Citation Nr: 1317037 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 10-10 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for lumbar disc disease, multilevel, with disc bulging, spinal canal, foraminal stenosis and bilateral sciatica. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and associate ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from March 1977 to March 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2012, the Board remanded this case for further development. The Veteran appeared at a Travel Board hearing at the RO in November 2011 before the undersigned Veterans Law Judge. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's low back disability is not productive of any incapacitating episodes during the past 12 months; favorable ankylosis; or limitation of thoracolumbar forward flexion to 30 degrees or less, even considering any additional limitation of motion from pain and repetitive motion. 2. The Veteran's low back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 3. The Veteran's low back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Throughout the course of this appeal, the criteria for a disability rating in excess of 20 percent rating for lumbar disc disease, multilevel, with disc bulging, spinal canal, foraminal stenosis and bilateral sciatica have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012). 2. Throughout the course of this appeal, the criteria for a separate 10 percent rating, and no more, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). 3. Throughout the course of this appeal, the criteria for a separate 10 percent rating, and no more, for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in October 2008. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his lumbar spine claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the lumbar spine claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ also specifically sought to identify any pertinent evidence not currently associated with the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The claimant was provided the opportunity to present pertinent evidence. The record contains records of medical treatment received from VA and private treatment providers. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. VA examined the medical history of the Veteran's service-connected lumbar spine disability for compensation purposes addressing the claim. Findings from the examination reports are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the Board observes that the Veteran has not reported that the lumbar spine disability has worsened since the most recent VA examination in February 2013. As such, a remand is not required solely due to the passage of time since the February 2013 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In requesting that the Veteran identify any outstanding VA or private treatment records pertaining to his lumbar spine disability, and having the Veteran undergo an additional VA compensation examination in February 2013, there was compliance with the January 2012 remand directive inasmuch as there is now sufficient information and evidence to adjudicate the issue. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the United States Court of Appeals for Veterans Claims (Court) or Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is alternatively permissible to have "substantial" compliance with a remand directive, even if not "exact" or "total" compliance). The RO later issued a Supplemental Statement of the Case in March 2013. Thus, the Board finds that the RO complied with the mandates of its remand. See Stegall (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Criteria & Analysis An October 1979 rating decision granted service connection for residuals of a back injury, and assigned a 10 percent disability rating effective April 1, 1979. An October 1991 rating decision assigned a 20 percent disability rating effective July 12, 1991. A January 2002 rating decision continued the 20 percent disability rating. The Veteran did not file a notice of disagreement related to the January 2002 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the January 2002 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The Veteran filed the increased rating claim on appeal in September 2008. The Veteran's lumbar spine disability is currently rated under DC 5243. Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; 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; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). If a Veteran appeals a rating decision seeking an increased rating for a disability for which service connection has already been established, such as here, then the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). More recently the Court has held that even in a claim for an increase in the level of an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus in deciding the claim below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. The Veteran's statements describing the symptoms of his service-connected lumbar spine disability are deemed competent evidence, and these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 38 C.F.R. § 3.159 (2012). On evaluating the condition of service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, in this case, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board must consider both as service-connected disability. Id. The RO has evaluated the appealed disability ratings under rating criteria for evaluating the musculoskeletal system, under 38 C.F.R. § 4.71a (2012). 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Under VA's Rating Schedule, disabilities of the spine, are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012). Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243 (2012). A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. 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. Id. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. Finally, unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The notes discussed below in pertinent part follow and pertain to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. (See also 38 C.F.R. § 4.71a, Plate V). Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etcetera., particularly during times when these symptoms 'flare up,' such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board observes that the United States Court of Appeals for Veterans Claims (Court) recently noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes. 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 Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, 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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. The Veteran seeks a disability rating in excess of 20 percent for the lumbar spine disability. Consideration of any associated radicular pain in the lower extremities is inherent in the evaluation of the claim on appeal for a disability rating in excess of 20 percent for lumbar spine disability. See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the lumbar spine disability. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). VA treatment records dated in May 2008 reflect that the Veteran had left sciatica for the previous eight months, with one episode of bilateral sciatica and weakness in both legs occurring four to five times about three months earlier. The Veteran's back had full range of motion. He was assessed with subacute low back pain. He had no muscle weakness or reflex loss in either lower extremity and no straight leg raising sign. In June 2008, he denied bowel or bladder problems. He continued to have numbness in his right great toe on the medial side of his right foot. He had pain radiating down into both buttocks from the sacroiliac joint areas and had bilateral paraspinal muscle tenderness. The Veteran underwent a VA examination in November 2008. He reported constant back pain, only partially relieved with pain medication. He rated back pain as 8 out of 10 with medication and 20 out of 10 without medication. He reported that, after being upright for 2 hours, the lumbar pain was severe and he had left sciatica for at least one year. He stated that he had to take opioids for pain control. He reported that he could no longer participate in any sports due to the lumbar pain. He stated that he had radiation of pain from lumbar area to both buttocks and the pain radiated down the entire posterior aspect of the left leg to the left ankle constantly. He reported burning in all right toes intermittently. He stated that he tripped over his feet at least one to two times weekly and that he fell occasionally. The Veteran denied a history of hospitalization or surgery. He denied a history of urinary incontinence, urinary urgency, urinary retention requiring catheterization, urinary frequency, nocturia, fecal incontinence, erectile dysfunction, numbness, visual dysfunction, and dizziness. He reported a history of obstipation, paresthesias, leg or foot weakness, falls, unsteadiness, fatigue, decreased motion, stiffness, weakness, spasms and pain. He stated that the pain was a constant, sharp ache, and was made worse by standing, walking and any physical activity. He reported that the pain radiated to the left leg and entire posterior aspect to the left ankle. He stated that all right toes burned. He stated that the left leg pain was dull to sharp. He denied flare-ups of the spinal condition. He stated that he was incapacitated by lumbar pain requiring bed rest at least once every weekend. He reported that he used a cane. He stated that walking was limited to one block before the Veteran needed to rest. He reported that he could stand upright for one hour and then he had to rest. He stated that he could not lift more than 20 pounds without developing an increase in the intensity of low back pain. Upon physical examination, there was left and right spasm and pain with motion. There was no atrophy, guarding, tenderness, or weakness. The spasm was not severe enough to be responsible for abnormal gait or abnormal spinal contour. The Veteran had normal posture, head position, symmetry in appearance, and gait type. There was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis. Vibration, pain, light touch, and position sense of the left and right lower extremities were 2 out of 2. There was no abnormal left and right lower extremity sensation. Active and passive lumbar forward flexion were zero to 90 degrees, with active painful motion beginning at 60 degrees. There was active painful motion during range of motion. Active and passive extension was zero to 30 degrees, with active painful motion beginning at 30 degrees. There was active painful motion during range of motion. Active and passive right and left lateral bend were zero to 30 degrees, with active painful motion beginning at 30 degrees. There was active painful motion during range of motion. Active and passive right and left rotation were zero to 30 degrees, with active painful motion beginning at 30 degrees. The impaired joint range of motion or function was caused by pain and weakness. There was no additional range of motion loss due to fatigue, lack or endurance or lack of incoordination. There was lumbar spasm at the mid spinous process of bilateral lumbar paraspinal muscles, left greater than right during range of motion. There was also spasm of the left lower thoracic paraspinal muscles during range of motion. There was no guarding of movement during range of motion. Sensation was normal to light touch and pinprick. Lasegue's sign was positive for both sides. The examiner diagnosed lumbar disc disease, multilevel, with disc bulging, spinal canal and foraminal stenosis, and bilateral sciatica. The examiner noted that this had no effect on the Veteran's usual occupation of electrical contracting foreman. The examiner noted that the Veteran would be the foreman for the next two months, and then he would possibly have to resume manual construction, if able. The low back disability had no effects on feeding, bathing, dressing, toileting, and grooming; mild effects on traveling and shopping; moderate effects on chores; and prevented exercise, sports, and recreation. In March 2010, the Veteran reported that his back problems prevented him from being able to work, and that some days he could not sit, stand or walk. At the November 2011 Board hearing, the Veteran testified that back pain radiated through the legs, with the left worse than the right. He reported difficulty urinating, erectile dysfunction, and some constipation. He stated that doctors did not prescribe bed rest. The Veteran underwent another VA examination in February 2013. He reported dull low back pain which ran down his left leg posteriorly. He stated that sometimes it went down both legs. He reported falls. He stated that he walked to his mailbox and back without a cane. He reported that walking long distances or standing for a long time hurt his back. He denied history of seizures, unconsciousness, and bladder or bowel problems. He reported erectile dysfunction, and that he has not tried any treatment for this. He did not report incapacitating episodes of back pain. He denied bladder or bowel complaints due to the back pain medication. Upon physical examination, flexion was to 65 degrees with objective evidence of painful motion beginning at 65 degrees. Extension was to 15 degrees with objective evidence of painful motion beginning at 15 degrees. Right lateral flexion was to 30 degrees or greater, with objective evidence of painful motion beginning at 30 degrees or greater. Left lateral flexion was to 20 degrees, with objective evidence of painful motion beginning at 20 degrees. Right and left lateral rotation were to 25 degrees with objective evidence of painful motion beginning at 25 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test flexion was to 65 degrees, extension was to 15 degrees, right lateral flexion was to 30 degrees or greater, left lateral flexion was to 20 degrees, and right and left lateral rotation were to 25 degrees. The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The functional loss and functional impairment of the thoracolumbar spine was less movement than normal and pain on movement. The Veteran did not have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, or guarding or muscle spasm of the thoracolumbar spine condition. Right and left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes sensory examination was normal. Right straight leg raising test was negative and left straight leg raising test was positive. The Veteran did not have right or left lower extremity constant pain. He had mild right and left lower extremity intermittent pain. He had no right and left lower extremity paresthesias and/or dysesthesias. He had no right and left lower extremity numbness. There was left sciatic nerve involvement. The right side was not affected by radiculopathy. The left side had mild radiculopathy. The Veteran had no other neurologic abnormalities or findings related to the thoracolumbar spine condition. The Veteran did not have intervertebral disc syndrome. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner diagnosed lumbar disc disease, multilevel, with disc bulging, spinal canal foraminal stenosis. The examiner noted that the Veteran's lumbar disc disease did not cause functional impairment to which disability is attributable and did not impact physical and sedentary employment. The examiner reasoned that the Veteran's pain was controlled by pain medication, and there was no history of incapacitating back pain or hospitalization for back pain and sciatica condition. The examiner noted that there were no documented walk in visits due to the back pain and sciatica condition. The Veteran could flex his spine to 65 degrees. There were no clinical findings of sciatica or neuropathy besides the EMG findings and the Veteran's personal history of sciatica. There was no evidence of right lower extremity radiculopathy other than the Veteran's personal report of the condition. There was no bladder or bowel disorder due to the back condition. The examiner opined that the Veteran's erectile dysfunction was less likely than not due to the back condition. The examiner reasoned that review of the claims file showed years of alcohol abuse, nicotine dependence, hyperlipidemia, peripheral vascular disease and hypertension, which are conditions that can cause erectile dysfunction. On review of the evidence available and discussed above, the evidence on file does not show symptoms warranting a rating in excess of 20 percent. Specifically, the evidence as discussed above does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, even after consideration of pain, weakness and other symptoms described in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). In November 2008, forward flexion was zero to 90 degrees, with active painful motion beginning at 60 degrees. Further, in February 2013, flexion was to 65 degrees with objective evidence of painful motion beginning at 65 degrees. In light of the above, because the findings do not reflect forward flexion of the thoracolumbar spine limited to 30 degrees or less, an evaluation in excess of 20 percent is not warranted. The evidence does not show that there was favorable ankylosis of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5237 (2012). At the November 2008 VA examination, flexion was zero to 90 degrees, with active painful motion beginning at 60 degrees, extension was zero to 30 degrees, with active painful motion beginning at 30 degrees, active and passive right and left lateral bend were zero to 30 degrees, with active painful motion beginning at 30 degrees, and active and passive right and left rotation were zero to 30 degrees, with active painful motion beginning at 30 degrees. At the February 2013 examination, flexion was to 65 degrees with objective evidence of painful motion beginning at 65 degrees. Extension was to 15 degrees with objective evidence of painful motion beginning at 15 degrees. Right lateral flexion was to 30 degrees or greater, with objective evidence of painful motion beginning at 30 degrees or greater. Left lateral flexion was to 20 degrees, with objective evidence of painful motion beginning at 20 degrees. Right and left lateral rotation were to 25 degrees with objective evidence of painful motion beginning at 25 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test flexion was to 65 degrees, extension was to 15 degrees, right lateral flexion was to 30 degrees or greater, left lateral flexion was to 20 degrees, and right and left lateral rotation were to 25 degrees. In light of the above, the findings do not reflect favorable ankylosis of the spine. In reaching these determinations, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet. App. at 205-06. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. In February 2013, the functional loss and/or functional impairment of the thoracolumbar spine was less movement than normal and pain on movement. The Board finds that functional loss due to pain affecting some aspect of the normal working movements of the body, has been considered and does not provide a basis for higher ratings. Moreover, the Board finds that functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination has been considered and 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204-07. Here, given the Veteran's activities of daily living, including his ability to lift 20 pounds, and his overall range of motion, the Boards finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent based on limitation of motion. In addition, the Board acknowledges that the Veteran treats his low back disability with pain medications. Here, given the objective findings of the range of motion studies, the Board concludes that the 20 percent rating most closely approximates the Veteran's functional loss due to limitation of motion. Cf. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). Moreover, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The February 2013 VA examiner noted that the Veteran did not have intervertebral disc syndrome. Moreover, although the Veteran stated in November 2008 that he was incapacitated by lumbar pain requiring bed rest at least once every weekend, in November 2011 he stated that doctors did not prescribe bed rest. Additionally, in February 2013, he did not report any incapacitating episodes over the previous twelve months due to intervertebral disc syndrome and the examiner stated that there was no history of incapacitating back pain. Associated Neurologic Abnormality As provided in Note (1), the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires moderate incomplete paralysis of the sciatic nerve; a 40 percent rating requires moderately severe incomplete paralysis; a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy; an 80 percent rating requires complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The Veteran has reported radiating pain and weakness down the right and left legs. However, in November 2008, there was no abnormal left and right lower extremity sensation. In February 2013, the Veteran did not have right or left lower extremity constant pain. He had mild right and left lower extremity intermittent pain. He had no right and left lower extremity paresthesias and/or dysesthesias. He had no right and left lower extremity numbness. There was left sciatic nerve involvement. The right side was not affected by radiculopathy. The left side had mild radiculopathy. Thus, the Veteran has mild pain and weakness down the right and left legs, and the left side radiculopathy has been noted to be mild. The Board finds that based on the lay and medical evidence that the Veteran has mild radiculopathy of the right and left lower extremities. Resolving any doubt in the Veteran's favor, the Board finds that the medical and lay evidence supports his entitlement to separate 10 percent ratings, and no more, under Diagnostic Code 8520, for radiculopathy of the right and left lower extremities. Other Potentially Associated Objective Neurologic Abnormalities The competent evidence does not reflect any other objective neurologic abnormalities associated with the lumbar spine disability, so as to warrant a separate evaluation on that account. Although the Veteran reported difficulty urinating, and some constipation in November 20011, he denied bowel or bladder function problems in November 2008 and February 2013. Moreover, the February 2013 VA examiner indicated that he did not have erectile dysfunction due to his low back disability. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's lumbar spine disability claim decided here. He has not reported unusual or exceptional features associated with his lumbar spine disability and the discrete manifestation of the lumbar spine disability, i.e., limitation of motion of the lumbar spine and neurological impairment of the lower extremities is contemplated by the rating criteria. The rating criteria are therefore adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted. Thus there is no basis for any further staged ratings, pursuant to Hart, and the preponderance of the evidence is against the grant of a disability rating in excess of that assigned here. ORDER A disability rating in excess of 20 percent for lumbar disc disease is denied. Subject to the laws and regulations regarding monetary benefits, a disability rating of 10 percent, and no more, for radiculopathy of the right lower extremity is granted. Subject to the laws and regulations regarding monetary benefits, a disability rating of 10 percent, and no more, for radiculopathy of the left lower extremity is granted. REMAND The February 2013 VA examiner opined that the Veteran's low back disability did not impact physical and sedentary employment. The February 2013 VA examiner opined that the Veteran's service-connected gout does not impact physical and sedentary employment. The February 2013 VA examiner opined that the Veteran's service-connected rib fractures condition does not impact physical and sedentary employment. The February 2013 VA examiner opined that the Veteran's service-connected history of scar on the right hand index finger does not impact physical and sedentary employment. As the Veteran has not yet undergone a VA examination that comprehensively addressed whether all his service-connected disabilities, in the aggregate, render him unable to secure or follow a substantially gainful occupation, the Board finds that, on remand, he should be afforded a VA examination and opinion to ascertain the impact of his service-connected disorders on his unemployability. Colayong v. West, 12 Vet. App. 524, 538 (1999). Further, unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). In addition, the examiner must consider the impact of the medications the Veteran takes to treat his low back disability in determining the impact of the low back disability, including his right and lower extremity radiculopathy, on his ability to secure and follow a substantially gainful occupation in light of his education, training, and work history. Lastly, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain, physically or electronically, all pertinent, outstanding records of the Veteran's treatment for his service-connected disability. This must include records of the Veteran's treatment from the VA Sarasota Community Based Outpatient Clinic (CBOC) dated since March 2013. 2. Have the Veteran undergo an appropriate VA examination, to be conducted, if possible, by a VA vocational specialist, to determine the impact of his service-connected disabilities on his ability to work. After reviewing the record and conducting any necessary tests, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, and in particular, his low back disability, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation in light of his education, training, and work history. All findings and conclusions should be set forth in a legible report, accompanied by a rationale. 3. Adjudicate the issue of entitlement to TDIU. If the benefit sought remains denied, the Veteran and his representative must be furnished an SSOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs