Citation Nr: 1316955 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 06-12 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected degenerative changes of the lumbosacral spine. 2. Entitlement to an effective date earlier than October 31, 2007 for the grant of service connection for radiculopathy of the left lower extremity. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 1980 to July 1986. This case comes before the Board of Veterans Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a February 2010 decision, the Board, in pertinent part, denied the Veteran's claim for entitlement to an increased rating for degenerative changes of the lumbosacral spine. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2011, the Veteran's representative and the Secretary of Veterans Affairs filed with the Court a Joint Motion for Remand (JMR) seeking to vacate the Board's February 2010 decision. On March 18, 2011, the Court issued an Order which granted the JMR and remanded the case to the Board, directing the Board to comply with its directives therein. During the course of the appeal, in a December 2008 rating decision, the RO granted entitlement to service connection for left lower extremity radiculopathy associated with the Veteran's lumbar spine disability and assigned a ten percent disability rating effective October 31, 2007. The disability rating was subsequently increased to 20 percent effective November 8, 2011 in an August 2012 rating decision. As evidenced by the claims folder, the Veteran did not express disagreement with either assigned disability rating. Accordingly, an increased rating claim for left lower extremity radiculopathy is not in appellate status and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. However, as will be discussed below, the Veteran has perfected an appeal with the assigned effective date of October 31, 2007 for the grant of service connection. In October 2011, the Board remanded the Veteran's increased rating claim. The VA Appeals Management Center (AMC) continued the previous denial of the claim in an August 2012 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. Additionally, in October 2011 the Board remanded the Veteran's claim of entitlement to service connection for tinnitus. In an August 2012 rating decision, the AMC granted this claim. In view of the foregoing, this issue has been resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. The evidence shows that the Veteran's service-connected lumbar spine disability is manifested by pain, flare-ups, limitation of motion, and forward flexion of the thoracolumbar spine greater than 30 degrees; favorable ankylosis of the thoracolumbar spine is not shown. 2. From October 31, 2008, the objective evidence shows significant functional loss due to the Veteran's service-connected lumbar spine disability. 3. The evidence does not show that the Veteran experiences incapacitating episodes requiring bed rest prescribed by a physician and treated by a physician due to his lumbar spine disability. 4. The evidence does not show that the Veteran's service-connected lumbar spine disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. 5. Subsequent to the filing of the claim for service connection for a lumbar spine disability, objective evidence of left lower extremity radiculopathy was not of record until October 31, 2007. CONCLUSIONS OF LAW 1. Prior to October 31, 2008, the criteria for an initial disability rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). 2. From October 31, 2008, the criteria for a 30 percent disability rating, and no higher, are met for the Veteran's service-connected lumbar spine disability. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 3. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). 4. Prior to October 31, 2007, the criteria for the grant of service connection for left lower extremity radiculopathy were not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating for his service-connected lumbar spine disability as well as entitlement to an effective date earlier than October 31, 2007 for radiculopathy of the left lower extremity. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. Compliance with the Court's directives As was noted in the Introduction, this claim involves a JMR by the Court. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. The March 2011 JMR found that the Board failed to provide adequate reasons or bases when finding that a higher rating was not warranted for the Veteran's back disability when the criteria of "functional loss due to pain, weakness, excess fatigability, incoordination, and flare-ups" stated in DeLuca v. Brown, 8 Vet. App. 202 (1995) were considered. Upon remand, the Board was directed to determine whether the Veteran's functional impairment due to his lumbar spine disability warranted a 30 percent rating. The Board is confident that if any additional problems existed, the Court would have brought them to the Board's attention. See Harris v. Derwinski, 1 Vet. App.180, 183 (1991) [holding that the "Court will [not] review BVA decisions in a piecemeal fashion"]. Stegall consideration As was alluded to in the Introduction, the Board remanded the Veteran's claim in October 2011. In essence, the Board instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the severity of his lumbar spine disability and associate a report of the examination with his claims folder. A review of the claims folder shows that the Veteran was subsequently afforded a VA examination for his lumbar spine disability in November 2011 and a report of the examination was associated with his claims folder. Thereafter, the matter was readjudicated via the August 2012 SSOC. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Notice The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in October 2004, and notice with respect to the effective-date element of the claim, by letters mailed in October 2008 and May 2009. Although the October 2008 and May 2009 letters pertaining to the effective-date element of the claim were provided after the initial adjudication of the increased rating claim, the Board finds that the Veteran has not been prejudiced by the timing of these letters. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency and AMC readjudicated the Veteran's claim in August 2009 and August 2012 SSOCs. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims. There is no reasonable possibility that further assistance would aid in substantiating the claims. The pertinent evidence of record includes the statements from the Veteran, service treatment records, as well as VA and private treatment records. The Veteran was afforded VA examinations in May 2005, November 2007, October 2008, and November 2011. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports contain sufficient information to rate the Veteran's lumbar spine disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has retained the services of a representative. In his January and October 2009 substantive appeals [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision. Higher evaluation for Lumbar Spine Disability Pertinent legal criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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 (2012). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"]. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2012). The Veteran's service-connected lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 [degenerative arthritis of the spine], pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The evidence of record indicates that the Veteran has been diagnosed with degenerative changes of the lumbar spine. Based on reported symptomatology, and consistent with Diagnostic Code 5243, the Board will rate the Veteran under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome. See 38 C.F.R. § 4.71a (2012). The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar 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, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician. Schedular rating The Veteran's lumbar spine disability is currently evaluated 20 percent disabling. To warrant a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). The Veteran was afforded a VA examination in May 2005. He complained of dull and sharp as well as constant lower back pain. He denied weight loss, fevers, malaise, dizziness, visual disturbances, numbness, weakness, bladder complaints, bowel complaints, or erectile dysfunction. He did not use crutches, a walker, a brace, or a cane for walking. He was able to walk for about a quarter of a mile and stand for 10 minutes before his back became too painful. He stated that daily activities such as putting on socks and shoes are painful. He was able to drive. Upon examination, the VA examiner reported that the Veteran's spine, limbs, posture, gait, position of the head, and curvature of the spine were normal. Range of motion testing revealed forward flexion to 80 degrees with pain, extension to 30 degrees with pain, right lateral flexion to 20 degrees with pain, left lateral flexion to 30 degrees with pain, and right and left rotation to 30 degrees with pain. Repetitive movements of the lumbosacral spine caused mild pain, weakness, fatigue, and lack of endurance without any effect on the range of motions. The examiner further noted no objective evidence of painful motion, spasm, weakness, or tenderness or fixed deformities. The examiner diagnosed the Veteran with degenerative joint disease and degenerative disc disease of the lumbosacral spine. The Board notes that M.R., D.C., submitted a statement dated in November 2006 indicating that he provided chiropractic treatment for the Veteran and that the Veteran suffers from degenerative joint disease of the lumbar spine. The Veteran was afforded a subsequent VA examination in November 2007. He complained of flare-ups which would not completely resolve until the next day. He reported that prolonged standing aggravated his back pain. He used a lumbar cushion for support when sitting. The Veteran noted that he takes Vicodin on an as-needed basis for his back pain. He did not complain of bowel or bladder impairment. Upon physical examination, the VA examiner reported no alignment deformities of the lumbar spine as well as a normal gait. There was mild tenderness to percussion over the lower lumbar spine extending from L4 to S1. There was no costovertebral angle tenderness to palpation or percussion, no palpable muscle spasms, and no tenderness over the sacroiliac joints bilaterally. Range of motion testing revealed forward flexion 60 degrees with pain, extension to 20 degrees with pain, right and left lateral flexion to 20 degrees with pain, and right and left lateral rotation to 20 degrees with pain. Repetitive movements of the lumbosacral spine caused mild to moderate pain, but no further limitation of range of motion or apparent weakness or fatigue. An X-ray report revealed an impression of degenerative changes with reduced disc spaces. The examiner diagnosed the Veteran with degenerative arthritis of the lumbosacral spine with degenerative disc disease. The Veteran was provided a VA examination on October 31, 2008. The Veteran continued his report of aching, burning, and throbbing lower back pain with flare-ups and stated that he was not able to stand longer than 15 minutes or sit longer than 10 minutes without increased pain. He also stated that he tossed and turned when sleeping due to the lower back pain, and had difficulty walking up and down stairs. The Veteran further noted that he had difficulty walking more than a quarter of a mile and flying. He used Vicodin and Percocet for treatment of the lower back pain, and used a lumbar roll when sitting in a chair. He reported that he was able to drive, bathe, dress himself, shop, and cook. However, he was not able to do yard work, carry firewood, or participate in sports. He did not report bowel or bladder incontinence. Upon physical examination, the VA examiner noted that the Veteran had an antalgic gate due to foot pain, and that he ambulated without assistance. Range of motion testing revealed forward flexion to 60 degrees, extension to 30 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. The examiner reported pain throughout range of motion, and that following repetitive movements, the Veteran had additional limitation of flexion by 15 degrees, extension additionally limited by 20 degrees, and no additional limitation of right or left lateral flexion or extension. There was no increased muscle tension in either paravertebral area upon palpation of the lumbar spine. There was also no acute muscle spasm palpated and no tenderness with palpatory examination. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine. The Board notes that private treatment records from A.Z., M.D. document epidural steroid injections for the Veteran's lumbar spine pain in October 2007, May 2008, June 2008, July 2008, April 2010, October 2010, and November 2010. An October 2010 treatment record notes the Veteran's complaints of low back pain and moderate distress due to low back pain. An examination at that time noted no obvious deformities. Moreover, range of motion testing revealed forward flexion to 5 degrees and that the Veteran was unable to go to neutral in extension. An MRI report dated November 2010 revealed impressions of degenerative disc, protrusions, and facet changes at all lumbar levels with varying degrees of canal and neural foraminal stenosis and no obvious fracture of L1. The Veteran was afforded a VA examination in November 2011. He continued his complaints of constant lower back pain with flare-ups as well as use of a lumbar pad when sitting in a chair. He reported that during flare-ups he is unable to walk very far, cannot bend well, and has to stay at home in bed. Upon physical examination, range of motion testing revealed forward flexion to 60 degrees with pain at 60 degrees, extension to 10 degrees with pain at zero degrees, right lateral flexion to 15 degrees with pain at zero degrees, left lateral flexion to 20 degrees with pain at zero degrees, right lateral rotation to 20 degrees with pain at zero degrees, and left lateral rotation to 15 degrees with pain at zero degrees. The Veteran was able to perform post-test repetitive testing with forward flexion to 60 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. The VA examiner reported that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive testing. However he had functional loss and impairment of the thoracolumbar spine on initial testing. His functional loss and impairment on initial testing consisted of less movement than normal with pain on movement. The VA examiner further reported that the Veteran did not have localized tenderness to palpation or percussion for the joints or soft tissues of the thoracolumbar spine. Although the Veteran had very mild muscle spasm of the right thoracolumbar spine region, it was not severe enough to result in abnormal gait but did result in abnormal spinal contour with reversal of the normal lordosis. The VA examiner reported that the current severity of the Veteran's changes of the lumbar spine were moderate to severe and that ankylosis was not found. The Board observes that the record reflects that the Veteran has complained of low back pain throughout the course of this appeal. However, as discussed above, to warrant a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must show that the Veteran's back disability results in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Review of the evidence of record reveals that the Veteran's lumbar spine symptomatology does not approach a 40 percent disability rating. With respect to favorable ankylosis of the entire thoracolumbar spine, the objective medical evidence of record is pertinently absent any indication that ankylosis exists. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Medicine at 68 (4th Ed. 1987)]. Neither the medical or lay evidence of record suggests that the Veteran's lumbar spine is immobile. On the contrary, the record shows that the Veteran has maintained motion, albeit limited motion, throughout the course of the appeal. Moreover, although the Veteran evidenced a forward flexion of 5 degrees during the November 2010 private treatment evaluation by Dr. A.Z., the remainder of the competent and probative evidence demonstrates that the Veteran has maintained forward flexion well above 30 degrees with consideration of pain. Specifically, the May 2005, November 2007, October 2008, and November 2011 noted forward flexion with consideration of pain of 80 degrees, 60 degrees, 45 degrees, and 60 degrees, respectively. As such, the Board finds that the VA examination reports noting forward flexion well above 30 degrees are of greater probative value than the single November 2010 private treatment record by Dr. A.Z. noting 5 degrees of forward flexion. Indeed, the competent and probative evidence of record does not otherwise document any other forward flexion testing of below 45 degrees. Accordingly, a 40 percent disability rating of the Veteran's lumbar spine is not warranted. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2012). See DeLuca, supra. The Board recognizes the Veteran's complaints of significant pain and functional loss as a result of his lumbar spine disability, notably his difficulty walking and standing. Further, he reported that he experiences pain and reports flare-ups as a result of his lumbar spine disability. As discussed in DeLuca, claimed functional loss must be supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion. In this case, the Board finds that from October 31, 2008, the objective clinical findings of record document significant functional loss due to the Veteran's lumbar spine disability sufficient to warrant a 30 percent disability rating from this date. In particular, the October 2008 VA examination indicated pain throughout range of motion testing, and that following repetitive movements, the Veteran had additional limitation of flexion by 15 degrees and extension additionally limited by 20 degrees. Moreover, the November 2011 VA examiner specifically noted functional loss and impairment of the thoracolumbar spine on initial testing, with functional loss and impairment on initial testing consisting of less movement than normal with pain on movement. Accordingly, a 30 percent disability rating is warranted for functional loss due to the Veteran's lumbar spine disability from October 31, 2008. The Board further notes that a 30 percent disability rating is not warranted for the Veteran's lumbar spine disability prior to October 31, 2008 based on functional loss. In this regard, the Board finds that the competent and probative evidence of record does not indicate significant functional loss attributed to the Veteran's low back complaints sufficient for a higher disability rating. As indicated above, the May 2005 VA examination documented repetitive movements of the lumbosacral spine which caused mild pain, weakness, fatigue, and lack of endurance without any effect on the range of motions and no objective evidence of painful motion, spasm, weakness, or tenderness or fixed deformities. Moreover, the November 2007 VA examination indicated that repetitive movements of the lumbosacral spine caused mild to moderate pain, but no further limitation of range of motion or apparent weakness or fatigue. The Board is unable to identify any clinical findings that would warrant an increased evaluation under 38 C.F.R. § 4.40 and 4.45 prior to October 31, 2008. The Board further finds that the current 20 percent rating adequately compensates the Veteran for any functional impairment attributable to his lumbar spine disability prior to this date. See 38 C.F.R. §§ 4.41, 4.10 (2012). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See also Bierman v. Brown, 6 Vet. App. 125 (1994) [holding that under former Diagnostic Code 5293 a separate rating for neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder]. The Board notes that the Veteran has complained of pain radiating to his right lower extremity. See, e.g., the November 2011 VA examination report. The Board further notes that the October 2008 VA examiner noted deep tendon reflexes of +1/4 and that the Achilles was absent as well as positive straight leg raising. However, the competent and probative evidence of record does not indicate neurological impairment sufficient to warrant a separate disability rating. Notably, the May 2005 VA examiner reported no radiating pain to the right lower extremity and that a neurologic examination was normal. Moreover, the Veteran denied numbness or tingling in his extremities at the November 2007 VA examination. The Board also notes that the October 2010 private treatment report by Dr. A.Z. indicates normal strength and sensation of the right lower extremity, although deep tendon reflexes were 1-2+. Crucially, the November 2011 VA examiner reported that the Veteran's right lower extremity was not affected by the lumbar spine disability. Based this record, and although not necessarily disputing that certain subjective neurological symptoms such as pain may be present, the Board finds that a separate rating for neurological impairment of the right lower extremity is not warranted. As discussed above, the Veteran was awarded a separate ten percent disability rating for left lower extremity radiculopathy associated with his lumbar spine disability effective October 31, 2007 which was subsequently increased to 20 percent effective November 8, 2011. As evidenced by the claims folder, the Veteran did not appeal either assigned disability rating. The Board additionally notes that although the Veteran has been diagnosed with degenerative arthritis of the lumbar spine, this disease manifests in back pain based on identified symptomatology. Accordingly, separately rating the diagnosis would amount to prohibited pyramiding. See 38 C.F.R. § 4.14 (2012) [the evaluation of the same disability under various diagnoses is to be avoided]. Finally, the Veteran has not identified any bladder or bowel dysfunction associated with his lumbar spine disability, and none has been diagnosed. Intervertebral Disc Syndrome Based on Incapacitating Episodes Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months and a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Further, as noted in the schedular criteria, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran has contended that his lumbar spine disability causes flare-ups, pain, and interference in daily activities. However, the medical evidence does not indicate that he has been prescribed bed rest by a physician based on incapacitating episodes totally at least 4 weeks but less than 6 weeks during any 12 month period. Therefore, the Veteran's service-connected lumbar spine disability does not warrant an increased disability rating alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Extraschedular consideration The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected lumbar spine disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. The evidence of record indicates that the Veteran currently works at the Internal Revenue Service as a revenue officer, which requires site visits for field work to collect taxes. See the November 2011 VA examination report. The Veteran had reported to the October 2008 VA examiner that he had been laid off from his job as a printing manufacturer salesman due to the economic decline, and that if he desired to reenter that profession, he would experience difficulty traveling due to the low back pain. He reported at the October 2008 VA examination that he missed 10 to 15 days from his job due to low back pain. Indeed, the Board notes that it has no reason to doubt that the Veteran's lumbar spine disability adversely impacts his employability; however, this is specifically contemplated by the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Crucially, the Board has not identified an exceptional or unusual clinical picture as a result of the service-connected lumbar spine disability. There is no medical evidence that the Veteran has been frequently hospitalized or received in-patient treatment as a result of the lumbar spine disability during the period under consideration. With respect to his physical symptoms, the Board finds that they are specifically contemplated by the rating criteria. In particular, he experiences back pain, with functional loss. As discussed in detail above, these symptoms are contemplated in the criteria for the 20 and 30 percent ratings assigned. Accordingly, the record does not demonstrate any reason why an extraschedular rating should be assigned. As there is no factor which takes this disability outside the usual rating criteria, the Board has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Rice consideration In awarding in part and denying in part the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the evidence of record does not show, and the Veteran has not asserted, that his lumbar spine disability renders him unable to obtain substantially gainful employment. On the contrary, the Veteran has stated that he is currently employed as a revenue officer for the Internal Revenue Service. See the November 2011 VA examination report. Moreover, the November 2011 VA examiner reported that the Veteran's back condition prevents heavy physical but not sedentary work. There is no medical opinion to the contrary. Accordingly, the Board concludes that the issue of TDIU has not been raised in this case. Earlier effective date for left lower extremity radiculopathy The assignment of effective dates for awards of disability compensation is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. As pertinent here, where a claim has not been filed within one year after separation from service, the law provides that the effective date of an award of service-connected disability compensation based on an original claim or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (b)(2). Generally, except as otherwise provided, the effective date of a compensation award based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Actual payment of such monetary benefits commences on the first day of the calendar month following the month in which the award became effective. 38 C.F.R. § 3.31. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p), 3.155. Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file which may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Roper v. Nicholson, 20 Vet. App. 173 (2006), the Court held that effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date the Veteran applied for benefits. The Veteran seeks an effective date earlier than October 31, 2007 for the grant of service connection (more specifically, a separate rating) for left lower extremity radiculopathy. The Veteran seeks an effective date of July 28, 2004, the date he filed his original claim for a lumbar spine disability. With respect to the issue of entitlement to an effective date earlier than October 31, 2007, for the grant of service connection for left lower extremity radiculopathy, the Board notes that such entitlement was granted based on diagnosis of this disability as related to the Veteran's service-connected lumbar spine disability. Specifically, a private treatment record from Dr. A.Z. dated October 31, 2007 documented a diagnosis of degenerative joint disease of the lumbar spine with associated radiculitis. Subsequent records also show complaints of back pain radiating into the left leg, and there were assessments of back pain with radicular symptoms of the left lower extremity. However, the records do not reflect a diagnosis of radiculopathy affecting the left lower extremity until the October 31, 2007 private treatment record from Dr. A.Z. It is also notable that in May 2005, the Veteran was afforded a VA examination for his lumbar spine disability. At that time, he complained of low back pain with radiating pain to his hips. Crucially, however, a neurological examination revealed normal findings. Additionally, a May 2003 private evaluation by R.P., M.D. revealed a normal neurological examination of the lower extremities. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including numbness and tingling), as a lay person is not competent to associate any of his claimed symptoms to the clinical diagnosis of radiculopathy of the left lower extremity. Such opinion requires specific medical training on the neurological system and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render neurological opinions, the Board must find that his contention with regard to disability of his left lower extremity radiculopathy prior to October 31, 2007 to be of no probative value. See also 38 C.F.R. § 3.159(a)(1) (2012) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of disability of left lower extremity radiculopathy prior to October 31, 2007. Thus, because entitlement to a separate rating for radiculopathy of the left lower extremity did not arise until October 31, 2007, an earlier effective date is not warranted. ORDER Entitlement to an initial evaluation in excess of 20 percent for service-connected degenerative changes of the lumbosacral spine prior to October 31, 2008 is denied. Entitlement to a 30 percent evaluation for service-connected degenerative changes of the lumbosacral spine is granted from October 31, 2008, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an effective date earlier than October 31, 2007 for the grant of service connection for radiculopathy of the left lower extremity is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs