Citation Nr: 1316084 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-14 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating in excess of 40 percent disabling for low back strain with post lumbar fusion, S-1 nerve root compression, and intervertebral disc syndrome (a back disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1971 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction over this claim is currently with the RO in Roanoke, Virginia. During the pendency of the appeal, the RO granted a temporary total rating based on the need for convalescence following a surgical procedure performed in March 2009. As such, the Board's adjudication of the service-connected back disability will not include discussion of the appropriate disability rating during the period from March 17, 2009 to June 30, 2009 since the Veteran is already in receipt of a 100 percent evaluation for that period. See also AB v. Brown, 6 Vet. App. 35 (1993) (the veteran will generally be presumed to be seeking the highest rating available, and it follows that a partial grant of an increased rating does not terminate an appeal). In his April 2009 substantive appeal, the Veteran requested a personal hearing before a member or members of the Board. In a subsequent letters sent to the Veteran in September 2012 and February 2013, the RO informed the Veteran of Board hearings scheduled in October 2012 and March 2013, respectively. Each time, he failed to appear. Accordingly, the hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.702 (2012). In this regard, an additional, detailed analysis is included in the Duties to Notify and Assist section of this decision. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issues of separate disability ratings for neurological impairment of the bilateral lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT For the entire period on appeal, the Veteran's back disability did not manifest in any unfavorable ankylosis or any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent disabling for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In 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 and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to initial adjudication. A March 2008 letter explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. Substantially compliant notice was also sent in January 2009, and the claim was last readjudicated in a March 2012 supplemental statement of the case, thereby curing any notice deficiency. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the Veteran's service treatment records and pertinent post-service treatment records, including VA and private treatment reports, have been secured. The RO arranged for VA QTC examinations in April 2008, September 2009, and October 2011. These examinations, taken together, are found to be adequate for rating purposes of the issue adjudicated herein. The examiners reviewed the Veteran's medical history and complaints, made clinical observations, and rendered opinions regarding the severity of the disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Under 38 C.F.R. § 20.704(d) (2012), if an appellant (or when a hearing only for oral argument by a representative has been authorized, the representative) fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. No further request for a hearing will be granted in the same appeal unless such failure to appear was with "good cause" and the cause for the failure to appear arose under such circumstances that a timely request for postponement could not have been submitted prior to the scheduled hearing date. In this case, the Veteran was notified of a Travel Board hearing at the Roanoke RO on October 30, 2012. On October 9, 2012, the Veteran called the RO and stated that he did not have the transportation to appear at the scheduled Board hearing. Instead, he requested a Videoconference hearing at the Hampton VA Medical Center. On October 31, 2012, a day after the scheduled Board hearing, the Veteran's representative requested to reschedule the Travel Board hearing due to severe weather from Hurricane Sandy. Again, the Veteran was notified of a Travel Board hearing at the Roanoke RO on March 11, 2013. On February 21, 2013, the Veteran called the RO to request that his Board hearing be conducted via telephone as he is unable to drive or find transportation to the hearing. Here, the Veteran has demonstrated that arrangements for transportation for VA QTC examinations have been coordinated in the past. Indeed, it is clear from the record that while the Veteran asserted he is unable to secure transportation to the hearing, he attended three VA QTC examinations during the appeal period. This only serves to bolster the finding that the Veteran could have ensured transportation to the hearing location as he (or others) had clearly accomplished in the past. In this regard, it is a well-settled principle that VA's duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The fact that the Veteran informed the RO of his inability to attend the hearing due to a lack of transportation does not constitute good cause for not appearing at the hearing. Indeed, the Veteran has been afforded two opportunities to appear before the Board and participate in the claim. With respect to the Veteran's request for a Board hearing via telephone, in light of the detailed nature of the rules governing the procedure (including location) of Board hearings, the Board finds that the absence of such provisions means that the Board is not required to create such accommodations on a case-by-case basis. Beyond the above, it was the Veteran's failure to make the necessary accommodations that caused the inability to attend the scheduled hearings. Because of that failure to make arrangements prior to the hearing, no good cause is shown. If the Veteran had attempted to make such transportation arrangements prior to the hearing, and something went wrong (i.e., the car broke down, etc.), this may have provided a basis to find good cause and reschedule the hearing. In short, good cause has not been shown to delay adjudication of this appeal in order to reschedule a Board hearing. The Board has also reviewed Part I Chapter 4 of the VA Adjudication Procedures Manual, the M21-1MR (2005) including section (1)(i) which provides that the person requesting the hearing and witnesses are expected to appear in person at the hearing. This provision states that an exception may be made for extenuating circumstances that prevent him/her from attending, such as incarceration or a serious medical condition. M21-1MR, part I, ch.4, § 4-1(i) (2005). Similarly, the Board has considered the provision which provides that the claimant or his/her representative can present documentary evidence as well as oral testimony at the hearing, and bring witnesses to the hearing to provide testimony, or make arguments and contentions with respect to the facts and applicable law. M21-1MR, part I, ch.4, § 4-1(j) (2005). Chapter 4 of the M21-1MR nowhere refers to the procedures or provisions for Board hearings. Indeed, all references are to a Decision Review Officer or a Veterans Service Center Manager designee; these are VA employees who are not members of the Board. Furthermore, Chapter 4 specifically refers to procedures for preparation of a transcript of the hearing and placement of that transcript in the claims folder if the case will be forwarded to the Board. M21-1MR, part I, ch.4, § 5 and § 6 (2005)). Clearly, the provisions of the M21-1MR, part I, Ch.4, § 4-1(i) and (j) do not apply to hearings by a member of the Board or replace the rules of the Board found in 38 C.F.R. Chapter 20. Also clearly defined by VA regulations is the availability of informal hearings. Copies of both the September 2012 and February 2013 letters informing the Veteran of the Board hearings scheduled for October 2012 and March 2013, respectively, were sent to the Veteran's representative. Indeed, the Veteran is represented and his representative has provided written argument on behalf of the Veteran as recently as April 2013. In that April 2013 argument, the Veteran's representative did not request an informal hearing. For that matter, the Veteran's representative did not request that the Veteran's Board hearing be rescheduled. Also, significantly, the representative cited to regulation and case law in the argument, and the Board thus assumes that the representative is familiar with the applicable regulations and case law. This lack of any request for an informal hearing or even any mention of the hearing indicates to the Board that there is simply no basis for having a hearing in this case and that the Veteran does not desire an informal hearing as provided for by regulation. In summary, VA has discharged its duty to provide the Veteran with a hearing before a member of the Board. As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield, 444 F.3d at 1328. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Back Disability Rating Analysis Service connection for a back disability was granted in a March 1975 rating decision that assigned a 10 percent evaluation. When the Veteran submitted a claim for a higher rating for his service-connected back disability in February 2008, he was rated at 40 percent disabling. The RO continued the Veteran's evaluation of 40 percent disabling for a back disability in an August 2008 rating decision, which gave rise to this appeal. In October 2009, the RO granted a temporary total rating (100 percent) for the back disability from March 17, 2009 to June 30, 2009. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. For the purposes of this claim, the General Rating Formula for Diseases and Injuries of the Spine provides a 40 percent disability rating for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003), for the purposes of this claim, provides a 40 percent disability rating for IVDS 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 for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). The Board finds that the criteria for a rating greater than 40 percent disabling for the Veteran's back disability (which includes intervertebral disc syndrome) have not been met. To meet the 50 percent disability criteria, the Veteran must demonstrate that his back disability resulted in unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a. In this respect, the competent lay and medical evidence, to include VA QTC examinations of the Veteran's spine in April 2008, September 2009, and October 2011, did not demonstrate that the Veteran's entire thoracolumbar spine was fixed in flexion or extension resulting in symptoms such as difficulty with walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation. In addition, range of motion of the thoracolumbar spine during these examinations did not approximate unfavorable ankylosis of the entire thoracolumbar spine, even with consideration of functional loss due to pain, as required for a 50 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca at 206-7. The weight of the evidence demonstrates that his back disability is not manifested by unfavorable ankylosis of the thoracolumbar spine during the appeal period, and a 50 percent disability evaluation is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. A 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted as the evidence does not demonstrate that the Veteran experienced incapacitating episodes of degenerative disc disease having a total duration of at least 6 weeks in any given 12-month period, as defined by VA regulation (bed rest prescribed by a physician and treatment by a physician). During the April 2008, September 2009, and October 2011 VA QTC examinations, the Veteran denied having any incapacitation. While the Veteran's representative, in an April 2013 brief, indicated that the Veteran has had incapacitating episodes within the last 12 months and prior, he did not specify the duration of those incapacitating episodes. Indeed, evidence against the Veteran's claim is included in VA treatment reports, which do not indicate that he was prescribed bed rest by a physician at any time (other than during a period of surgery for which the Veteran received a temporary total rating based on the need for convalescence) for his back disability. In short, the Board finds that the statement as to experiencing incapacitating episodes is not credible and the weight of the credible and probative lay and medical evidence does not demonstrate that the Veteran had more than 6 weeks of acute signs and symptoms that required bed rest prescribed by a physician, and an evaluation in excess of 40 percent is not warranted for the appeal period. The Board has also considered the Veteran's statements that his disability is worse than currently rated. In this case, the Veteran is competent to report symptoms, such as back pain, because this requires only personal knowledge as it comes to him through his senses. Layno at 470. However, there is no proof that he has unfavorable ankylosis as contemplated by the regulation. The Board has also looked at other diagnostic codes for rating the Veteran's back disability. See Schafrath, 1 Vet. App. at 589. In this regard, the evidence of record does not demonstrate other neurologic manifestations of the back disability, such as bowel or bladder impairment. Regardless, a discussion of separate evaluations for bilateral lower extremity neurological impairment, based on the Veteran's back disability as manifested neurologically is included in the Remand section below. Separate ratings are also possible in cases resulting in certain types of scarring. Here, there is evidence of scars from surgical procedures; however, in both the September 2009 and October 2011 VA QTC examinations, these scars were not painful on examination, were superficial with no underlying tissue damage, had no skin breakdown, inflammation, edema, or keloid formation, and were not disfiguring. Thus, there is no evidence to support the assignment of a separate compensable rating for surgical scars. After careful review of the available diagnostic codes and all the evidence of record, lay and medical, the Board does not find evidence that the rating assigned for the Veteran's back disability should be increased for any other separate period based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the period on appeal. As such, an evaluation in excess of 40 percent disabling for a back disability are not warranted. See Fenderson, 12 Vet. App. at 119; Hart, 21 Vet. App. at 509. Hence, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Lastly, it is important to note that the 40 percent evaluation was a protected evaluation based upon the old rating criteria. Extraschedular Considerations The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based 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 periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 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 claimant's level of disability and symptomatology and is found inadequate, the Board must 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 VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's back disability has manifested in arthritis (diagnosed as intervertebral disc syndrome), painful movement, and limited range of motion. The schedular criteria for rating the back disability (General Rating Formula for Diseases and Injuries of the Spine and Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the back to the rating schedule, the degree of disability of the back throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. Here, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the back disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating in excess of 40 percent disabling for a back disability is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims of separate disability ratings for neurological impairment of the bilateral lower extremities, as due to the service-connected back disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). In this regard, with respect to the Veteran's claim for a higher evaluation of his back disability, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath at 595. As mentioned above, under Note (1) of the General Rating Formula, any associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993). In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. Diagnostic Code 8620 refers to neuritis of the sciatic nerve while Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. It is important to note that the Board found the April 2008, September 2009, and October 2011 VA QTC examinations to be adequate only as they pertain to the Veteran's claims for a higher evaluation of his back disability as manifested orthopedically. However, as explained below, a remand is necessary to determine whether separate ratings for bilateral lower extremity neurological deficiencies are warranted and if so, to ascertain the severity of those deficiencies. In the April 2008 VA QTC examination report, the Veteran complained of radiating pain to the hips. The examiner indicated that the Veteran had positive, bilateral straight leg raising test, and sensory deficits of the bilateral lateral thighs and bilateral lateral legs. The Veteran had motor weakness of the bilateral hip abduction and adduction, bilateral knee extension, bilateral feet extension, and bilateral great toe extension. He had hypoactive bilateral knee and ankle jerk. The most likely affected peripheral nerve is the sciatic nerve. During the September 2009 VA QTC examination, the Veteran reported having weakness of the leg and foot. The examiner indicated that the Veteran had positive, bilateral straight leg raising test, and impaired sacral spine sensory function. Sensory deficit of the right lateral leg was noted; however, the examiner did not comment on whether the Veteran had left lateral leg sensory deficit. He had normal bilateral lower extremity reflexes and no signs of pathologic reflexes. The examiner noted that the most likely affected peripheral nerve is the sciatic nerve. In the October 2011 VA QTC examination report, Veteran complained of having weakness of the leg and foot; however, there was no radiating pain on movement. The examiner indicated that the Veteran had negative, bilateral straight leg raising test, and sensory deficits in the right lateral thigh and leg. Again, there was no comment on whether the Veteran had left lateral leg or thigh sensory deficit. At that time, his reflexes were normal, bilaterally, with no signs of pathologic reflexes. Again, the examiner noted that the most likely affected peripheral nerve is the sciatic nerve. Based on the treatment reports, and particularly, the April 2008, September 2009, and October 2011 VA examinations, the extent and severity of the Veteran's bilateral neurological conditions are still unclear based on the Veteran's subjective reports of radiating pain and leg and foot weakness, and the conflicting objective evidence indicating a neurological deficiency. In short, the level of severity of the Veteran's bilateral lower extremity neurological deficiency, if any, is not clear from the medical evaluations and lay statements of record. As such, the Board finds that an additional VA examination is required in order to identify all chronic and neurologic bilateral lower extremity manifestations of the Veteran's service-connected back disability and to determine the current severity of those aspects of disability. Accordingly, the issues of separate disability ratings for neurological impairment of the bilateral lower extremities are for REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assist in determining the neurological manifestations of the service-connected back disability. The relevant documents in the claims file should be made available to the VA examiner. All necessary tests should be accomplished. After the review of the claims file, an interview with the Veteran, a physical examination, and any further development as deemed appropriate, the VA examiner should provide findings on the following and include an appropriate rationale for those findings: a) describe and diagnose any additional chronic neurologic bilateral lower extremity manifestations of the service-connected back disability (if any). A finding that the Veteran does, or does not, have a neurological problem associated with the bilateral lower extremity associated with the back would be of great assistance to the Board; b) evaluate (if a bilateral lower extremity disability associated with the back is found) the extent and severity of any diagnosed neurologic deficiencies of the bilateral lower extremity by rendering an opinion as to whether it more nearly approximates incomplete paralysis of the sciatic nerve (that is mild; moderate; moderately severe; or severe, with marked muscular atrophy) or complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost; and c) if the Veteran's neurologic impairment, if any, is wholly sensory, render an opinion as to whether it more nearly approximates mild or moderate impairment. 2. After completion of the above and any additional development deemed necessary, the claims for separate disability ratings for neurological impairment of the bilateral lower extremities, should be adjudicated in light of all the evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 3. The AOJ is at liberty to explain the basis of the 40 percent evaluation based upon the former criteria and determine how that 40 percent evaluation contemplated neurologic deficit. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs