Citation Nr: 1315845 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 06-27 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain with L4 degenerative disc disease. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from August 1968 to June 1970. This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In an August 2009 decision, the Board denied the Veteran's claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2011 memorandum decision, the Court vacated the Board's August 2009 decision and remanded the case for compliance with the Court's directives. The Board remanded the case in September 2011 and September 2012 for additional development. FINDING OF FACT The competent medical and other evidence of record fails to reflect that the Veteran's service-connected lumbosacral strain with L4 degenerative disc disease manifests in forward flexion of the thoracolumbar spine to 30 degrees, favorable ankylosis of the entire thoracolumbar spine or doctor-prescribed incapacitating episodes during any 12 month period. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for the Veteran's service-connected lumbosacral strain with L4 degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Codes 5243-5241 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that the United States Court of Appeals for Veterans Claims (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). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a December 2006 letter, the RO letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The December 2006 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After issuance of the December 2006 letter, and opportunity for the Veteran to respond, the February 2013 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Furthermore, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of October 2005, June 2007, March 2008, October 2011 and October 2012 VA examinations. The examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Additionally, per the September 2012 remand instructions and in light of the August 2009 Memorandum Decision, the October 2012 VA examiner addressed whether pain or other manifestations occurring during flare-up could significantly limit functional ability of the affected part. As such, the Board finds that the October 2005, June 2007, March 2008, October 2011 and October 2012 VA examination reports are sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative. The Board finds that no additional RO action to further develop the record on the claims is warranted. Law and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See, e.g., DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.40 (2012). The provisions of 38 C.F.R. §4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2012). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In November 2005, the Veteran was granted service connection for a lumbosacral strain with L4 degenerative disc disease and assigned a 20 percent disability rating effective August 26, 2005. This rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran was subsequently granted a temporary 100 percent rating from November 3, 2006, to December 31, 2006. This period is therefore not for consideration before the Board. The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine. These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. These criteria are disjunctive. See Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The rating criteria define normal range of motion for the various spinal segments for VA compensation purposes. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 20 percent disability rating is warranted 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 disability rating is warranted 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 disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The evaluation criteria 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. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). As enumerated above, the Veteran may only be availed if the competent medical and other evidence of record reflects no less than either (1) incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months or (2) forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. See the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes and The General Rating Formula for Diseases and Injuries of the Spine, respectively. Factual Background and Analysis The Veteran underwent a VA examination in October 2005. The VA examination report noted that the Veteran complained of pain that radiated into his abdomen and that his genital occasionally went numb. He also had a constant radiating pain into the ball of his left foot. The Veteran reported having flare ups two to three times per year, at which time he rests in bed for two or three days until the back gradually improves. The Veteran reported that the flare ups can last up to a month. His flare-ups could be brought on by just bending over to put on shoes or turning to get out of the car. Bed rest was an alleviating factor. Medications did not help much. He also complained of some bladder problems. On examination, the Veteran ambulated with a normal gait and was able to take his shirt off without any problem. The examiner observed extension from 0 to 28 degrees. Bending to the left was 26 degrees. Bending to the right was 24 degrees with complaint of mild pulling pain. Left and right lateral rotations were 0 to 30 degrees. Forward flexion was 0 to 72 degrees. The Veteran repeated forward flexion 0 to 78 degrees with mild complaint of pain with a sense of pulling in the right paraspinous region. The Veteran had mild right paraspinous muscle spasms after this range of motion. No other DeLuca criteria were noted with repetitive range of motion. Straight leg raising was negative both left and right. On neurologic examination, deep tendon reflexes were brisk at +2 at the patella bilaterally and at the Achilles. Sensation was intact. In November 2006, the Veteran underwent a bilateral L4-5 discectomy. It was noted that the Veteran had been experiencing bilateral radicular symptoms, worse on the left than the right. He had also been experiencing paresthesias and other discomfort into his perineum. A June 2007 VA examination report notes that the Veteran was being evaluated for his back condition, as well as radiculopathy in the lower extremities, and bladder or bowel problems. Records indicate that the Veteran had good relief of his radicular symptoms and full strength in his lower extremities post-surgery. The Veteran reported that he gets some return of the numbness in the left foot if he stands for over two hours. He also has a few episodes of dysesthetic pain in his penis. He denied any loss of bowel or bladder control. He did have one episode of loss of bladder control a couple of years ago, but he has had no further episodes since then. The Veteran reported that his usual job was a computer programmer and that he had worked for a bank until 2002. He attributed his current lack of employment to an economic slowdown and had been looking for work. He reported that there were few technical jobs in the area. The Veteran was independent in dressing and bathing and was able to feed himself, cook, and clean. He used a snow blower to clear snow and was able to do his lawn care. He did not wear a back brace. He continued to go to the gym. He was able to walk for half an hour before discomfort in his foot returned. (The Veteran is service-connected for bilateral gunshot wounds to the feet.) The examiner observed that the Veteran was able to drive himself 7 hours to VA for his appointment. He had no specific doctor ordered bed rest in the past 12 months. On examination, the Veteran was able to stand independently and ambulate with assistive device. His gait was symmetrical. There was no evidence of antalgic gait. There was no evidence of gait asymmetry. There was no evidence of footdrop with ambulation. There was a well-healed surgical scar with no evidence of discharge, erythema, or swelling around the scar. The scar was nonadherent. There was no spasm over the lumbar spine. The Veteran's range of motion was 90 degrees of forward flexion. Extension was 20 degrees. Lateral bending was 25 degrees bilaterally. Rotation was 20 degrees. Repetitive testing was done per DeLuca criteria. The examiner observed that no flare ups were noted during objective examination and it would be require speculation to comment on how flare ups would affect function without objective evidence of flare-ups. However, the examiner noted that there was no change in range of motion, instability, weakness, or fatigability with repetitive testing. Neurological examination of the lower extremities revealed reflexes to be 2+ at the knee and 1+ at the ankles. Sensory examination revealed no loss of sensation and manual muscle testing revealed no evidence of weakness. There was no indication of loss of bowel or bladder control due to the low back condition. There was no evidence of radiculopathy on examination. The Veteran's symptoms were noted to have almost resolved. The numbness that was reported in the foot after standing for more than two hours was said to be consistent with his lumbar disc disease. A March 2008 VA spine examination report noted that the Veteran complained that he had experienced some incapacitating episodes and ongoing left foot numbness. The Veteran stated that he has intermittent shooting type pain and that the bottom of his left foot goes numb. He stated that he had numbness in the foot after driving two hours on his way to the examination. During the time of the range of motion activity, the Veteran stated that his back stretched out and felt better, and the numbness nearly resolved and left a just a small seven by seven centimeter area of numbness on the plantar portion of the metatarsophalangeals (MTPs) of the left foot. He stated that the numbness generally occurred two to four times per week. He reported experiencing stiffness in his back after sitting about 30 minutes. The Veteran stated that anything could be a precipitating factor and that laying down was generally an alleviating factor. He stated that his last significant "near incapacitating episode" was in September 2007 and it required bed rest for about a week. At the time of this episode, he was moving some gravel around his driveway. He did not know what happened but he could hardly move and had to use a chair in the shower. He stated that he tries to work out nearly every other day and is careful in performing exercises so as not to irritate his back. He also noted that gentle gym exercises helped his back stay loosened up. The Veteran did not require any assistive devices, crutches, braces, or canes. He denied any new trauma. He had experienced no surgeries, incapacitating episodes, injections, neurological work-ups or treatments since the June 2007 VA examination. The Veteran's main concern was that he has flare-ups and by the time he gets to a medical facility for any kind of evaluation his back has loosened up and he is not experiencing the same level of pain. At the time of the examination, he denied any current pain. He stated the pain could be an intermittent, quick, shooting type. On examination, the Veteran had a lumbar scar that was 4.8 centimeters. There was no tenderness to palpation; no adherence; no heat, lump, or mass; and no complaint of pain with palpation. On goniometry examination, forward flexion was 0 to 80 degrees. The Veteran reported that he did not experience any pain. Extension was 0 to 12 degrees on triple repetitive activity, and the best obtained was 0 to 12 degrees. Left lateral flexion was 0 to 15 degrees, and right lateral flexion was 0 to 12 degrees. Left lateral rotation was 0 to 40 degrees, and right lateral rotation was 0 to 46 degrees. After repetitive activity and evaluation the Veteran stated that his back felt more relaxed and was not as tight. On neurological evaluation, straight leg raising was negative both left and right for any complaint of pain. He stated that he can have back pain normally when lifting his leg. Neurologically DTRs were 2+, symmetrical and brisk. The left foot examination revealed a seven by seven centimeter area of loss of sensation per monofilament testing over the third and fourth MTP region. No lesions were noted. Foot color and nails were normal. The Veteran denied any other complaints or problems after triple repetitive activity. In the absence of any further objective evidence the examiner was unable to determine additional functional loss without resort to conjecture. The examiner noted that an October 2006 MRI report found desiccation with mild bulging at the L2-3 disc. Minimal thecal sac compression was noted. Reactive facet disease was again visualized. At level 3-4 there was more generalized bulging of the disc with broad-based thecal sac compression. There might have been slight narrowing of the neural foramina on both sides, the right side more than the left side. Reactive facet disease was again noted at level 4-5, generalized bulging of the disc with significant extrusion of the disc as a result of annulus fibrous tear, herniated into the sac almost completely obliterating the canal compressing the nerve roots of the cauda equine as well as the nerve rootlets at this level on both sides. The neural foramina were encroached up. There was reactive facet disease. At L5-S1 there was generalized bulging with minimal thecal sac compression. Reactive facet disease was again noted. The examiner diagnosed thoracolumbosacral spine strain with degenerative disc disease and degenerative joint disease status post L4-5 discectomy. The examiner noted that the Veteran was observed ambulating from the examination without an assistive device, with a normal, symmetrical, smooth gait, and without complaint. Per the September 2011 remand instructions, the Veteran underwent a VA examination in October 2011. The Veteran reported that he was currently getting over an "attack" which had been going on for about 6 weeks. He noted that this was his first flare-up since surgery 5 years ago. There was no current treatment for his back pain as he took it easy at home and waited it out. Flare-ups before his back surgery would usually last about 6 to 8 weeks at a time. He reported that his flare-ups did not limit him as he did not do anything. He was able to get up and out of bed, walk around, eat and go to the store. He indicated that during a flare-up, he takes it easier and does as little lifting and bending as possible. On examination, forward flexion was 0 to 60 degrees with painful motion beginning at 60 degrees. Extension was 0 to 30 degrees or greater with no objective evidence of painful motion. Right lateral flexion was 0 to 20 degrees with painful motion beginning at 20 degrees. Left lateral flexion was 0 to 20 degrees with painful motion beginning at 20 degrees. Right lateral rotation was 0 to 30 degrees or greater with painful motion beginning at 30 degrees or greater. Left lateral rotation was 0 to 30 degrees or greater with painful motion beginning at 30 degrees or greater. The Veteran was able to perform repetitive-use testing with 3 repetitions. He did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. He did have functional loss and/or functional impairment of the thoracolumbar spine as he had less movement than normal, pain on movement and interference with sitting, standing and/or weight bearing. He did not have localized tenderness or pain to palpitation for joints and/or soft tissue of the thoracolumbar spine. He did not have guarding or muscle spasm of the thoracolumbar spine. He did not have atrophy. His muscle strength was 5/5 in all areas. Reflexes were normal. His sensory examination was normal except for decreased sensation in the foot/toes as he noted numbness and decreased sensation to his left foot as a residual after having his back surgery. Straight leg raising test was normal. He did have radicular pain as he had mild pain in the right lower extremity and mild numbness of the right lower extremity. He had involvement of the L4/L5/S1/S2/S3 nerve roots on the right side. He did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disability such as bowel or bladder problems. The Veteran did not have IVDS of the thoracolumbar spine. He occasionally used a walker as he indicated that when his pain was really bad he would walk with a walker to take some of the pressure off. He had a surgical scar that was not painful, was not unstable and the total area did not exceed more than 39 square inches. The examiner noted that the Veteran's back condition did not affect his ability to work. He had previously worked as a computer programmer and was now unemployed. He last worked in December 2000. He lived alone and was able to cut his own grass and do snow removal. The Veteran reported that when he was not having an attack, he felt fine. In fact, from the time of his surgery until August 2011, he indicated that it was like he never had back problems. The examiner again noted that the Veteran's functional loss was less movement than normal, pain on movement, and interference with sitting, standing and weight bearing. No functional loss was due to excessive exertion or due to decreased strength, speed, endurance or absence of necessary structures, deformity, adhesion, defective inervation, weakened movement, excess fatigability or incoordination. The examiner opined that based on an examination of the Veteran and review of the evidence of record, the pain occurring during flare-ups could significantly limit functional ability of his thoracolumbar spine. The Veteran was examined during but near the end of a flare-up. The Veteran stated that when there was not a flare-up, he had no pain or limitation of function. He reported that he avoided much movement and lifting with a flare-up but stated that this would not affect his ability to work with the computer as he was trained. Per the September 2012 remand instructions, the Veteran underwent a VA examination in October 2012. The examiner noted that the Veteran had been in considerably less pain since undergoing back surgery in November 2006. In 2011, he had a back injection and had been pain free since then in between his flare-ups. The Veteran stated that he used to have radiation of pain from his lower back to both of his legs and sometimes to his abdomen and genital area but since the surgery most of the pain subsided. He did still have numbness to part of his left foot. He had an episode of pain in the right leg in November 2011 but since his last injection he did not have any pain or any numbness in his right leg. He denied any current pain to his back or in his legs. He reported, however, that his flare-ups were totally prostrating. He noted flare-ups about 2 to 3 times a year and he was not sure if there was any specific action that brought on the flare-ups. Sometimes if he lifted something the wrong way or if he moved the wrong way he would have a flare-up. His last flare-up was during the end of 2011. He reported that during these flare-ups he was in extreme pain and they lasted for 5-6 weeks. During this time he had to only lay in bed and had to roll out of bed to get to his feet. He had to use a walker to get around the house and nothing he could do made him comfortable. He was a computer programmer and his work was all sitting down so he could get back to work after 3 to 5 days when pain was decreased. However, the first 3 to 5 days he could not do any work. He denied any treatment during flare-ups because usually nothing helped. It is notable that he indicated that he did not have many flare-ups for about 5 years after his surgery in 2006 but in 2011 he got a flare-up episode. He reported that since November 2011 he did not have any more flare-ups after he received a local injection in his back. On examination, forward flexion was 0 to 50 degrees with objective evidence of painful motion beginning at 50 degrees. Extension was 0 to 20 degrees with objective evidence of painful motion beginning at 20 degrees. Right lateral flexion was 0 to 20 degrees with objective evidence of painful motion beginning at 20 degrees. Left lateral flexion was 0 to 15 degrees with objective evidence of painful motion beginning at 15 degrees. Right lateral rotation was 0 to 30 degrees or greater with painful motion beginning at 30 degrees or greater. Left lateral rotation was 0 to 30 degrees or greater with painful motion beginning at 30 degrees or greater. The Veteran was able to perform repetitive-use testing with 3 repetitions. He did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. He did have functional loss and/or functional impairment of the thoracolumbar spine as he had less movement than normal and pain on movement. He did not have localized tenderness or pain to palpitation for joints and/or soft tissue of the thoracolumbar spine. He did not have guarding or muscle spasm of the thoracolumbar spine. He did not have atrophy. His muscle strength was 5/5 in all areas. Reflexes were normal. His sensory examination was normal except for decreased sensation in the foot/toes as he noted numbness and decreased sensation to his left foot as a residual after having his back surgery. Straight leg raising test was normal. He did have radicular pain as he had mild pain in the right lower extremity and mild numbness of the right lower extremity. He had involvement of the L4/L5/S1/S2/S3 nerve roots on the left side. He did not have any other neurologic abnormalities or findings related to a thoracolumbar spine disability such as bowel or bladder problems. He had IVDS of the thoracolumbar spine but he did not have any incapacitating episodes over the past 12 months due to IVDS. He did not use assistive devices. He had a surgical scar that was not painful, was not unstable and the total area did not exceed more than 39 square inches. The diagnosis was mild diffuse degenerative disc disease. There was no fraction or sublaxation. He had a very mild left apex scoliosis. The examiner noted that the Veteran indicated that he had severe functional limitation during flare-up episodes when he was unable to perform any task as a computer programmer. He was completely pain free and fully functional without any limitations between flare-ups but he had to watch his activities, lifting, bending and twisting so that they did not precipitate a flare-up. The examiner noted that the Veteran was not having a flare-up during the examination so all statements regarding the functional loss due to flare-ups were by the Veteran' s history statements only. There was no functional loss due to repeated range of motion on the examination. According to the Veteran's statement, he was unable to do any bending during flare-ups and based on this history, range of motion of the lumbar spine could be speculated to be minimal. The examiner also opined that based on the examination, the Veteran's lumbar spine less likely than not made him unemployable. The examiner again noted that the Veteran reported that he was completely pain free in between flare-ups and had no functional limitation in his job. During flare-ups, he missed 3 to 5 days of work and was uncomfortable at work for 2 to 3 weeks until his pain subsided but he was able to work. He was not examined during his flare-ups but was seen in the pain clinic in January 2012 when he was having pain on a 2-4-7/10 level on a pain scale of 1 to 10. He had some limitation with left bending and flexion of the spine. He had no tenderness over the paraspinous muscles. He had negative straight leg raising bilaterally and had normal gait without any assistive device. His neurological examination was normal and intact. He made a statement that he did not need repeat injection in his back at a six month follow up because he was pain free and he was still pain free during his examination today. Therefore, it was less than likely that his lumbar disability made the Veteran unemployable. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent at any time relevant to the decision as the Veteran has not met the criteria under the general rating code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. The October 2005 examination report noted two or three episodes requiring bed rest of two or three days per year, while the March 2008 report noted that a September 2007 injury necessitated bed rest for approximately one week. There is, however, no evidence of bed rest as prescribed by a doctor. Even if these episodes did meet the incapacitating episode requirement of having been prescribed by a doctor, they would have to total at least four weeks in the past 12 months. Additionally, during the October 2012 VA examination the Veteran reported that during flare-ups he had to only lay in bed and had to roll out of bed to get to his feet. However, the VA examiner noted that the Veteran had not had any incapacitating episodes of back pain in the last 12 months. Therefore, an initial rating in excess of 20 percent based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on his orthopedic and neurological manifestations. Turning to the orthopedic manifestations, the Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). Such impairment was simply not documented as forward flexion of his thoracolumbar spine was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-7. Competent medical evidence reflects that the currently assigned 20 percent rating properly compensates him for the extent of functional loss resulting from any such symptoms. Although it was noted on the VA examination reports that the Veteran had less movement than normal, pain on movement and interference with sitting, standing and/or weight bearing, the functional loss is not equivalent to limitation of flexion to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine to meet the criteria for a 40 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. As noted above, the October 2012 VA examiner indicated that the Veteran's forward flexion was limited to 50 degrees with pain starting at 50 degrees after repetitive motion. However, since flexion has not been limited to 30 degrees or less even after repetitive use; and the Veteran's spine is not ankylosed since he has demonstrated the ability to flex, extend, and laterally flex and rotate, the criteria for an initial 40 percent evaluation have not been met. Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his low back disability. The Board notes that throughout his appeal, the Veteran contended that he experienced flare-ups that additionally limited his motion and ability to function. At his October 2005 VA examination, the Veteran reported having flare ups two to three times per year, at which time he rests in bed for two or three days until the back gradually improves. At his October 2011 VA examination, the Veteran reported that his flare-ups before his back surgery would usually last about 6 to 8 weeks at a time and that during a flare-up, he took it easier and did as little lifting and bending as possible. Finally, on VA examination in October 2012, the Veteran reported that he was unable to do any bending during flare-ups and that he missed 3 to 5 days of work and was uncomfortable at work for 2 to 3 weeks until his pain subsided. He also reported that during these flare-ups he was in extreme pain and they lasted for 5-6 weeks. During this time he had to only lay in bed and had to roll out of bed to get to his feet. The Board notes that during his October 2011 VA examination, the Veteran reported being toward the end of a flare-up and that on his VA examination in October 2012, he was not experiencing a flare-up. However, based on the Veteran's history, the examiners determined that there was additional functional loss during these flare-ups. The October 2011 VA examiner opined that the pain occurring during flare-ups could significantly limit functional ability of his thoracolumbar spine and the October 2012 VA examiner determined that functional loss during flare-up might cause additional lost range of motion as he noted that based on this history, the Veteran's range of motion of the lumbar spine during flare-ups could be speculated to be minimal. The Veteran has reported significant functional limitations during flare-ups where he was in extreme pain and multiple VA examiners have noted additional functional loss during his flare-ups as the October 2012 VA examiner noted that the flare-ups were prostrating. However, while the Veteran reported that that these flare-ups lasted for 5-6 weeks, he also indicated that he missed only 3 to 5 days of work as a result of his flare-ups. While the Veteran reported that he experienced flare-ups 2 to 3 times a year, he also indicated that he did not have many flare-ups for about 5 years after his surgery in 2006 but in 2011 he got a flare-up episode. He also reported that since November 2011 he did not have any more flare-ups after he received a local injection in his back. Additionally, the Veteran reported that when he was not having an attack, he felt fine. In fact, from the time of his surgery until August 2011, he indicated that it was like he never had back problems. The Veteran also stated that when there was not a flare-up, he had no pain or limitation of function. Thus, based on the Veteran's reported history, his flare-ups are relatively infrequent and fairly short in duration. Therefore, even if the additional limitation of motion during such flare-ups were extreme, based on the frequency and duration of such episodes, the Board finds that the overall impairment resulting from his back disability would still more closely approximate no more than a 20 percent rating. With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 20 percent as contemplated by the holding in Deluca. The Board has also considered whether a separate rating should be assigned for the Veteran's surgical scar. However, the evidence does not show that the scar is unstable or painful on examination as contemplated by a compensable rating under either 7803 or 7804. 38 C.F.R. § 4.118. On the contrary, the March 2008, October 2011 and October 2012 VA examination reports note that the surgical scar was not tender to palpation, was not adherent, and was not painful with palpation. The lack of symptomatology associated with this disability precludes the assignment of a separate compensable disability rating. Additionally, the Board has also considered whether a separate compensable rating is warranted for neurological manifestations of the Veteran's service-connected back disability. In this regard, the Board observes that the Veteran was granted a separate 10 percent disability rating for left foot numbness in an August 2007 rating decision. The Veteran did not appeal this award. Accordingly, the issues of entitlement to higher ratings for the Veteran's neurological impairment are not before the Board. Additionally, while the June 2007 examination report noted one episode of loss of bladder control a few years ago, voiding dysfunction is not compensable unless the Veteran must wear absorbent materials that must be changed less than two times per day. See 38 C.F.R. § 4.115a. The Veteran has not contended, and the evidence does not show, that the Veteran requires the use of absorbent materials. Therefore, a separate rating for neurological disability is not warranted. In sum, an evaluation in excess of 20 percent rating for lumbosacral strain with L4 degenerative disc disease is not warranted at any time during the applicable period. See Fenderson, supra. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected back disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant'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. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of his back disability aside from when he underwent back surgery for which he was granted a temporary 100 percent rating from November 3, 2006, to December 31, 2006. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. ORDER Entitlement to an initial evaluation in excess of 20 percent for lumbosacral strain with L4 degenerative disc disease is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs