003. In this regard, the Board notes unfavorable ankylosis of the lumbar spine warrants a 50 percent evaluation under Diagnostic Code 5289. However, as shown above, even considering the Veteran's report of painful motion, the record does not show that the Veteran's disability has resulted in the functional equivalent of ankylosis. That is, he has retained motion of his spine during the period prior to September 26, 2003. Accordingly, a disability rating of 40 percent, but no more, for lumbosacral strain to include spondylolisthesis at L5-S1 is granted for the time period prior to September 26, 2003. Extraschedular Consideration The RO also determined that referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for an extra-schedular rating was not warranted. Under 38 C.F.R § 3.321(b)(1) , in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities is made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected status back disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence of record of an exceptional or unusual clinical picture prior to September 2006. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, the Board concludes that the evidence supports an increased rating of 40 percent for the Veteran's low back disability prior to September 26, 2003, but that the preponderance of the evidence is against the claim for a rating higher than 40 percent during this period. With respect to whether a disability evaluation in excess of 40 percent is warranted during this period, the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application; however, as shown above, the Veteran's warrants a 40 percent evaluation for the entire period prior to September 26, 2003. See Hart, supra. Earlier Effective Date for the Grant of Service Connection The Veteran seeks an earlier effective date, prior to July 2, 1993, for the grant of service connection for lumbosacral strain to include spondylolisthesis at L5-S1. Service connection for lumbosacral strain was granted in a rating decision of October 2007 effective August 10, 1993. The Veteran appealed the effective date assigned and in a SSOC of August 2009, the RO granted an earlier effective date of July 2, 1993. The Veteran argues that he is entitled to an effective date of April 23, 1993. He argues that his representative at the time filed an informal claim for service connection for a back disability. A review of the claim file shows that on April 23, 1993 the Veteran's representative submitted a letter to the RO stating "[t]he attached statement from [J.P.F., M.D.], Inc., dated 10/13/92, is submitted for the necessary action. All consideration given to Mr. [redacted] will be appreciated." Attached to the letter was a medical report of an examination of the Veteran's back which contained findings regarding the back and some findings regarding his stomach. In May 1993, the RO invited the Veteran to submit a claim for service connection for a back disability if he so wished. The Veteran submitted a statement in July 1993 stating that his real problem was not his duodenal ulcer, but his back and that the doctors had told him there was a relationship between his low back problems and his service connected duodenal ulcer. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date for the grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. As noted, in essence, the Veteran argues that the April 23, 1993 letter from his representative with attached medical evidence should be considered an informal claim for service connection for a back disability. The Board disagrees. At the time of the April 23, 1993 letter, an increased disability claim for the service connected duodenal ulcer was pending. The letter indicated the evidence was "submitted for the necessary action." The statement from the Veteran's representative is very vague. In the context of the state of the record at the time, the most logical interpretation is that the evidence was to be considered in the pending claim of the increased disability rating for duodenal ulcer. In fact, while the attached medical evidence was an examination of the back, symptoms associated with the Veteran's stomach were also noted in the report. Nothing in the representative's letter indicates an intent to file a claim for service connection for a back disability. As the only pending claim at the time was an increased disability rating for duodenal ulcer, the representative's statement of "submitted for the necessary action" is interpreted to mean for consideration in the pending claim. The Board is cognizant of the holding in Brannon v. West, 12 Vet. App. 32 (1998), wherein the Court observed that while the Board must interpret an appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant. However, even broadly interpreting the representative's letter, the Board finds that there is not even the slightest of indications of an intent to file a claim for service connection for a back disability. Indeed, not even the medical report mentions any event in service leading to the back disability, or a relationship between the back disability and the service connected duodenal ulcer. Moreover, the letter does not even identify "the benefit sought." In sum, there is no communication in the record, until the Veteran's statement received on July 2, 1993 which indicates an intent to file a claim for service connection for a back disability. The April 23, 1993 representative's letter cannot be considered an informal claim for service connection for a back disability. The Board has also considered whether the April 23, 1993 letter represents an informal claim under 38 C.F.R. § 3.157. The provisions of 38 C.F.R. § 3.157(b) (2012) state that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen: (1) report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient treatment or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. . . the provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. The Court has held that pursuant to 38 C.F.R. § 3.157, a report of examination or hospitalization may be accepted as an informal claim for benefits, but only after there has been a prior allowance or disallowance of a formal claim for compensation as delineated in the regulation. See Crawford v. Brown, 5 Vet. App. 33, 35-6 (1993); 38 C.F.R. § 3.157 (1993). In this case, at the time of the April 23, 1993, there had been no prior disallowance of a claim for service connection for a back disability. Therefore, the provisions of 38 C.F.R. § 3.157 are not applicable in the present case. Having reviewed the record in its entirety, the Board is unable to identify any formal claim, or any informal claim filed prior to the currently assigned effective date of July 2, 1993. Accordingly, the benefit sought on appeal is denied. ORDER Prior to September 26, 2003, a 40 percent disability rating is granted for lumbosacral strain to include spondylolisthesis at L5-S1, subject to the laws and regulations governing the disbursement of monetary benefits. An effective date earlier than July 2, 1993, for the award of service connection for lumbosacral strain to include spondylolisthesis at L5-S1 is denied. REMAND The Veteran seeks entitlement to TDIU and an increased disability rating for the service connected duodenal ulcer, lumbar spine disability and radiculopathy of the right lower extremity. After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the claims. With regards to the claim for entitlement to an increased disability rating for duodenal ulcer, the Board notes that in the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In a Board remand of September 2008, the Board requested that the RO schedule the Veteran for a VA examination to determine the current level of severity of the Veteran's duodenal ulcer. The examiner was asked to: "review the claims file and determine if the service-connected duodenal ulcer diagnosis is still current or, alternatively, if it has manifested into a different diagnosis. The entire gastrointestinal disability picture must be reviewed and the examiner should list to what extent the [V]eteran is disabled from his service-connected condition (duodenal ulcer or other current manifestation of same) and to what extent his gastrointestinal problems are affected by nonservice-connected conditions. In other words, to the extent that is possible, the examiner should distinguish between symptoms and functional impairment due to the [V]eteran's service-connected duodenal ulcer disease or other current manifestation of same from any nonservice-connected gastrointestinal disease that may be present but if the examiner is not able to distinguish the symptoms and/or degree of impairment due to the [V]eteran's duodenal ulcer disease or other current manifestation of same from any other diagnosed gastrointestinal disease (to include irritable bowel syndrome), he or she must consider all symptoms in determining the overall disability picture." The Veteran was afforded a VA examination in December 2008. At the time, the examiner stated that based on history and a physical examination of the Veteran, the current diagnosis was esophagitis/GERD and abnormal labs and these could "very well be a continuum of his previously diagnosed [service connected] duodenal ulcer disease." The RO found that the examination was inadequate and ordered a new examination. The Board finds that the December 2008 examination did not meet the requirements of the Board's September 2008 remand. Indeed, the examiner provided a mere equivocal statement of a possible connection between the current gastrointestinal (GI) diagnoses and the duodenal ulcer. Moreover, the examiner did not discuss the symptoms related to the diagnosed GI disabiities. A new examination was conducted in February 2009. The examiner, however, did not clarify the current GI diagnoses as requested. Rather, the examiner discussed the relationship between the Veteran's back disability and the duodenal ulcer. The examiner did appear to disagree with the diagnosis of duodenal ulcer; however, he did not provide any specific diagnoses for the Veteran's GI issues. Moreover, while he stated the etiology of the vomiting and nausea was unknown, he did not describe the symptoms which are associated with the Veteran's service connected gastrointestinal disability. Therefore, given the above, the Board finds that the RO did not comply with the Board's order and unfortunately, this case must be remanded once again. With regards to the issue of the disability rating for the lumbar spine disability from September 26, 2003, the Board finds that the evidence of record is insufficient to properly decide the claim. Indeed, the February 2006 VA examination does not provide the ranges of motion with repetitive use, but rather just mentions that forward flexion was worse with repetitive movement. Finally ,the Board notes that a December 2012 private examination notes the Veteran's range of motion of the lumbar spine to be severely reduced. However, no ranges of motion are provided. Given this, there is a possibility that the Veteran's disability has worsened and a new examination is needed to properly decide the claim. With regards to the issues of entitlement to TDIU and the disability rating for radiculopathy of the right lower extremity, the Board finds that the issues are inextricably intertwined ith the issue of the disability rating of the duodenal ulcer and lumbar spine disability. As such, the decision on these issues will be deferred until the requested development has been completed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a comprehensive VA gastrointestinal examination for the purposes of determining the current severity of his service-connected duodenal ulcer. It is imperative that the examiner review the claims file and determine if the service-connected duodenal ulcer diagnosis is still current or, alternatively, if it has manifested into a different diagnosis. The entire gastrointestinal disability picture must be reviewed and the examiner should list to what extent the Veteran is disabled from his service-connected condition (duodenal ulcer or other current manifestation of same) and to what extent his gastrointestinal problems are affected by nonservice-connected conditions. In other words, to the extent that is possible, the examiner should distinguish between symptoms and functional impairment due to the Veteran's service-connected duodenal ulcer disease or other current manifestation of same from any nonservice-connected gastrointestinal disease that may be present; but if the examiner is not able to distinguish the symptoms and/or degree of impairment due to the Veteran's duodenal ulcer disease or other current manifestation of same from any other diagnosed gastrointestinal disease (to include irritable bowel syndrome), he or she must consider all symptoms in determining the overall disability picture. The examiner should also provide an opinion as to whether the disability either alone or in combination with other service-connected disabilities renders the Veteran unemployable. The claims file should be furnished to the examiner for his or her review. Access to the Veteran's Virtual VA file should also be provided for review of any relevant records contained therein. All diagnostic studies or tests deemed necessary should be accomplished. A complete rationale for any opinion rendered should be provided. 2. Schedule the Veteran for a physical examination to determine the current severity of his lumbar spine disability. The Veteran's VA claims folder and a copy of this Remand should be made available to and should be reviewed by the examiner. The examiner should specifically identify (1) range of motion of the Veteran's lumbar spine, including motion accompanied by pain, in degrees; and (2) functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use. The examiner should also specifically assess the severity of all neurological symptomatology, if any, that is at least as likely due to the Veteran's service-connected lumbar spine disability, to include the Veteran's service-connected peripheral neuropathy of the right lower extremity. The examiner should also provide an opinion as to whether the disability either alone or in combination with other service-connected disabilities renders the Veteran unemployable. A report should be prepared and associated with the Veteran's VA claims folder. 3. After completion to the extent possible of the directed development, and any additional development that is indicated by the current state of the record, re-adjudicate the Veteran's claims. If the decision is less than fully favorable, issue an appropriate supplemental statement of the case and forward the case to the Board for final adjudication. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs