Citation Nr: 1315946 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 04-00 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine before June 27, 2006, and an initial rating higher than 20 percent from June 27, 2006, to November 13, 2008. 2. Entitlement to service connection for a cervical spine disability to include as secondary to service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1974 to September 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in August 1995 (lumbar spine) and in February 2009 (cervical spine) of a Department of Veterans Affairs (VA) Regional Office (RO). While on appeal in a rating decision in October 2002, the granted service connection for degenerative disc disease of the lumbar spine and assigned an initial rating of 10 percent from November 4, 1994, the effective date for the grant of service connection. While on appeal of the initial 10 percent rating, in a rating decision in May 2007, the RO increased the rating to 20 percent effective from June 27, 2006. While on appeal to the Board of the initial staged ratings, that is, separate ratings for separate periods of time based on facts found, in a decision in January 2012, the Board denied an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine before June 27, 2006, and an initial rating higher than 20 percent from June 27, 2006, to November 13, 2008. The Board granted an increase to 40 percent from November 13, 2008, and denied the claim of service connection for a cervical spine disability. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012, the parties (the Veteran and VA) filed a Joint Motion to vacate the Board's decision, in part, denying an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine before June 27, 2006, and an initial rating higher than 20 percent from June 27, 2006, to November 13, 2008, and the claim of service connection for a cervical spine disability. The Board's favorable determination, granting a 40 percent rating from November 13, 2008, was not disputed. In February 2013, the Veteran's attorney presented additional argument and requested that the claim of service connection for a cervical spine disability be remanded for further development. After a review of the argument and consistent with the terms of the Joint Motion, granted by the Court, the claim of service connection for a cervical spine disability to included as secondary to service-connected degenerative disc disease of the lumbar spine is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Before November 18, 2005, the lumbar spine disability was manifested by slight limitation of motion without moderate symptoms compatible with sciatic neuropathy and without muscle spasm on extreme forward bending and loss of unilateral spine motion under the criteria in effect before September 23, 2002; the lumbar spine disability was manifested by slight limitation of motion without moderate symptoms compatible with sciatic neuropathy, or neurological manifestations or incapacitating episodes of at least two weeks, but less than four weeks, and without muscle spasm on extreme forward bending and loss of unilateral spine motion under the criteria in effect before and on September 23, 2002; the lumbar spine disability was manifested by slight limitation of motion without moderate symptoms compatible with sciatic neuropathy and without muscle spasm on extreme forward bending and loss of unilateral spine motion and without neurological manifestations or incapacitating episodes of at least two weeks, but less than four weeks, and without muscle spasm on extreme forward bending and loss of unilateral spine motion, and forward flexion was greater than 60 degrees, but not greater than 85 degrees and the combined range of motion was greater than 120 degrees, but not greater than 235 degrees, and without muscle spasm with abnormal gait or abnormal spinal contour, or objective neurological abnormality under the criteria in effective before or on September 23, 2002 and the criteria in effect from September 26, 2003. 2. From November 18, 2005, to November 13, 2008, the lumbar spine disability has been manifested by moderate limitation of motion without severe symptoms compatible with sciatic neuropathy and without severe lumbosacral strain under the criteria in effect before September 23, 2002; the lumbar spine disability has been manifested by moderate limitation of motion without severe symptoms compatible with sciatic neuropathy and without severe lumbosacral strain; and without neurological manifestations or incapacitating episodes of at least four weeks, but less than six weeks, under the criteria in effect before and on September 23, 2002; the lumbar spine disability has been manifested by moderate limitation of motion without severe symptoms compatible with sciatic neuropathy and without severe lumbosacral strain; and without neurological manifestations or incapacitating episodes of at least four weeks, but less than six weeks; and forward flexion was greater than 30 degrees, and without objective neurological abnormality under the criteria in effective before or on September 23, 2002 and the criteria in effect from September 26, 2003. CONCLUSION OF LAW 1. Before November 18, 2005, the criteria for an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5292, 5293, 5295 (effective prior to September 26, 2003), Diagnostic Codes 5292, 5293, 5295 (effective on September 23, 2002), and Diagnostic Code 5243 (effective on September 26, 2003); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 2. From November 18, 2005, to June 27, 2006, the criteria for an initial rating of 20 percent for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5292, 5293, 5295 (effective prior to September 26, 2003), Diagnostic Codes 5292, 5293, 5295 (effective on September 23, 2002), and Diagnostic Code 5243 (effective on September 26, 2003); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 3. From November 18, 2005, to November 13, 2008, the criteria for an initial rating higher than 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5292, 5293, 5295 (effective prior to September 26, 2003), Diagnostic Codes 5292, 5293, 5295 (effective on September 23, 2002), and Diagnostic Code 5243 (effective on September 26, 2003); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). On a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claim for service connection for a lumbar spine disability was filed prior to the enactment of the VCAA. Where, as here, service connection has been granted and an initial disability rating has been assigned, the claim of service connection has been more than substantiated, 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. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for initial higher ratings for the disability of the lumbar spine. Dingess, 19 Vet. App. 473. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and private medical records. The e Veteran was afforded several VA examinations of the lumbar spine. As the reports of the VA examinations are based on medical history and describe the disability in sufficient detail in the context of the rating criteria, the Board finds the examinations are adequate so that the Board's evaluation of the disability is a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating of a Disability of the Musculoskeletal System A 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. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Spinal vertebrae are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Lumbar Spine Rating Criteria The disability of the lumbar spine was initially assigned a 10 percent rating for limitation of motion under Diagnostic Codes 5292 and 5293, effective November 4, 1994. The rating was increased to 20 percent for limitation of forward flexion under Diagnostic Code 5237, formerly Diagnostic Code 5293, effective June 27, 2006. During the pendency of the appeal, the criteria for rating a disability of the spine were revised, effective September 23, 2002, and effective September 26, 2003. When the rating criteria are amended during the course of the appeal, the Board considers both the prior rating criteria and the current rating criteria because, should an increase rating be warranted under the revised criteria, the award may not be made effective before the effective date of the change. VAOPGCPREC 3-2000 (The Board should apply the amended regulation to rate the disability for periods from and after the effective date of the amendment. The Board should apply the prior version of the regulation to rate the disability for any period preceding the effective date of the amendment). Rating Criteria Prior to September 23, 2002 Prior to September 23, 2002, degenerative disc disease was rated as intervertebral disc syndrome under Diagnostic Code 5293. Under Diagnostic Code 5293, the criteria for a 10 percent rating were mild symptoms compatible with sciatic neuropathy. The criteria for a 20 percent rating were moderate symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle reflex, or other neurological findings appropriate with the diseased disc with recurring attacks. The criteria for a 40 percent rating were severe symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle reflex, or other neurological findings appropriate with the diseased disc with recurring attacks with intermittent relief. Other potentially applicable Diagnostic Codes were Diagnostic Code 5292 (limitation of motion of the lumbar spine) and Diagnostic Code5295 (lumbosacral strain). Under Diagnostic Code 5292 (limitation of motion of the lumbar spine), the criterion for a 10 percent rating was slight limitation of motion. The criterion for a 20 percent rating was moderate limitation of motion. And criterion for a 40 percent rating was severe limitation of motion. Under Diagnostic Code 5295 (lumbosacral strain), the criterion for a 10 percent rating was characteristic pain on motion. The criteria for a 20 percent rating were muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. The criteria for 40 percent rating were 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. The words "slight," "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather a decision of the Board must consider all the evidence to record. 38 U.S.C.A. § 7104(a). Rating Criteria from September 23, 2002, to September 26, 2003 Effect from September 23, 2002, and before September 26, 2003, the criteria under Diagnostic Code 5293 were revised. Under the revised Diagnostic Code 5293, intervertebral disc syndrome was rated either on the total duration of incapacitating episodes over the past 12 months or by combining separate ratings for chronic orthopedic and neurologic manifestations, whichever method resulted in the higher rating. Under the revised Diagnostic Code 5293, the criteria for a 10 percent rating were incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. The criteria for 20 percent rating were incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. The criteria for 40 percent rating were incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Under the Note (1) to Diagnostic Code 5293, an incapacitating episode was defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Chronic orthopedic and neurologic manifestations were defined as orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Under Note (2), orthopedic manifestations were to be rated under criteria for the most appropriate orthopedic Diagnostic Code or Codes. Neurologic manifestations were to be rated separately under the most appropriate neurologic Diagnostic Code or Codes. There was no change in the rating criteria for Diagnostic Code 5292 (limitation of motion of the lumbar spine) and for Diagnostic Code5295 (lumbosacral strain), which were the most appropriate orthopedic Diagnostic Codes for rating a disability of the lumbar spine. The most appropriate neurological Diagnostic Code for rating a disability of the lumbar spine with sciatica was Diagnostic Code 8520. Under Diagnostic Code 8520, the criterion for a 10 percent rating was mild incomplete paralysis. The criterion of a 20 percent rating was moderate incomplete paralysis. Rating Criteria from September 26, 2003, and Currently Effect from September 26, 2003, the criteria for rating a disability of the spine were revised. Under the revised and current criteria, a disability of the spine is rated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The General Rating Formula for Diseases and Injuries of the Spine replaced the orthopedic manifestations under Diagnostic Codes 5292 and 5295 with Diagnostic Codes 5237 (formerly Diagnostic Code 5295) and Diagnostic Code 5242 (formerly Diagnostic Code 5292). Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a 10 percent rating are forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. The criteria for a 20 percent rating are forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 40 percent rating are forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. For the purpose of VA compensation, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See Plate V, 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, any objective neurological abnormality is rated separately under the appropriate neurological Diagnostic Code. There was no change in the rating criteria for Diagnostic Code 8520, which is the most appropriate neurological Diagnostic Code for rating sciatica associated with a disability of the lumbar spine. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes replaces Diagnostic Code 5293 as effective on September 23, 2002. But the criteria for rating incapacitating episodes and the definition for incapacitating episodes did not change. Intervertebral disc syndrome is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating Intervertebral Disc Syndrome), whichever method results in the higher rating. Evidence VA records show that during hospitalization in October 1994 and ending on November, 8 1994, for chemical dependency, on physical examination flexion was to 50 degrees with some pain and on extension. Gait was adequate. There were no localized neurological signs or pathological reflexes. Two days after discharge from the hospital, at an orthopedic clinic, there was full range of motion of lumbosacral spine and no neurological changes. In January 1998, the Veteran was evaluated for low back pain by K.F., DC. Lumbar spine flexion was to 90 degrees, extension was to 35 degrees, rotation, left and right, were to 50 degrees, and lateral flexion, left to 35 degrees, and right to 32 degrees. Motor strength was normal. The reflexes were present. The straight leg raising test was positive as were other tests for back pain. In January 1998 a hearing was held before the Board on the claim for a back disability, which was not yet service connected. There was no relevant testimony addressing the criteria for rating a back disability. On VA examination in May 1999, the Veteran complained of daily back pain with weakness, stiffness, fatigability, and lack of endurance, which were aggravated by activities of daily living and diminished with rest. On examination, the Veteran walked with a normal gait with a mild loss of lordosis. Flexion was to 65 degrees, extension was to 30 degrees, right and left lateral bending were to 40 degrees, left rotation was to 55 degrees and right rotation was to 45 degrees. There was no evidence of muscle spasm on palpation. The deep tendon reflexes were 1+ at the knees and ankles. The extensor hallus longus motor strength was 5/5 bilaterally. The straight leg raising test was normal and there was no evidence of radicular symptoms, but referred pain to the thigh. The impression was chronic low back pain. In February 2001, a second hearing was held before the Board on the claim for a back disability, which was not yet service connected. The Veteran described back pain, which at times caused him to stop what he was doing. In March 2001, D.K.P., DC, a private chiropractor described flexion to 40 degrees, extension to 10 degrees, and right and left lateral flexion to 20 degrees. The straight leg raising test was positive as were other tests for back pain. It was noted that the Veteran was unable to sit, stand, or walk for any length of time without experiencing a severe exacerbation of his condition. The private chiropractor expressed the opinion that the Veteran was restricted in daily activities and the Veteran was unable to sit, stand, or walk for longer than 15 to 20 minutes without a flare-up. VA records show that April 2001 the Veteran complained of low back pain after a lifting-type injury at work. The findings were decreased range of motion due to pain, which was not quantified, normal lordosis and normal sensory evaluation, balance, and coordination. The reflexes were symmetrical. The assessment was musculoskeletal strain of the back. In September 2001, the private chiropractor, D.K.P., DC, stated that on reevaluation the findings were the same, namely, flexion to 40 degrees, extension to 10 degrees, and right and left lateral flexion to 15 degrees. And his opinion was unchanged. On VA examination in March 2002, the Veteran described back pain as a spasm across the lower back that sometimes radiated to the lower extremities. The pain was constant with frequent exacerbation. The Veteran stated that the pain is aggravated by any movement and eased up when he stood up or with a pain reliever. He did not use braces, crutches, canes, wheelchair, or walker. The Veteran stated that he could not sit for more than three hours or walk more than 100 feet before the pain worsened. On evaluation, the Veteran was in no acute distress. He walked without a limp or discomfort. Gait was normal and there was no evidence of pain. There was no evidence of a back deformity and there was no pain or tenderness on palpation. There was no evidence of acute inflammation or muscle spasm on palpation. Flexion was to 80 degrees, extension was to 25 degrees, rotation was to 35 degrees and lateral flexion was to 30 degrees. The deep tendon reflexes were equal and symmetrical at the knee and ankles. The Veteran had good muscle tone, tendon reflex, strength, and a neurovascular exam. There was no evidence of muscle atrophy or deformity. He had good tendon reflexes and neurovascular examination. The VA examiner stated that except for subjective pain and subjective decreased range of motion, the examination was unremarkable. On VA re-examination in August 2002, the VA examiner stated that the physical findings remained unchanged from April 2002. After a review of X-rays, the diagnosis was lumbar spine degenerative disc disease. In October 2003, a private chiropractor, K.L.K., DC, evaluated the Veteran for low back pain. The Veteran stated that it took 15 minutes to get out of a bed in the morning. The straight leg raising test was positive for back pain. The reflexes were equal and 2+. Flexion was to 75 degrees, extension was to 30 degrees, right and left lateral flexion to 35 degrees and right and left lateral rotation were to 30 degrees. VA records show that in August 2004 at a private emergency room the Veteran was seen for acute back pain and spasm. On follow up with VA in August and in September 2004, the Veteran denied radiating pain to the lower extremities. There was no muscle spasm. There was pain with range of motion. There was no pain with the straight leg raising test. The assessment was lumbar strain. After X-rays, there were no structural alignment problems to explain the Veteran's back pain and antalgic gait. On VA examination in October 2004, the Veteran complained of constant, sharp pain with radiation to the hips and to the toes bilaterally. He also had associated stiffness and weakness in the lumbar region. The Veteran complained of flare-ups of severe sharp low back pain with radiation to the hips and to the toes, occurring daily and lasting for about one and a half hours precipitated by walking and alleviated by medication. The Veteran reported very limited mobility with flare-ups, particularly walking or bending. He used a back brace daily and had been using a cane for about two months for walking. He denied unsteadiness or bowel or bladder control problems. The Veteran stated that he had quit working for about two months because of his back and neck problems. The Veteran reported difficulty in activities of daily living, specifically while showering and dressing. On examination, the Veteran walked without apparent distress. He used a cane and had no apparent limp. There was no evidence of muscle spasm. There was mild tenderness in the paravertebral muscles. There was no obvious deformity of the curvature of the spine. Forward flexion was to 80 degrees with pain at 60 degrees and no additional limitation after repetition. Extension was to 30 degrees. Right and left lateral flexion was to 30 degrees and right and left lateral rotation were to 45 degrees. During flare-ups, the examiner estimated an additional 10 percent limitation of motion secondary to pain and mild functional impairment. On neurological evaluation of the lower extremities, there was no sensory deficit. Motor strength was 5/5 and the deep tendon reflexes were 2/4 bilaterally. The straight leg raise test was negative bilaterally. After a review of X-rays and a MRI, the diagnosis was chronic low back strain secondary to degenerative arthritis of L3-5 with disc protrusion at L5-S1, but no evidence of radiculopathy. VA records show that in December 2004 the Veteran was seen for back pain. The Veteran walked without an assistive device. There was no abnormal sensation or balance problem. The tendon reflexes were normal. In May 2005, the Veteran had not returned to work since August 2004 because he had not received a work release from his doctor. Records of a private physician show that in October 2005 and in November 2005 the pertinent finding was a normal neurological review. In November 2005, the private physician stated that the Veteran had morning stiffness, back pain, and muscle spasms, affecting his ability to perform activities of daily living. The pertinent findings were tenderness and tense muscles of the back. The private physician made similar statements in June 2006 and in June 2008. In June 2008, the private physician also stated that the Veteran had been unable to engage in any type of employment activity, requiring bending, lifting, or walking. On November 18, 2005, a physical therapist evaluated the Veteran for low back pain with numbness, weakness, and tingling in the lower extremities without bladder dysfunction or gait disturbance. Standing posture was fair. There was no lateral tilt. Flexion was to 40 degrees, extension was to 10 degrees, and right and left side gliding was to 10 degrees. The straight leg raising test was positive. Sensation to light touch was normal. The tendon reflexes were equal. Motor strength was 4 of 5 in the muscles of the thigh. VA records show that in February 2006 the Veteran complained of back pain extending to the hips. On VA examination in June 2006, the Veteran complained of daily flare-ups with stiffness, weakness and decreased mobility and pain in the lower back with numbness and tingling in the toes. He wore a back brace daily. He denied bowel or bladder dysfunction. He could walk 1/3 of a mile and he could stand for 15 to 20 minutes. He had not worked for 16 weeks at the time of the examination due to his low back condition and his daily activities were limited. Physical examination revealed that the Veteran walked with an antalgic gait with slow progression without any assistive devices. The Veteran's posture was erect. He had stiffness and spasms across the lower back. Flexion was to 45 degrees. The Veteran did not attempt extension as he indicated it was too much strain on his back. Right and left lateral flexion and right and left lateral rotation were from to 15 degrees. He had limited motion due to pain. The neurological evaluation showed no evidence of muscle atrophy. There was no difference in the circumference at mid-thigh and at mid-calf. On sensory examination, the Veteran stated that he could not feel light touch on the lateral aspect and the medial aspect of the lower legs. The deep tendon reflexes were 2+ bilaterally. The Babinski sign was negative. The Romberg test was negative. The Lasegue sign was positive at 5 degrees bilaterally. The VA examiner stated that is hard to estimate the limitation of motion, because of the Veteran's lack of effort. After a review of X-rays and a MRI, the diagnosis was acute lumbosacral strain without radiculopathy. In June 2006, the Veteran's employer reported that the Veteran was on medical leave since March 2006 and had been officially unable to continue his employment at a health care center due to a back injury that he sustained in service. In March 2007, the Veteran was seen at a private emergency room for acute back pain. In June 2008 on a VA neurological examination, the Veteran complained of pain and numbness in the lower legs and numbness and pain on the front and back of his thighs and calves. On motor examination, the mid-calves and thighs were equal and symmetrical. Sensory examination showed dullness on the front and the back of the thighs. He had dullness on the calves. The knee reflexes were 3+ and the ankle reflexes were 3+. The Romberg test was negative and the Lasegue sign was not elicited. The Veteran's gait was slow without any assistive devices. After a review of X-rays and MRIs of the lumbar spine, the VA examiner found no evidence of the right or left lower extremity radiculopathy and no evidence of active denervation phenomenon based on the needle EMG examination, which was essentially normal. The diagnosis was subjective peripheral neuropathy of the lower extremities, not supported by EMG and MRI. In July 2008, the Veteran's spouse stated that the Veteran was in constant pain and that she helped the Veteran with his shoes and socks. VA records in August 2008 show that the Veteran was seen for low back pain. The sensory evaluation was intact to light touch. On VA examination in November 2008, the Veteran complained of radiating back pain. Flexion was to 40 degrees with pain at 30 degrees. Extension was to zero degrees. Right and left lateral flexion was to 15 degrees with pain at 10 degrees. Right and left rotation was to 20 degrees with pain at 10 degrees. Analysis Before June 27, 2006, the question is whether the criteria for the next higher rating, 20 percent, were met under the old criteria or the revised criteria. Diagnostic Code 5292 Under the old criteria for rating limitation of motion of the lumbar spine, Diagnostic Code 5292 provided a 20 percent for moderate limitation of motion. And there was no change in the rating criteria under Diagnostic Code 5292 before and from September 23, 2002, to September 26, 2003. As previously explained the word "moderate" is not defined in the Rating Schedule. Rather a decision of the Board must consider all the evidence of record. 38 U.S.C.A. § 7104(a). And evidence must be weighed in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. From September 26, 2003, and currently, the General Rating Formula for Diseases and Injuries of the Spine replaced the orthopedic manifestations under Diagnostic Codes 5292. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a 20 percent rating are forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria for a 40 percent rating are forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The evidence favorable to the claim for the next higher rating based on limitation of motion of the lumbar spine under either Diagnostic Code 5292 or the General Rating Formula for Diseases and Injuries of the Spine consists of the following: VA records show that during hospitalization in October and November 1994, flexion was to 50 degrees; in March 2001 and in September 2001 a private chiropractor described flexion to 40 degrees flexion and extension to 10 degrees and lateral flexion, left and right, to 15 degrees; and on November 18, 2005, a private physical therapist reported flexion to 40 degrees, extension to 10 degrees, and right and left side gliding to 10 degrees; on VA examination in June 2006, flexion was to 45 degrees; and on VA examination in November 2008, flexion was to 40 degrees. As for the evidence before November 2005 as to whether flexion to either 50 degrees or to 40 degrees more nearly approximated or equated to "moderate" limitation of motion under the old Diagnostic Code 5292, the finding of 50 degrees of flexion during hospitalization for an unrelated health problem in 1994, followed by full range of motion two days after discharge from the hospital, and the next favorable finding was seven years later in 2001, when flexion was to 40 degrees on two occasions, does not represent a consistent disability picture when flexion was to 90 degrees in January 1998, to 65 degrees on VA examination in May 1999, to 80 degrees on VA examinations in March and in August 2002, to 75 degrees in October 2003, and to 80 degrees on VA examination in October 2004. Also except for extension to 10 degrees on two occasions in 2001, extension was measured as 30, 30, 30, and 30 degrees in May 1999, March 2002, October 2003, and October 2004, respectively; except for lateral flexion of 15 degrees on two occasions in 2001, lateral flexion was measured as 40, 35, 35, and 30 degrees in May 1999, March 2002, October 2003, and October 2004, respectively; rotation was measured as 45, 30, 30, and 30 degrees in May 1999, March 2002, October 2003, and October 2004, respectively, the measurements of flexion, extension, and lateral flexion in March and in September 2001 were not consistent with the disability picture before 2001 and after 2001 and that the findings of ranges of motion in 1998, 1999, 2002, 2003, and 2004, which are consistent one with the other, more accurately reflect range of motion over a period of 11 years, rather than the findings in 2001. As for whether the finding of 50 degrees in 1994 constituted pain on use or flare-up of symptoms with additional functional loss, the finding was not further quantified or qualified, so that the evidence was insufficient to determine the degree of an any additional functional loss due pain on use or due to flare-up of symptoms. And the Board is unable to draw any such conclusion based on the facts presented. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board must consider only independent medical evidence to support its findings rather than provide its own unsubstantiated medical conclusion) overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed.Cir.1998). As for whether the findings of 40 degrees on two occasions in 2001 constituted pain on use or flare-up of symptoms with additional functional loss, the findings were not further quantified, although the private chiropractor expressed the opinion that the Veteran could not sit or stand or walk for any length of time without a severe exacerbation. Again the evidence was insufficient to quantify the degree of any additional functional loss due pain on use or due to flare-up of symptoms. And the Board is unable to draw any such conclusion based on the facts presented. See Colvin, at 175. The Board therefore concludes that the findings of flexion to either 50 degrees or to 40 degrees has less probative value than the findings of flexion over the period from 1994 to 2004, and the preponderance of the evidence is against a finding that the disability picture before November 2005 more nearly approximated or equated to moderate limitation of motion of the lumbar spine under Diagnostic Code 5292 or flexion greater than 30 degrees, but not greater than 60 degrees, under the General Rating Formula for Diseases and Injuries of the Spine before November 2005, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and flare-ups. The Board does conclude that flexion to 40 degrees documented on November 18, 2005, is consistent with the current disability picture as flexion on VA examination in June 2006 was to 45 degrees and on VA examination in November 2008 flexion was also to 40 degrees. Diagnostic Code 5293 Under the old Diagnostic Code 5293, the criteria for a 20 percent rating were moderate symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle reflex, or other neurological findings appropriate with the diseased disc with recurring attacks. The Veteran's symptoms did not more nearly approximate or equate to a rating higher than 10 percent, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and repetitive motion, in the absence of evidence compatible with moderate attacks of sciatic neuropathy such as demonstrable muscle spasm (no demonstrable muscle spasm was found on VA examinations in May 1999, March 2002, and in October 2004), absent ankle reflex (the ankle reflex was 1+ in May 1999 and the deep tendon reflexes were present on VA examinations in March 2002 and in October 2004), or other neurological findings (motor strength was 5/5 and the straight leg raising was normal and there was no evidence of radicular symptoms on VA examination in May 1999; on VA examination in March 2002, the Veteran had good muscle tone and strength, there was no evidence of muscle atrophy or deformity, and good neurovascularization; on VA examination in October 2004, on neurological evaluation of the lower extremities, there was no sensory deficit, motor strength was 5/5, and the straight leg raise test was negative). Diagnostic Code 5295 Under the rating criteria for Diagnostic Code 5295, the Veteran's symptoms did not more nearly approximate or equate to a rating higher than 10 percent, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and repetitive motion, in the absence of evidence of evidence muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position (no demonstrable muscle spasm was found on VA examinations in May 1999, March 2002, and in October 2004; on VA examination in March 2002, there was no evidence of deformity; and on VA examination in October 2004, there was no obvious deformity of the curvature of the spine). Diagnostic Code 5293 and Incapacitating Episodes In the absence of incapacitating episodes, that is, a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, the criteria for a 20 percent rating had not been met. Alternatively, combining chronic orthopedic symptoms under Diagnostic Code 5292 and neurologic manifestations, the Board has already concluded that the criteria for a rating higher that 10 percent under either Diagnostic Code 5292 or 5295 had no been meet before November 2005. As for neurologic manifestations, on VA examination in May 1999, the deep tendon reflexes were 1+ at the knees and ankles. The extensor hallus longus motor strength was 5/5 bilaterally. The straight leg raising was normal and there was no evidence of radicular symptoms. On VA examination in March 2002, the Veteran's gait was normal. There was no evidence of deformity, acute inflammation, or muscle spasm. The deep tendon reflexes were equal and symmetrical at the ankles and knees. The Veteran had good muscle tone and strength, bilaterally. There was no evidence of muscle atrophy. The tendon reflexes were good as was the neurovascular examination. On VA examination in October 2004, there was no evidence of muscle spasm or obvious deformity of the curvature of the spine. On the neurological evaluation of the lower extremities, there was no sensory deficit. Motor strength was 5/5 and the deep tendon reflexes were 2/4 bilaterally. The straight leg raise test was negative, bilaterally. After a review of X-rays and MRI evidence, the examiner found no evidence of radiculopathy. In the absence of evidence of neurologic manifestations, a separate compensable rating cannot be assigned. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes As for the current criteria, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, replacing Diagnostic Code 5293, there was no change in the criteria for rating on the basis of incapacitating episodes. As previously concluded in the absence of incapacitating episodes, that is, a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, the criteria for a 20 percent rating had not been met. Alternatively, rating the disability under the General Rating Formula for Diseases and Injuries of the Spine, as the General Rating Formula became effective in September 2003, the revised criteria apply to the disability for the period from and after the effective date of the amendment. VAOPGCPREC 3-2000. In other words, the rating criteria do not apply before September 2003. The record shows that flexion was measured as 75 and 80 degrees in October 2003, and October 2004, respectively. Extension was measured as 30 and 30 degrees in October 2003 and in October 2004, respectively; lateral flexion was measured as 35 and 30 degrees in October 2003 and in October 2004, respectively; rotation was measured as 30 and 45 degrees in October 2003 and in October 2004, respectively. In October 2003, as 75+30+35+35+30+30 = 235 degrees is greater than 120 degrees, the criteria for the next higher rating based on combined range of motion have not been met. In October 2004, as 80+30+30+30+45+45 = 260 - 26 degrees (10 percent loss due to functional impairment due pain) = 234 degrees, which is greater than 120 degrees, the criteria for the next higher rating based on combined range of motion have not been met. As for rating based on muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, on VA examination in October 2004, the Veteran walked without apparent distress. There was no evidence of muscle spasm or of an obvious deformity of the curvature of the spine. As neither muscle spasm nor guarding was evident, the criteria for the next higher rating based on these criteria have not been met. As for a separate rating for objective neurologic abnormalities, on VA examination October 2004, on neurological evaluation of the lower extremities, there was no sensory deficit. Motor strength was 5/5 and the deep tendon reflexes were 2/4 bilaterally. The VA examine found no evidence of radiculopathy. In the absence of evidence of objective neurologic abnormality, a separate compensable rating cannot be assigned. As the Veteran's subjective complaints were not supported by the objective findings on the VA examinations, the Board finds the Veteran's subjective complaints not credible to the extent that the complaints support a rating higher than 10 percent before November 2005. In summary, before November 2005, the assigned 10 percent rating was in accordance with the rating criteria, prior to September 2002, from September 2002 through September 2003, and since September 2003. A Rating from November 2005 and before August 2008 In a rating decision in May 2007, the RO increased the rating for the disability of the lumbar to 20 percent under the General Rating Formula, effective June 27, 2006, the date of VA examination. As already concluded, the criteria for a 20 percent rating under the General Rating Formula were met from November 18, 2005. Under the General Rating Formula, the criteria for the next higher, rating 40 percent rating are forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. On VA examination in June 2006, flexion was from 0 to 45 degrees. The VA examiner stated that it was not possible to estimate any additional limitation of motion, because the Veteran was reluctant and did not try. Based on what was found, 45 degrees of flexion does not more nearly approximate or equate to 30 degrees or less, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, and painful movement under 38 C.F.R. §§ 4.40 and 4.45 and repetitive motion, the criteria for the next higher rating based on limitation of flexion have not been met. Also, under the General Rating Formula, a separate rating could be assigned for objective neurologic abnormalities. On neurological evaluation in June 2006, there was no evidence of muscle atrophy. The deep tendon reflexes were 2+, bilaterally. The Babinski sign was negative. The Romberg test was negative. The Lasegue sign was positive, that is, for pain. After a review of X-rays and a MRI, the diagnosis was acute lumbosacral strain without radiculopathy. In June 2008, on a neurological evaluation, after a review of X-rays and MRIs, there was no evidence of right or left lower extremity radiculopathy and no evidence of active denervation phenomenon based on an EMG examination, which was essentially normal. The diagnosis was subjective peripheral neuropathy that was not supported by EMG and MRI. In the absence of evidence of objective neurologic abnormality, a separate compensable rating cannot be assigned. Alternatively, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the criteria for rating on the basis of incapacitating episodes are incapacitating episodes, that is, a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician, having a total duration of at least four weeks but less than six weeks during the past 12 months. In August 2006, the Veteran's employer reported that the Veteran was on leave and had been officially unable to continue his employment at a health care center due to a back injury that he sustained in service. In November 2005 and in June 2008, private physician stated that the Veteran periodically used a cane and knee and back braces, as well as orthopedic shoes. The Veteran also required the assistance with activities of daily living, such as dressing. Although there was a period that the Veteran was on medically leave because of his back and that he was being seen by a physician, there is no evidence the Veteran was on bed rest prescribed by a physician for a total duration of at least four weeks but less than six weeks during the past 12 months, and the criteria for a rating higher than 20 percent based on incapacitating episodes have not been met. As the Veteran's subjective complaints were not supported by the objective findings on the VA examination, the Board finds the Veteran's subjective complaints not credible to the extent that the complaints support a rating higher than 20 percent. In the absence of evidence of severe limitation of motion of the lumbar spine under Diagnostic Code 5292, or severe symptoms compatible with sciatic neuropathy under Diagnostic Code 5293, or severe lumbosacral strain under Diagnostic Code 5295 or neurological manifestations or objective neurological abnormality the criteria for the next higher rating have not been met. While back pain is the symptom that affects the Veteran the most, the pain does not raise to the level of the criteria for the next higher rating. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). To this extent, the Board places greater weight on the objective findings of the examination than the Veteran's subjective complaints of pain. 38 C.F.R. §§ 4.40, 4.45. The assigned 10 percent rating before November 2005 was the minimum compensable rating for a disability of the lumbar spine. 38 C.F.R. § 4.59. In summary, from November 2005 and before November 18, 2008, the assigned 20 percent rating was in accordance with the rating criteria in effect before and since September 2003. Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111,115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability of the lumbar spine. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule under the old criteria and revised criteria and the assigned schedular ratings are therefore adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The Veteran has a pending claim for a total disabled rating for compensation based on individual unemployability. ORDER An initial rating higher than 10 percent for degenerative disc disease of the lumbar spine before November 18, 2005, is denied. An initial rating of 20 percent for degenerative disc disease of the lumbar spine from November 18, 2005, is granted. An initial rating higher than 20 percent for degenerative disc disease of the lumbar spine from November 18, 2005, to November 13, 2008, is denied. REMAND The Veteran seeks service connection for a cervical spine disability to include as secondary to service-connected degenerative disc disease of the lumbar spine. In the Joint Motion granted by the Court, the parties agreed that the VA examination relied on by the Board to deny the claim was inadequate. As the evidence of record is insufficient to decide the claim, further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran to determine: Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability of less than 50 percent) that any current disability of the cervical spine: a). Is related to an injury in service in 1976; alternatively, b). Is caused by or aggravated the service-connected disability of the lumbar spine? In formulating the opinion, the VA examiner is asked to consider that the term "aggravation" means a permanent increase in the claimed disability, that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The Veteran's file must be made available to the VA examiner. 2. After the requested development is completed, adjudicate the claim. If the benefit sought is denied, then furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs