Citation Nr: 1316760 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-16 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to increased evaluations for degenerative changes of the lumbar spine, initially evaluated as 10 percent disabling from November 1, 2004 until October 31, 2008, evaluated as 20 percent disabling from November 1, 2008 to August 10, 2011 and evaluated as 40 percent disabling thereafter. 2. Entitlement to an initial compensable evaluation for left ankle strain prior to August 11, 2011 and a rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty form June 1982 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal form rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire in June 2005 and March 2007. The Veteran received notice of the initial decision in July 2006. In February 2009 and January 2011, the Board remanded this case for further development. In October 2008, a hearing was held before a Veterans Law Judge (VLJ) who is no longer employed by the Board. As a result, in a February 2013 letter, the Veteran was asked whether he desired to have a new hearing and advised that if he did not respond to the letter within 30 days, the Board would assume that he did not want another hearing and would proceed accordingly. Thus, as no response has been received from the Veteran, the Board will proceed to decide the claims on appeal. In a March 2012 rating decision, the RO granted an increased, 40 percent rating for degenerative changes of the lumbar spine and an increased, 10 percent rating for left ankle strain. Both higher ratings were made effective August 11, 2011. The Board notes when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In the instant case, neither the Veteran nor his representative have alleged that she is unemployable due to her service-connected disabilities and there is no medical evidence indicating that her service connected disabilities render her unemployable. The VA Vocational Rehabilitation documentation of record shows that the Veteran was actively receiving services at least until March 2009 in an effort to return to the workforce and in an August 2007 Vocational Rehabilitation assessment, she was found not to have a serious employment handicap. It was noted that with proper education, she should have no trouble obtaining suitable employment. Also, although an August 2011 VA examiner did find that the Veteran would not likely be able to perform any physically active jobs due to her back pain and spasms and that sedentary work might also be affected, the examiner did not find that sedentary work would be precluded. Thus given the affirmative Vocational Rehabiliation finding and the lack of any contrary findings or allegations of record (i.e. findings or allegations that the Veteran is actually unemployable or that she could not perform even sedentary work), the Board finds that a claim for a TDIU (as part and parcel of the claims for increase) has not been raised. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, from November 1, 2004 to August 9, 2011, the Veteran had forward flexion of the thoracolumbar spine between 30 and 60 degrees; forward flexion to 30 degrees or less, anklylosis, incapacitating episodes and separately ratable neurological impairment were not shown. 2. From August 10, 2011, the Veteran had forward flexion of the thoracolumbar spine to 30 degrees or less; anklylosis, incapacitating episodes and separately ratable neurological impairment were not shown. 3. Prior to August 10, 2011, the Veteran's left ankle disability was manifested by mild limitation of motion; moderate limitation of motion was not shown. 4. From August 10, 2011, the Veteran's left ankle disability was manifested by moderate limitation of motion; marked limitation of motion was not shown. CONCLUSIONS OF LAW 1. From November 1, 2004 August 10, 2011, the criteria for an initial 20 percent but no higher rating for degenerative changes of the lumbar spine are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.71a, Diagnostic Code 5243 (2012). 2. From August 10, 2011, the criteria for an evaluation in excess of 40 percent for degenerative changes of the lumbar spine are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.71a, Diagnostic Code 5243 (2012). 3. Prior to August 10, 2011, the criteria for an initial compensable evaluation for left ankle strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.21(b), 4.7, 4.71a, Diagnostic Code 5271 (2012). 4. From August 10, 2011, the criteria for an evaluation in excess of 10 percent for left ankle strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.21(b), 4.7, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). A November 2004 letter explained the evidence necessary to substantiate the Veteran's initial claims for service connection for low back disability and left ankle disability. This letter also informed the Veteran of her and VA's respective duties for obtaining evidence. In addition, the letter was provided prior to initial adjudication of the claim. The RO granted the claims for service connection for low back disability and left ankle disability in June 2005. Thus, the claims were not only substantiated, they were proven. The purpose of VCAA notice, originally provided to the Veteran in November 2004 had been fulfilled. Thus no further VCAA notice was required with respect to the claims. The current appeal arises from a notice of disagreement with the assignment of an initial rating of 10 percent for the low back disability and the assignment of an initial noncompensable rating for the left ankle disability. Thus, there is no further duty to notify under the VCAA. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). Additionally, in March 2009, the Veteran was provided with a separate VCAA notice letter in relation to her claims for increase, including notice of how disability ratings and effective dates are assigned. Regarding the Veteran's hearing before the Board, 38 C.F.R. 3.103(c)(2) requires that a VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the Veteran's October 2008 hearing, all parties agreed as to the issues on appeal, including the issues herein decided. The parties also had a specific discussion on the evidence contained in the record and what pertinent evidence might still be outstanding. Additionally, the record was held open for an additional thirty days to allow for the Veteran to attempt to obtain pertinent records of low back treatment from her chiropractor along with submission of any other evidence. Additionally, the Board's subsequent February 2009 and January 2011 remands further instructed the RO to obtain outstanding VA treatment records, Vocational Rehabilitation records and to attempt to obtain any appropriately identified additional private treatment records. There is no indication the Veteran has any additional evidence to submit or that there is any additional evidence for VA to obtain regarding the severity of the left ankle and low back disabilities, and the status of the disabilities has been appropriately assessed by the VA examinations to date. Thus, the Board finds that the Board's duties under Bryant have been met. Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence pertinent to his claim. With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, a letter from a private chiropractor summarizing lumbar spine treatment the Veteran received, the reports of VA examinations and the assertions of the Veteran and her representative, including her hearing testimony. The most recent January 2011 remand instructed the RO/AMC, upon receiving any necessary releases, to attempt to obtain any additional VA treatment records and private treatment records, including chiropractic records and to afford the Veteran more contemporaneous VA examinations. The RO/AMC subsequently updated the VA treatment records and asked the Veteran to submit or identify any additional private medical evidence. The Veteran has not submitted any additional private medical evidence and has not identified any additional private medical evidence for VA to obtain. Additionally, the Veteran was afforded adequate August 2011 VA examinations. Consequently, the RO/AMC appropriately complied with the remand instructions. The Board finds nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to her claim. Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Merits of claims The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability; such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In determining the current level of impairment, a disability must be considered in the context of the whole-recorded history. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). A claim such as this one, placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. Lumbar spine disability In a June 2005 rating decision, the RO granted service connection for degenerative changes of the lumbar spine L5-S1 and assigned a 10 percent rating effective November 1, 2004. Subsequently, in the 2012 rating decision, the RO granted an increased, 40 percent rating for degenerative changes of the lumbar spine and an increased, 10 percent rating for left ankle strain. Both higher ratings were made effective August 11, 2011. As the Veteran has not expressed satisfaction with the existing ratings assigned, her claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). Pursuant to the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (for rating of intervertebral disc syndrome). In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the general rating formula for diseases and injuries of the spine, outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. A 10 percent rating is warranted for incapacitating episodes of intervertebral disc syndrome having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent disability rating is warranted where the evidence reveals incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to Diagnostic Code 5243 defines an 'incapacitating episode' 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." As instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, the rater is to separately evaluate any associated objective neurologic abnormalities. Note (2) 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 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. In a November 2004 statement, the Veteran indicated that she first injured his back during physical conditioning in 1998. She then experienced recurrent issues with lower back pain throughout her military career. She reported that her current, constant back pain limited her ability to bend, reach, stretch, move and lift objects. It also made standing, sitting and lying in a prone position very difficult and uncomfortable. She indicated that her pain intensified during cross-torso movement and while bending forward or backward. At a December 2004 VA general medical examination, the Veteran reported chronic dull low back pain that became sharp with position changes such as bending, lifting heavy objects and prolonged standing. She reported that she was not able to lie flat on her back and had to lie on her side. She indicated that she occasionally had sharp, shooting pains down her right leg. The Veteran reported that initially she had had some numbness in her right leg. She reported that flare-ups occurred almost daily but were readily corrected with a change of position. Examination of the low back showed range of motion of 80 degrees flexion with moderate pain beginning at 50 degrees; 20 degrees extension; 15 degrees lateral flexion to the right; 20 degrees lateral flexion to the left and 30 degrees rotation bilaterally. The Veteran's gait was found to be within normal limits. The examiner commented that the Veteran would have a 10 to 20 degree loss of flexion during flare-ups or on repeated use. The diagnosis was chronic lumbar strain and an X-ray showed findings consistent with degenerative disk disease at the L5-S1 level. In a July 2006 notice of disagreement, the Veteran contended that the muscle spasms she experienced did result in an abnormal gait. She had been seeing a chiropractor weekly for more than a year to keep the pain and resulting issues within a tolerable level. She indicated that without such intervention, she was not able to walk with a normal gait nor was she able to maintain her body in a normal position, even while sitting. At a January 2007 VA joints examination, the Veteran reported that she used orthotics for her shoes. She was not working and walked between 1 1/2 and 2 miles daily with her dog. She indicated that she had experienced weight gain secondary to her various disabilities and inability to exercise. It was noted that the December 2004 X-ray had shown degenerative disc disease of L5-S1 with spondylosis. The Veteran reported chronic pain in the mid low back down to the sacrum. She stated that at times the pain could radiate up the back as well as into both hips. Occasionally, she had pins and needles sensation in the left posterior thigh while sitting. This would resolve with a position change, however. She reported flare-ups every night in which she was woken up by the pain, lasting 2 to 5 minutes. She indicated that she had a limited ability to turn her body when driving. She also had difficulty bending and lifting. She reported stiffness the first thing in the morning and had difficulty sleeping on her back. Her sitting tolerance was about 20 to 30 minutes. Physical examination showed that the Veteran was stiff from rising from a chair in the waiting room and walked slightly flexed forward at the hips with stiff feet and ankles. Neurological examination of the lower extremities was essentially normal with some tenderness with left ankle plantar flexion. The Veteran needed encouragement and cueing for effort during strength testing. Examination of the back showed a prominence of lordosis. There was tenderness to palpation of the lumbar spine from L3 down to the sacrum. There was some paraspinal muscle tenderness in the lumbar spine, with no spasm palpated. Forward flexion was 0 to 70 degrees with tenderness, extension 0 to 20 degrees with tenderness, lateral flexion right and left to 15 degrees with tenderness and rotation right and left to 15 degrees with tenderness. The pertinent diagnoses were chronic low back strain with chronic pain and degenerative disc disease, L5 to S1, with no radiculopathy symptoms. The examiner found that there was evidence of painful motion and reduced range of motion. There was also an absence of weakness. These findings were supported by the objective evidence and were consistent with the history and pathology of the disability. With flare-ups the pain was expected to cause an additional 5 to 10 degree loss of motion. May to July 2007 VA medical records show that the Veteran received physical therapy for low back problems. In May 2007, it was noted that she was currently walking .5 to 1 mile per day. She reported increasing pain with weight bearing, walking more than 1 mile, prolonged sitting or standing, lying supine or prone with knees extended and turning her trunk to look over her shoulder while driving. Physical examination showed tenderness to palpation/pressure in the bilateral lumbar paraspinal muscles, lumbar spinous processes, quadratus and lumborum/buttocks. The Veteran also demonstrated an occasional Waddell's sign with pain reaction out of proportion with palpation of the lumbar spine. Additionally, she demonstrated a non-antalgic gait without deviations for 200 feet. Spinal range of motion was standing flexion to 5 cm distance from the finger tips to superior patellar border, extension to 23 cm distance from the finger tips to the popliteal crease, side bending left and right to 14cm distance from fingertips to the knee joint line. Seated trunk rotation was 30 degrees to the right and 20 degrees to the left. Her gait was mildly antalgic and hesitant when ascending and descending stairs, alternating steps with a rail. The physical therapist found that the Veteran had decreased tolerance for functional/recreational mobility and prolonged positioning due to pain in multiple locations. In conjunction with the positive Waddell's sign, the therapist suspected that the Veteran could have a possible incentive for secondary gain in relation to her disability claims. In June 2007, the Veteran was noted to be able to do a supine/standing home exercise program that she had been given with intermittent cues for technique. She reported pain in the low back while demonstrating but showed no difficulty with transfer on and off a high mat and was able to perform active unilateral and bilateral straight leg raise without complaint. In July 2007, it was noted that the Veteran did not show up for her final physical therapy appointment but that the plan had been for her to cancel the appointment if she did not have any questions about her home exercise program. An August 2007 VA vocational rehabilitation narrative report indicates that the Veteran had reported chronic/constant low back pain that was aggravated by changes in position, like bending, lifting heavy objects and prolonged standing. She had indicated that she experienced daily flare-ups, could not sit in soft chairs and had to have lumbar support when sitting. She also had reported that she was unable to drive more than 1 1/2 hours. At a December 2007 DRO hearing, the Veteran reported constant low back pain. She indicated that she had trouble with forward flexion, even when driving. She had to be really careful turning to look behind her, especially turning toward the right, as her back was very stiff. The back was painful sitting down and she could not stand for more than a half hour or it would just freeze up. It would also freeze up at night if she rolled on to her back while sleeping. She would have to push herself up or roll over slowly and then go into a fetal position before stretching the back out until she could sit up. She indicated that she was not able to forward bend to touch her knees. She noted that she experienced some trouble when trying to do yoga and Pilates. The back would get pretty stiff and could seize up if she overflexed it in a direction that it was not prepared to go. The Veteran was not currently working and had not worked since her separation from service. She noted that at the time of separation, her back in particular was causing some problems because during the day her job was somewhat sedentary, involving computer work and a lot of meetings, and she always had to stand up during the meetings and move around a little bit, which was distracting to some of the sessions. During the October 2008 Board hearing, the Veteran reported low back pain, muscle spasms, stiffness, weakness and limited range of motion. She indicated that she had flare-ups approximately two to four times per week where she had difficulty getting out of bed in the morning or difficulty getting out of a chair in the afternoon. She indicated that she had to limit the time she worked on her computer doing schoolwork because of these flare-ups. After a couple of hours of sitting, she had to move around the house a little bit to loosen up her back before she could sit down again. She also noted that she was doing her schoolwork at home rather than at school because of her back problems. She did not use any assistive devices for her back. She indicated that she had been seeing a chiropractor every two weeks and that she had also received some physical therapy from VA. She indicated that she could not seem to sit or stand for more than 15 minutes. She noted that she took a steady dose of Tylenol for all of her orthopedic conditions. In a November 2008 letter, a private chiropractor indicated that he had treated the Veteran for four years. During this time, he had treated her once every two weeks on average. During each treatment, he had made significant corrections to her sacroiliac region due to recurring lower back pain and misalignment of her lower back skeletal structure. Based on his long-term treatment, the chiropractor found that forward flexion of the thoracolumbar spine was between 30 and 60 degrees; muscle spasms were severe enough to result in abnormal gait when the lower back was left unadjusted; and during the past 12 months, incapacitating episodes due to back pain had left the Veteran incapacitated for a period somewhere between two and four weeks. A May 2009 VA primary care outpatient evaluation note shows that the Veteran was found to have full range of motion of the back with a smooth and slow, well-balanced gait. The Veteran was noted to be frequently changing positions during the interview portion of the examination. At an August 2009 nutritional counseling session, the Veteran reported that she was exercising more, jogging with her daughter about 1 to 2 miles per day and then going out for a second walk in the afternoon for about a mile with her dogs. At a September 2009 session, she reported a sprained left ankle, which had limited her ability to walk for exercise. In November 2009, she reported that started back exercising on the elliptical trainer as her ankle was a little better. She was also considering adding in some weight training. At a November 2009 physical therapy visit, the Veteran indicated that she had returned to her walking routine of 1 to 1 1/2 miles per day but was having problems with ankle swelling. At a May 2009 VA low back examination, the Veteran reported low back pain primarily midline with radiation into both buttocks. She denied leg pain. She had not used walking aids or braces and had no true sensory disturbances in either lower extremity. She noted that the back pain was variable, worse if she stood for a long time or walked for any significant distance. She noted that she was frequently uncomfortable sitting and searched for a comfortable position. She described some back pain as occurring pretty much on a continuing basis with some increases if she was very active. She was able to walk unaided and did not wear any braces or corsets. She did not appear unsteady on her feet and she walked essentially with a normal gait. Physical examination showed that the pelvis position was relatively level. The Veteran had diffuse lumbar and paralumbar tenderness. There was no true muscle spasm present. Range of motion of the lumbar spine was 50 degrees flexion, 10 degrees extension, 20 degrees left and right lateral flexion and 20 degrees right and left rotation. Neurological examination was essentially normal. The pertinent diagnosis was chronic lumbar strain with mild effect on activities of daily living and employment. The examiner noted that there were some complaints of pain during range of motion testing. The pain appeared primarily postural, however. The examiner did not anticipate further loss of motion with repetitive use and no true flare-ups were noted. At a May 2010 VA nutritional counseling session, the Veteran reported that she had just started increasing her exercise. She had been walking her daughter back and forth to school. The school was 1.8 miles away from her home so she was walking an average of 7 miles per day. In December 2010, she reported that she was only doing a little walking with the dog and thus not getting enough exercise. She indicated that she had exercise equipment at home but that she was not using it. At an August 2011 VA low back examination, the examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine. The Veteran reported that in the interval since her last VA examination, she had experienced continued worsening. She noted continued pain and stiffness, which was worse with any movement and after sitting for prolonged periods. She was currently being treated by a chiropractor approximately every two weeks and more often if symptoms flared up. She took no prescription medications for her back but did use acetaminophen fairly regularly but with overall poor results. She reported standing limitations of about 20 minutes and walking limitations of between 1/2 and 3/4 of a mile. She reported severe flare-ups occurring about 2 to 3 times monthly with severe low back pain associated with spasm. Her back would stiffen to the point where any spinal movement was difficult. She often had to call for an additional chiropractic treatment after these episodes. She also had less severe flare-ups several times weekly, which mainly caused increased pain but had no effect on mobility. Physical examination showed that range of motion was 30 degrees flexion, with pain beginning at 5 degrees, 10 degrees extension with pain beginning at 0 degrees 15 degrees right lateral flexion with pain beginning at 5 degrees; 15 degrees left lateral flexion with pain beginning at 5 degrees; 20 degrees right rotation with pain beginning at 10 degrees and 20 degrees left rotation with pain beginning at 10 degrees. After a minimum of 3 repetitions, forward flexion was to 25 degrees, extension was to 5 degrees, right and left lateral flexion was to 5 degrees and right and left lateral rotation was to 10 degrees. The Veteran was noted to have additional limitation of motion following repetitive use testing. The Veteran was also noted to have functional loss/functional impairment in the form of less movement than normal, excess fatigability, pain on movement and interference with sitting, standing and/or weight bearing. The Veteran was tender over the lower lumbar spine and also in the paraspinal muscles of the right and left lower lumbosacral area with tightening and paraspinal spasm. The tenderness was severe enough to result in abnormal gait. Neurological examination was unremarkable and the Veteran was noted to have intervertebral disc syndrome without any incapacitating episodes in the last 12 months. X-rays from May 2009 had shown evidence of degenerative disc disease at L5-S1 with L4-5 facet sclerosis. The examiner noted that the Veteran had not worked since retiring from the military but would not likely be able to perform any physically active jobs due to her back pain and spasm. Sedentary work might also be affected as she had had flare-ups after prolonged sitting. She reported that she had had to hire out heavier cleaning and chores at home. The examiner commented that the Veteran walked with a slightly antalgic gait and that there was no evidence on examination of any ankylosis. The examiner also noted that on the basis of the history and the examination findings it would be feasible to expect the Veteran could lose an additional 5 to 10 degrees of forward flexion, an additional 5 degrees of extension and an additional 10 to 15 degrees of right and left lateral flexion and rotation with flare-ups when they occurred or following repetitive use due to pain and spasm of the lumbar spine. The Board notes that the private chiropractor, in his November 2008 letter, noted that he had treated the Veteran for four years (i.e. back to November 2004) and that during that time, her lumbar spine range of motion was essentially somewhere between 30 and 60 degrees. Consequently, this finding can support assignment of a higher, 20 percent rating for the low back disability under the general rating formula dating back to November 1, 2004, the effective date of service connection. The December 2004 and January 2007 VA examiners did find a less limited flexion on examination (i.e. 80 degrees and 70 degrees respectively). The December 2004 examiner also noted that the Veteran would be expected to have a 10 to 20 degree loss of flexion during flare-ups or repeated use, however. Considering the higher end of this range of expected additional loss, the Veteran's flexion would be limited to 60 degrees. Also, the January 2007 VA examiner found that the Veteran's flare-ups generally would cause an additional 5 to 10 degree loss of motion. Thus, if one assumes an additional 10 degree loss of flexion on flare-ups or repetitive use and an additional 5 degree loss of motion in the other directions, the Veteran's flexion would be again reduced to 60 degrees and her combined range of motion would be reduced to 115 degrees. Accordingly, based on the chiropractor's finding and the VA examiners' functional loss findings, and resolving reasonable doubt in the Veteran's favor, the criteria for a higher 20 percent rating under the general formula have been met from November 1, 2004 forward. 38 C.F.R. §§4.40, 4.45, 4.71a, Diagnostic Code 5243; Deluca, 8 Vet. App. 202 (1995). Given that a 20 percent rating has now been assigned from the date of service connection, the Board's inquiry is limited to whether a rating in excess of this amount is warranted. Prior to August 11, 2011, the Veteran is not shown to have forward flexion of the lumbar spine to 30 degrees or less. Also, at no time during the appeal period has the Veteran been shown to have incapacitating episodes requiring bedrest prescribed by a physician. In the November 2008 letter, the Veteran's chiropractor did indicate that the Veteran's back pain had left her "incapacitated" for two to four weeks during the past four months. He did not indicate that he had prescribed bedrest for this problem, however, nor did he indicate that any other physician or medical professional had prescribed bedrest. Consequently, this letter does not provide a basis for finding that the Veteran had incapacitating episodes within the meaning of Diagnostic Code 5243 and there are no other findings of record during the appeal period, which provide such a basis. Accordingly, a rating in excess of 20 percent prior to August 10, 2011 based on incapacitating episodes is not warranted. The Board has also considered whether a rating in excess of 20 percent could be assigned on the basis of functional loss. As mentioned above, however, the December 2004 and January 2007 VA examiners' findings are at most compatible with the existing 20 percent rating. Similarly, the May 2009 VA examiner did not anticipate further loss of motion with repetitive use and did not find that the Veteran suffered from true flare-ups. Also, although the private chiropractor describe flare-ups (i.e. periods of incapacitation), he did not provide any findings tending to indicate that the Veteran's overall functional loss, when specifically factoring in the loss of function due to flare-ups, would be compatible with a 40 percent rating for forward flexion limited to 30 degrees or less. Thus, although it is logical to assume that the chiropractor viewed the Veteran as experiencing some additional loss of overall functional level due to the flare-ups, given that this loss was not quantified, and given the specific findings of the December 2004, January 2007 and May 2009 VA examiners, the weight of the evidence is against assignment of a rating in excess of 20 percent based on functional loss prior to August 11, 2011. 38 C.F.R. §§4.40, 4.45, Deluca, 8 Vet. App. 202 (1995); Gilbert, 1 Vet. App. 49, 55 (1990). From August 11, 2011, there is no basis for assignment of a rating in excess of 40 percent under the general rating formula as ankylosis has neither been shown nor alleged. Also, as explained above, as incapacitating episodes have not been shown, there is no basis for assigning a higher rating based on such episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Additionally, the evidence does not show that the Veteran has functional loss beyond that currently compensated by the 40 percent rating. 38 C.F.R. §§4.40, 4.45, Deluca, 8 Vet. App. 202 (1995). The August 2011 VA examiner did find that the Veteran could lose an additional 5 to 10 degrees of forward flexion, an additional 5 degrees of extension and an additional 10 to 15 degrees of right and left lateral flexion and rotation during flare-ups or on repetitive use. Even when considering such additional loss of motion during flare-ups or repetitive use, however, the Veteran's level of overall functional loss is not shown to be compatible with the severity of ankylosis (i.e. the spine chronically stuck in a fixed position). Nor is there any other evidence of record indicating that the Veteran has overall functional loss as severe as that which occurs with ankylosis. Accordingly, from August 11, 2011, a rating in excess of 40 percent is also not warranted on the basis of functional loss. 38 C.F.R. §§4.40, 4.45, Deluca, 8 Vet. App. 202 (1995). The Board has also considered whether any separate rating is warranted for neurological manifestations of the Veteran's lumbar spine disability. As the Veteran has not been found to have any associated neurological impairment, such as radiculopathy, however, such a separate rating is not warranted. Notably, the VA examinations of record have shown essentially normal neurological functioning in the lower extremities and the private chiropractor did not note any such impairment. There are also no other medical findings of record showing any neurological impairment associated with the low back disability and neither the Veteran nor her representative has specifically alleged any such impairment. Accordingly, in summary, on a schedular basis, the evidence warrants assignment of a 20 percent rating for the lumbar spine disability from November 1, 2004 to August 9, 2011 and assignment of a 40 percent rating for the lumbar spine disability from August 10, 2011. Left ankle disability In the June 2005 rating decision, the RO granted service connection for chronic left ankle sprain and assigned a noncompensable rating effective November 1, 2004. In the March 2012 rating decision, the RO granted an increased, 10 percent rating for the left ankle strain effective August 11, 2011. The left ankle disability has been rated based on limitation of motion of the ankle under Diagnostic Code 5271. Under this Code, moderate limitation of ankle motion warrants a 10 percent rating and marked limitation of motion warrants a 20 percent rating. Id. For VA rating purposes, normal range of motion of the ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71a, Plate II. In a November 2004 statement, the Veteran indicated that she first injured both ankles while a student at the Air Force Academy during physical training. She subsequently experienced multiple sprains, which had resulted in constant swelling and inflammation of soft tissue surrounding both ankles, chronic pain in both ankles and limited mobility in the ankle joints. She reported that this current, constant pain currently limited her physical activities, including the ability to stand, walk or jog for more than a few minutes at a time. At a December 2004 VA general medical examination, the Veteran reported that her ankle problems were made worse by running. She indicated that she had a dull, constant chronic pain that became sharp with prolonged standing and walking. She noted that she had to wear ankle braces for sporting events. The examiner found that the Veteran did not describe flare-ups. Examination of the ankles showed full range of motion. Circumferential measurement of the ankles was equal bilaterally. The Veteran's gait was found to be within normal limits. The examiner diagnosed the Veteran with chronic bilateral ankle strain with no history of fracture. The examiner noted that the examination had shown the absence of painful motion. During flare-ups, however, the examiner estimated that the Veteran might lose 5 to 10 degrees of lateral motion. X-ray of the ankles was normal. In a July 2006 notice of disagreement, the Veteran contended that the left ankle disability did restrict her physical capabilities. At a January 2007 VA joints examination, the Veteran reported that she used orthotics for her shoes. She was not working and walked between 1 1/2 and 2 miles daily with her dog. She indicated that she had experienced weight gain secondary to her various disabilities and inability to exercise. She reported chronic ankle strain bilaterally. She reported chronic pain in the left lateral posterior ankle. She indicated that she experienced flare-ups when walking just a few feet. She reported weakness and she felt that her ankles easily rolled to the outside. She also reported edema in both ankles, especially after walking or activity. The edema resolved somewhat with elevation. Physical examination showed that the Veteran was stiff from rising from a chair in the waiting room and walked slightly flexed forward at the hips with stiff feet and ankles. Neurological examination of the lower extremities was essentially normal with some tenderness with left ankle plantar flexion. The Veteran needed encouragement and cueing for effort during strength testing. Examination of the ankles showed bilateral edema along the posterolateral malleolus. Plantar flexion of the left ankle was 0 to 40 degrees, passive and active, with tenderness and dorsiflexion was 0 to 10 degrees. There was tenderness with palpation of the posterolateral malleolus. There was no anterior or posterior laxity of the ankles. The examiner found that there was painful motion and reduced range of motion with an absence of instability. These findings were supported by objective evidence and were consistent with the history and pathology of the Veteran's disability. Due to pain with flare-ups, an additional loss of motion of 5 to 10 degrees was expected in the left ankle. In a May 2007 statement accompanying her Form 9, the Veteran indicated that her chronic left ankle pain, constant inflammation and continuous swelling did restrict her physical capabilities. VA medical records from May 2007 to July 2007 show that the Veteran received physical therapy for her left ankle. In May 2007, the Veteran reported that she was walking about 1/2 mile to a mile each day. Range of motion findings appeared to indicate that left ankle dorsiflexion was 22 degrees actively and 12 degrees passively. The evaluating physical therapist commented that in standing and during gait, the Veteran exhibited pain free left and right ankle dorsiflexion of at least 10 degrees. She also demonstrated a non-antalgic gait without deviations for 200 feet. Her gait was mildly antalgic and hesitant when ascending and descending stairs, alternating steps with a rail. The physical therapist found that the Veteran had decreased tolerance for functional/recreational mobility and prolonged positioning due to pain in multiple locations. She also demonstrated a positive Waddell's sign for malingering during the evaluation. The physical therapist suspected that there could be a possible incentive for secondary gain in relation to her disability claims. In June 2007, the Veteran was noted to demonstrate a slight antalgic/guarded gait. In July 2007, it was noted that the Veteran did not appear for her final physical therapy appointment. At the December 2007 DRO hearing, the Veteran testified that her ankle pain was more severe after exercise. She reported a lot of swelling in both ankles, even after doing short walks, so she would frequently elevate the ankles. She had braces for both ankles, which she would wear if she was going to try and do extended walking. She reported some instability of the ankles. Most of the pain on the left was on the outside of the ankle. She reported episodes of her ankle rolling over about two to three times per week, which was why she wore ankle braces when walking more than a mile. She indicated that she was taking Tylenol for her joint pain, including the ankle pain. During the October 2008 Board hearing, the Veteran reported that she took a steady dose of Tylenol for all of her orthopedic conditions. She indicated that she did not wear a brace for normal walking around but she did wear a brace when exercising. The brace had metal splints on each side of the ankle to keep it from turning. She reported left ankle pain, limitation of motion and a lot of swelling. She indicated that the ankles would not give out on her on direct weight-bearing but they would roll quite a bit. She estimated that this occurred several times a week, with the left one rolling a little more. Thus, she had to be careful that she walked on fairly level pavement. Consequently, she always tried to wear sneakers for the ankle support and so she could fit her orthotics into them. She reported that the ankle was sometimes a bit stiff walking down stairs. Her physical therapist had given her a series of exercises to strengthen her ankles and had recommended that she wear the ankle braces when exercising. During a May 2009 VA primary care visit, the Veteran reported bilateral ankle pain. Physical examination showed that her gait was smooth and well-balanced, though slow. During a July 2009 VA nutrition consultation, the Veteran reported that she was steadily gaining weight and was not getting much exercise. At a subsequent August 2009 nutrition follow-up session, the Veteran reported that she was exercising more, jogging with her daughter about 1 to 2 miles per day and then going out for a second walk in the afternoon for about a mile with her dogs. In September 2009, the Veteran reported that she sprained her left ankle playing soccer in her yard. Due to the injury, she had not been doing much walking. The ankle was doing better, however, and she thought that she could soon resume walking for exercise purposes. In November 2009, she reported that her ankle was a little better and that she had been exercising on the elliptical trainer. Later in November 2009, during a physical therapy session, it was noted that the Veteran had twisted her left ankle into inversion while playing soccer with her daughter about three months previously. For about six weeks after this, she had not engaged in her normal walking routine. After that, she was able to return to walking about 1 to 1 1/2 miles but found that she was experiencing recurrent swelling and bruising along the posteromedial ankle. She described wearing extensive ankle braces with metal stays in the past but had not worn them recently. She did wear orthotics. Physical examination showed a slightly antalgic and hesitant gait, especially without shoes, and decreased step length. There was swelling to the lateral malleolus bilaterally, greater on the left. There was decreased left ankle dorsiflexion with knee flexed compared to the right ankle. Manual muscle testing showed 5/5 strength on dorsiflexion and plantar flexion, 4+ strength with inversion and 4/5 strength with eversion. Range of motion testing showed left ankle dorsiflexion of 5 degrees and plantar flexion of 40 degrees. Eversion was 12 degrees and inversion was 20 degrees. The diagnosis was chronic ankle sprain with recurrent swelling and continued pain. The physical therapist instructed the Veteran on the use of bilateral ankle braces to be worn with aggravating activities. She was given a program of stretching and strengthening exercises. She was also instructed to continue ice and elevation as needed and not to start jogging until she could perform all the physical therapy exercises without pain. At a May 2010 VA nutritional counseling session, the Veteran reported that she had just started increasing her exercise. She had been walking her daughter back and forth to school. The school was 1.8 miles away from her home so she was walking an average of 7 miles per day. In December 2010, she reported that she was only doing a little walking with the dog and thus not getting enough exercise. She indicated that she had exercise equipment at home but that she was not using it. At an August 2011 VA joints examination, range of motion of the left ankle was 40 degrees plantar flexion with pain beginning at 5 degrees and 5 degrees dorsiflexion with pain beginning at 0 degrees. There was no additional limitation of motion after repetitive use. Overall, the Veteran did have functional loss due to less movement than normal, excess fatigability, pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing. Muscle strength was 5/5 on left plantar flexion and left dorsiflexion. There was no indication of joint instability and there was no ankylosis. It was noted that the Veteran continued to have chronic pain over both tibias with activity but that she was separately service-connected for this condition. No abnormalities were shown on X-rays of the left ankle. The examiner noted that the Veteran was retired but that her ankle condition would prevent any work requiring continuous standing or walking due to the tendency for these activities to cause flare-ups requiring her to be off of her feet. Additionally, the examiner noted that on the day of examination, there were no changes following repetitive motion. However, she did report flare-ups associated with loss of function. Based on her history and the current examination, it was feasible to anticipate an additional loss of 5 degrees of dorsiflexion and additional loss of 15 to 20 degrees of plantar flexion with flare-ups when they occurred, due to pain and swelling. Notably during the December 2004 VA examination, range of motion of the left ankle was actually found to be normal with the examiner noting only that the Veteran could lose 5 to 10 degrees of lateral motion on flare-ups. Given this near normal finding, even when considering functional loss, this range of motion is best described as mild. During the January 2007 VA examination, plantar flexion was to 40 degrees, which is nearly normal and dorsiflexion was to 10 degrees, which is approximately 1/2 of normal. The examiner found that an additional loss of motion of 5 to 10 degrees was expected due to pain on flare-ups. Also, during the May 2007 VA physical therapy evaluation, active dorsiflexion was found to be 22 degrees and passive dorsiflexion was found to be 12 degrees. Additionally, during the November 2009 physical therapy visit, left ankle dorsiflexion was to 5 degrees and plantar flexion was to 40 degrees. As the Veteran's January 2007 left ankle plantar flexion was essentially normal and as her dorsiflexion was 1/2 of normal, this overall range of motion is best described as mild. Also, as the May 2007 left ankle dorsiflexion was essentially normal on active range of motion and more than 1/2 of normal on passive range of motion, the Board finds that this range of motion is also best described as mild. Similarly although the Veteran's left ankle dorsiflexion was significantly reduced in November 2009, her plantar flexion was again near normal. Thus, the Board finds that this overall range of motion is also best described as mild and does not warrant assignment of a compensable rating. Although the January 2007 finding concerning additional loss of motion on flare-ups could potentially support assignment of a higher rating based on functional loss, the Board notes that generally, prior to August 11, 2011, the Veteran was able to do a significant amount of walking, do a little jogging and also work out on the elliptical trainer, all exercises that clearly involve some level of repetitive stress to the ankle. Notably, she reported in August 2009 that she was jogging with her daughter about 1 to 2 miles per day and then going out for a second walk in the afternoon for about a mile. Also, she was playing soccer in her yard at the time that she suffered a left ankle sprain sometime around September 2009. The ankle sprain did naturally reduce her level of activity on a temporary basis. After about six weeks, however, she did return to a normal walking routine of about 1 to 1 1/2 miles per day without wearing her ankle braces. She did initially experience recurrent swelling and bruising along the posteromedial ankle but it appears that this problem subsequently improved through consistent use of her ankle braces. In this regard, at a May 2010 nutritional counseling session, she specifically reported that she was walking 7 miles per day and she did not report that this extensive level of activity was causing problems for her ankles. She subsequently reported only doing a little walking with the dog in December 2010 but there is no indication that this was a result of any orthopedic problem. Thus, given the general findings of mild limitation of left ankle motion by VA practitioners prior to August 11, 2011 and given that the Veteran was reasonably shown to be able to engage in a regular regimen of significant daily walking, including times where she was doing some jogging or walking 7 miles per day, the Board finds that despite the flare-ups she encountered, her overall level of functional loss was compatible with mild limitation of motion of the left ankle. Accordingly, even when considering functional loss, a compensable rating for the left ankle is not warranted during this time frame. (The Board notes that if the November 2009 physical therapist's finding had been accompanied by findings of additional functional loss on repetitive use or on flare-ups, it may have supported assignment of a higher disability rating. Such was not the case, however. Instead, it appears that the Veteran was actually experiencing a flare-up at the time the range of motion assessment was made. 38 C.F.R. § 4.71a, Diagnostic Code 5271. From August 11, 2011, the Veteran's limitation of motion of the left ankle has not been shown to be more than moderate. Notably, at the August 11, 2011 VA examination, plantar flexion was to 40 degrees and dorsiflexion was to 5 degrees. Thus, even though the Veteran's dorsiflexion was markedly reduced, her plantar flexion was once again near normal. Additionally, there was no additional limitation of motion after repetitive use. Consequently, the Board finds that the overall level of limitation is best described as no more than moderate. The examiner did indicate that it was feasible to anticipate an additional 5 degree loss of dorsiflexion and 15 to 20 degrees of plantar flexion with flare-ups due to pain and swelling, findings that could potentially support a finding of marked limitation of left ankle motion. Given that the evidence indicates that the Veteran has been better able to avoid the occurrence of flare-ups through the use of her ankle braces, however (as evidenced by her ability to walk approximately 7 miles per day as late as May 2010), the Board finds that overall, she is not shown to have a level of functional loss of her left ankle, which is equivalent with marked limitation of left ankle motion. Accordingly, from August 11, 2011, a rating in excess of 10 percent for left ankle disability is not warranted on a schedular basis. 38 C.F.R. § 4.71a. The Board has also considered whether other rating codes used to rate ankle disability might afford the Veteran any higher rating during the appeal period. As ankylosis, astragalectomy and malunion of the os calcis or astragalus are not shown, however, there is no basis for assigning a rating under any of these codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating is appropriate for the low back and left ankle disabilities under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's low back and ankle disabilities are contemplated by the schedular criteria, which take into account the Veteran's low back symptoms, including pain, limited motion, muscle spasm and stiffness and the left ankle symptoms, including pain and swelling. No examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from either disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of the evaluation of either disability for extra-schedular consideration is not warranted. ORDER From November 1, 2004 to October 30, 2008, a 20 percent but no higher rating is granted for degenerative changes of the lumbar spine, subject to the regulations governing the payment of monetary awards. From October 31, 2008 to August 10, 2011, a rating in excess of 20 percent for degenerative changes of the lumbar spine is denied. From August 11, 2011, a rating in excess of 40 percent for degenerative changes of the lumbar spine is denied. Prior to August 10, 2011, a compensable rating for left ankle strain is denied. From August 10, 2011, a rating in excess of 10 percent for left ankle strain is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs