Citation Nr: 1317059 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-17 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease of the thoracolumbar spine with fusion at T-11 through L-3 evaluated as 10 percent disabling prior to December 16, 2010 and as 40 percent disabling from December 16, 2010. 2. Entitlement to an increased rating for residuals of a fracture of the left medial epicondyle with epicondylitis evaluated as non-compensable prior to December 16, 2010 and as 10 percent disabling from December 16, 2010. 3. Entitlement to an increased separate rating for neurological impairment of the right lower extremity, evaluated as 10 percent disabling from December 16, 2010. 4. Entitlement to an increased separate rating for neurologic impairment of the left lower extremity, evaluated as 10 percent disabling from December 16, 2010. 5. Entitlement to Total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse, R.S. ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1986 to December 1998 and from September 1999 to June 2007. These matters come before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Seattle, Washington. In March 2013, the Veteran and a witness testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. At the hearing, the Veteran submitted additional written evidence with a waiver of RO consideration. During the pendency of the Veteran's appeal on the issue of entitlement to an increased rating for his thoracolumbar disability, the RO granted separate evaluations for neurological impairment of the right lower extremity and left lower extremity. Therefore, those issues are now before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability(TDIU) may be part of a claim for an increased rating. The Veteran has indicated that he is unable to work due to his service-connected disabilities; thus, the issue of entitlement to TDIU is before the Board. 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. FINDINGS OF FACT 1. During the rating period on appeal prior to December 16, 2010, the Veteran's degenerative joint disease of the thoracolumbar spine with fusion at T-11 through L-3 was manifested by complaints of pain, muscle spasm, and limitation of motion; objectively, he had motion limited to 45 degrees of flexion, and limited to 10 degrees of extension, muscle spasm causing abnormal gait, left nerve root impingement equivalent to no more than mild incomplete paralysis, and no bowel or bladder symptoms. 2. During the rating period on appeal from December 16, 2010 the Veteran's degenerative joint disease of the thoracolumbar spine with fusion at T-11 through L-3 has been manifested by complaints of pain, muscle spasm, and limitation of motion; objectively, he has he has motion limited to 30 degrees of flexion, and limited to 30 degrees of extension, muscle spasm causing abnormal gait, bilateral leg radiculopathy equivalent to no more than mild incomplete paralysis, and no bowel or bladder symptoms. 3. During the rating period on appeal prior to December 16, 2010, the Veteran's residuals of a fracture of the left medial epicondyle with epicondylitis was manifested by complaints of pain and limitation of motion; objectively, he had flexion to 145 degrees and extension to 0 degrees. 4. During the rating period on appeal from December 16, 2010, the Veteran's disability of residuals of a fracture of the left medial epicondyle with epicondylitis has been manifested by complaints of pain and limitation of motion; objectively, he has flexion to 145 degrees and extension to 40 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, and no higher, for degenerative joint disease of the thoracolumbar spine with fusion at T-11 through L-3 prior to December 16, 2010 have been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for a disability rating in excess of 40 percent for degenerative joint disease of the thoracolumbar spine with fusion at T-11 through L-3 from December 16, 2010 have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 3. The criteria for an increased rating for left medial epicondyle with epicondylitis, evaluated as noncompensable prior to December 16, 2010, and as 10 percent disabling from December 16, 2010, have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Codes 5206-5022 (2012). 4. The criteria for a separate compensable rating for neurological impairment of the right lower extremity prior to December 16, 2010, and in excess of 10 percent from December 16, 2010, have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.59, 4.124a, Diagnostic Code 8520 (2012). 5. The criteria for a separate rating 10 percent rating and no higher for neurological impairment of the left lower extremity prior to December 16, 2010, have been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.59, 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for a separate rating in excess of 10 percent for neurological impairment of the left lower extremity from December 16, 2010, have not been met. 38 U.S.C.A. §§1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.59, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided to the Veteran in December 2007. VA has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA and private medical records, lay statements, and the statements of the Veteran, to include his testimony at Board hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. An April 2012 VA clinical record reflects that an MRI and EMG were ordered for treatment purposes; however, a subsequent VA clinical record reflects that the Veteran reported that he had canceled the MRI and had not rescheduled it. (See April and October 2012 VA records.) Moreover there is no evidence of record that he reported for the EMG. In March 2013, the Veteran submitted additional clinical records with a waiver of RO consideration. None of the records reflects that he reported for an MRI or an EMG. In addition, the Veteran testified at the March 2013 Board hearing, that he had not undergone a neurological examination since 2006 or 2007. An October 2012 VA clinical record reflects that the Veteran had not been seen since May 2012, had not followed up or filled his medication since shortly after May 2012, and reported that he would not go back to the Spine clinic. Based on the foregoing, the Board finds that VA does not have a further duty to assist the Veteran in obtaining any records. Examinations were obtained in 2007, 2010, and 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the examinations are adequate, as they include clinical examinations and interviews with the Veteran with regard to his symptoms. The reports of the examination contain findings necessary to evaluate the Veteran's employability. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). In addition, based on the Veteran's reported symptoms and the clinical evidence of record, the Board finds that a further VA examination is not necessary to adjudicate the Veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Rating Disabilities - in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Moreover, an appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. Rating Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2012), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Rating the Spine The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2012). Under these relevant provisions, 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 is rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. In addition, intervertebral disc syndrome may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. Rating the Elbow Elbow disabilities are rated under Diagnostic Codes 5205 to 5213. Under DC 5206, a 10 percent disability rating is warranted if the range of motion for either the major or minor forearm is limited to 100 degrees of flexion; a 20 percent disability rating is warranted if the flexion of either forearm to limited to 90 degrees; a 20 percent disability rating is warranted if flexion of the minor forearm is limited to 70 degrees; a 30 percent disability rating is warranted if flexion of the minor forearm is limited to 55 degrees; and a 40 percent disability rating is warranted if flexion of the minor forearm is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206. Under DC 5207, a 10 percent disability rating is warranted if extension of either the major or minor forearm is limited to 45 or 60 degrees; a 20 percent disability rating is warranted if extension of either forearm is limited to 75 degrees; a 20 percent disability rating is warranted if extension of the minor forearm is limited to 90 degrees; a 30 percent disability rating is warranted if extension of the minor forearm is limited to 100 degrees; and a 40 percent disability rating is warranted if extension of the minor forearm is limited to 110 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5207. Under DC 5208, a 20 percent rating is warranted if the forearm flexion is limited to 100 degrees and extension is limited to 45 degrees. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the current claim. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Back In a statement received in December 2007, the Veteran asserted that an increased evaluation was warranted for his service-connected back disability. Normally, the rating period on appeal for a claim is one year prior to the date of receipt of the increased rating claim if the evidence reflects an increase in disability during that one year period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 38 C.F.R. § 3.400(o)(2) (2012). In the present circumstances, the Veteran separated from service in June 2007, and was granted service connection effective from July 1, 2007; thus, the rating period on appeal may only be from July 1, 2007. However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of the disability is for consideration in rating a disability. Prior to December 16, 2010 The Veteran's back disability is evaluated as 10 percent disabling prior to December 16, 2010. The Veteran would be entitled to a higher evaluation if his back was ankylosed or if his forward flexion was greater than 30 degrees but not greater than 60 degrees, or if the combined range of motion of the thoracolumbar spine was not greater than 120 degrees, or if muscle spasm or guarding was severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A January 2007 private record from Peninsula Pain Clinic reflects that the Veteran presented with chronic lower and upper back pain. He described a nagging, sharp, and shooting pain primarily in his thoracic and lumbar paravertebral musculature. He also reported that he experiences occasional radicular pain into his legs, and that at the end of the day, he is almost unable to walk. It was noted that he had antalgic gait. It was noted that he experiences occasional radicular pain in to the legs. He denied any loss of bowel or bladder function. A June 2007 examination report from a May 2007 QTC examination by Dr. M.S. is of record. It reflects that the Veteran reported constant back pain. Upon clinical examination, the examiner found no evidence of radiating pain on movement. No tenderness was noted. There was a negative straight leg raising test on the left and right. There was no ankylosis of the lumbar spine. Range of motion of the thoracolumbar spine was as follows: flexion was to 80 degrees with pain beginning at 80 degrees; extension was to 22 degrees with pain beginning at 22 degrees; right lateral flexion was to 20 degrees with pain beginning at 20 degrees; left lateral flexion was to 24 degrees; right rotation and left rotation were both full at 30 degrees. There was pain on repetitive use which additionally limited his function. There were no signs of intervertebral disc syndrome (IVDS). It was noted that muscle spasm was absent. His gait was within normal limits. Upon neurological examination in May 2007, motor function of the lower extremities was normal, sensory function was abnormal with findings of decreased sensation of the left large toe. (The Veteran is service connected for left great toe paresthesia.) The right and left lower extremity reflexes revealed knee and ankle jerks of 2 +. The May 2007 examiner noted that the Veteran had complaints of lumbar pain with minimal palpation. The examiner opined that the effect of the Veteran's back disability on his usual occupation was "none". The effect on his daily activity was "none." The Veteran has submitted what is basically a diary of his pain. He notes that on numerous days beginning in August 2007, his back and left elbow pain was so bad that he could hardly move, and that sleep was difficult. October 2007 VA clinical records reflect that the Veteran had lumbago with noted muscle spasm throughout his mid and lower back area. He was prescribed methocarbamol and naproxen. They also note that he denied any radiation down the leg, and denied difficulty controlling his bowel and bladder. He reported that sometimes his legs get weak. The record reflects that the Veteran was positive for several of the Waddell signs, but that this "finding may just be this [patient] and then it may not be." The Board notes that positive Waddell signs are indicative that the Veteran's response to certain movements was not appropriate or the expected response. The examiner noted that "just touching the clothing causes pain." It was noted that spasticity of the paravertebral musculature was present. An October 2007 outpatient record reflects that the Veteran was seen for back pain. It was noted that he was not on any current medications except over the counter Excedrin for his back pain. November 2007 records reflect that the Veteran reported that his left leg was weak. There was no sensation deficit, and no bowel or bladder symptoms. December 2007 records reflect that the Veteran reported chronic back and neck pain with radiation to both arms and left leg. It was noted that he had left leg sciatica symptoms. A December 4, 2007 clinical record reflects that an MRI shows "some impingement of the left nerve root (patient does have left leg sciatica [symptoms.])" A January 2008 report from Dr. A.B. is of record. It reflects that upon examination the Veteran had chronic cervical, thoracic, and lumbar pain with limited active range of motion. The examiner opined that the Veteran probably had a systemic disorder - ankylosing spondylitis. The examiner noted that the Veteran cannot work as a police officer, but should remain physically active otherwise he will become deconditioned and will gain weight. It was noted that he had limited lateral flexion and rotation to approximately 10 degrees. Lumbar flexion was 45 degrees and extension was 10 degrees. The Veteran reported no shooting pain from the back going down the legs. He reported taking medication daily since November 2007. January 2008 clinical records reflect that the Veteran reported that he has been unable to work since November 1, 2007 due to disabling back pain. A February 2008 report from Dr. A.B. reflects that the Veteran has a chronic pain syndrome involving the thoracic and lumbar region probably from thoracic and lumbar strain. It was noted that he "has very low tolerance for pain as shown by his difficulty tolerating the NCS/EMG." He also found that the Veteran's "complaints of pain are out of proportion to the physical exam and the diagnostic test results." Dr. A.B. recommended that the Veteran see a neurologist regarding the combination of back pain and upper extremity numbness. It was noted that the Veteran had an antalgic gait. The examiner noted that it was "[s]afe for him to return to work on light duty with no lifting over 10 pounds. He can do office work." A February 2008 record reflects that the Veteran has an abnormal gait due to lumbago. A January 2008 private record for Pain Management Consultants reflects that the Veteran complained of constant pain. He also noted he had had numbness, tingling, and pain traveling down his legs. In a February 2008 statement, the Veteran's spouse reported that the Veteran complains that his left arm disability interrupts his sleep, and his back bothers him. In a statement dated in February 2008, J. H. stated that in August 2007, one month after the Veteran retired from the Navy, his back condition "turned to worst, meaning he was unable to stand or walk for a long period of time." An April 2008 neurology record reflects that the Veteran was placed on light duty on November 1, 2007. He reported that oxycodone helps his pain. May 2008 records reflect that the X-ray and MRI studies show no radiculopathy. A June 2008 clinical record reflects that the examiner was "not certain why [the Veteran's disability is] so symptomatic and limiting. I have seen much worse appearing spines without this degree of impairment." In sum, the evidence is in equipoise as to whether the Veteran has muscle spasm or guarding severe enough to result in an abnormal gait. The January 2007 private record from Peninsula Pain Clinic reflects that the Veteran had antalgic gait; the June 2007 examination report reflects that he did not have muscle spasm and that his gait was within normal limits; October 2007 VA clinical records reflect that the Veteran had lumbago with noted muscle spasm throughout his mid and lower back area; February 2008 records reflect that he had an abnormal gait due to lumbago. There has also been some clinical concern as to whether the Veteran's complaints of pain are exaggerated or if he simply has a very low threshold for pain. The October 2007 VA clinical records reflect that the Veteran had positive Waddell signs; a February 2008 report reflects that the Veteran has a very low tolerance for pain, and that the Veteran's complaints of pain are out of proportion to the physical examination and the diagnostic test results; a June 2008 clinical record reflects that the examiner was not certain why the Veteran had such severe symptoms and limitations because the examiner has seen much worse appearing spines in other patients without the degree of impairment which the Veteran reported. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), and finds that there is no clear evidence that the Veteran was fraudulent in his reports of symptoms; moreover, clinicians have noted antalgic gait and muscle spasms. Based on the record as a whole, the Board finds that the Veteran is entitled to a 20 percent evaluation, and no higher, for his service-connected back disability prior to December 16, 2010. The Board finds that a higher evaluation is not warranted as the Veteran does not have unfavorable ankylosis, forward flexion limited to 30 degrees or less, or favorable ankylosis of the entire spine. The Board has considered the Veteran's complaints of stiffness and pain but finds that even with such consideration, his symptoms do not rise to the level of ankylosis or forward flexion limited to 30 degrees. The Board has also considered whether the Veteran is entitled to a separate rating for neurological impairment due to his back disability prior to December 16, 2010. The evidence is against a finding that the Veteran has bowel or bladder symptoms due to his spine disability. (See January, October, and November 2007 clinical records. ) The Board has also considered other neurological impairment, such as nerve impairment causing radiating pain, weakness, or numbness. Separate ratings for neurological manifestations of a spine disability may be warranted under 38 C.F.R. § 4.124a (2012) if supported by the evidence. For purposes of evaluation, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The January 2007 record reflects that the Veteran reported that he experiences occasional radicular pain in to the legs. A June 2007 examination report from a May 2007 QTC examination reflects that upon clinical examination, the examiner found no evidence of radiating pain on movement. Upon neurological examination in May 2007, motor function of the lower extremities was normal, and sensory function was normal (with the exception of the service-connected left large toe.) The right and left lower extremity reflexes revealed knee and ankle jerks of 2 +. He had a negative straight leg test. October 2007 VA clinical records reflect that the Veteran denied any radiation down the leg, and denied difficulty controlling his bowel and bladder. November 2007 records reflect that there were no sensation deficiencies and no bowel or bladder symptoms; the Veteran reported that his left leg was weak. December 2007 records reflect that the Veteran reported chronic pain with radiation to the left leg. It was noted that he had left leg sciatica symptoms. A January 2008 record reflects that the Veteran reported no shooting pain from the back going down the legs. A January 2008 private record for Pain Management Consultants reflects that the Veteran complained pain traveling down his legs. A February 2008 report reflects that the thoracic and lumbar pain does not radiate down the legs and there is no numbness in the lower extremities. May 2008 records reflect that the X-rays and MRI studies show no radiculopathy; however, a December 2007 clinical record reflects that an MRI showed left nerve root impingement. Thus, the record is unclear as to whether or not the Veteran has objective evidence of radiculopathy, or sciatica, of the left nerve root. Based on the foregoing, the Board gives the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), and finds that he is entitled to 10 percent and no higher for left nerve root impingement. The evidence does not reflect objective findings of right nerve root impingement or right leg sciatica. The Board has also considered whether the Veteran is entitled to a higher rating for under the criteria for IVDS, but finds that he is not. The June 2007 examination report reflects that there were no signs of IVDS. There is no competent credible evidence of record that the Veteran had IVDS that required bed rest prescribed by a physician and treatment by a physician. In sum, the Veteran is entitled to a 20 percent evaluation, and no higher, for his service connected back disability based on his muscle spasm which causes antalgic gait, and entitled to a 10 percent evaluation, and no higher, for left nerve root impingement. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). From December 16, 2010 The Veteran underwent a QTC examination in December 2010. Based on that examination, the Veteran's disability was evaluated as 40 percent disabling from the date of the examination. The Veteran would be entitled to a rating in excess of 40 percent of his back disability if he had unfavorable ankylosis of the entire thoracolumbar spine, which would warrant a 50 percent rating, or unfavorable ankylosis of the entire spine, which would warrant a 100 percent rating. The Board finds that the evidence of record is against a finding of ankylosis. The December 2010 QTC examination report reflects that the Veteran had flexion to 30 degrees, with pain at 30 degrees. He had extension to 5 degrees, with pain at 5 degrees. He also had right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, right rotation to 10 degrees, and left rotation to 10 degrees, with pain beginning at those degrees. The examiner found that joint function is additionally limited after repetitive use but only in that flexion was limited to an additional 10 degrees of motion. Thus, the evidence is against a finding of ankylosis. The Veteran also underwent a QTC examination in July 2012. The examination report reflects that the Veteran had 35 degrees of flexion with painful motion at 0 degrees. He also had 30 degrees of extension with painful motion at 0 degrees. He had full range of motion of lateral flexion and rotation, with pain throughout the range of motion. The Board finds that the Veteran's disability is not analogous to ankylosis. It is significant that the clinical evidence is against a finding of weakness, lack of endurance, incoordination, or fatigue after repetitive motion. It is also significant that the Veteran did not have atrophy of the limps. The 2012 report reflects that the Veteran did not have muscle atrophy and had normal muscle strength in the hips, knees, ankles, and toes. Pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. As the Court noted in Mitchell v. Shinseki, Id., a Veteran is not entitled to the maximum disability ratings simply because the Veteran exhibits pain throughout the range of motion. The evidence is against a finding that the Veteran has bowel or bladder symptoms due to his spine disability. (See December 2010 and July 2012 QTC examination reports.) The Board acknowledges that the Veteran testified that sometimes it hurts when he has a bowel movement; however, there is no competent evidence that he has bowel dysfunction due to his service-connected back disability. He has consistently denied bowel problems on clinical examination, the clinical records are negative for a bowel disability and the Veteran has not testified as to any leakage. The Board has also considered other neurological impairment, such as nerve impairment which causes pain or sensory deficit. The Veteran is evaluated as 10 percent disabling each for mild neurological impairment of right and left lower extremity from December 2010. The Veteran would be entitled to a higher evaluation if he had moderate incomplete paralysis of the nerves. The 2010 QTC examination report reflects that there was positive straight leg testing on the right and left. The examiner found that the lumbar spine and sacral spine sensory functions were impaired. The examiner found that there were signs of IVDS and the most likely peripheral nerve is the Sciatic Nerve. The Veteran did not have any lumbosacral motor weakness. He had 2+ reflex knee and ankle jerks. He was diagnosed with bilateral sciatic sensory IVDS. The July 2012 examination report also reflects that the Veteran's reflexes were normal upon examination of the knees and ankles. His sensory examination was also normal for the thigh, lower leg, feet, and toes. Straight leg raising test was negative. He did not have any radicular pain or other signs of symptoms due to radiculopathy. He had no neurologic abnormalities. He did not have IVDS. He did not have radiculopathy. He had a normal sensory examination. Based on the record as a whole, the Board finds that the Veteran is not entitled to separate ratings in excess of 10 percent for the right lower extremity and 10 percent for the left lower extremity for neurologic symptoms of his back disability. The Board finds that the Veteran's symptoms are analogous to no more than a mild incomplete paralysis of the foot, and are not comparable to a moderate disability. The Veteran's intermittent symptoms of tingling, numbness, and pain are contemplated in the finding that his symptoms are mild. The Board has also considered whether the Veteran is entitled to a higher rating for under the criteria for IVDS, but finds that he is not. As noted above, the 2010 QTC examiner found that the Veteran had IVDS. The 2012 QTC examiner found that the Veteran did not have IVDS. The Veteran testified that that he has to stay in bed for up to two days at a time, and that situation has arisen three to four times in the last 12 months (See Board hearing transcript pages 15 and 16.). However, the record does not reflect that during the rating period on appeal, the Veteran has IVDS that requires bed rest prescribed by a physician and treatment by a physician, or that if he had such, it would provide the Veteran with a rating higher than the 20 percent under the general formula for rating the spine. In sum, the evidence is against a finding that the Veteran is entitled to higher ratings for his back disability, with neurological symptoms from December 16, 2010. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Left Elbow In a statement received in December 2007, the Veteran asserted that an increased evaluation was warranted for his service-connected left elbow disability. As noted above, normally, the rating period on appeal for a claim is one year prior to the date of receipt of the increased rating claim if the evidence reflects an increase in disability during that one year period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 38 C.F.R. § 3.400(o)(2) (2012). In the present circumstances, the Veteran separated from service in June 2007, and was granted service connection effective from July 1, 2007; thus, the rating period on appeal may only be from July 1, 2007. However, in accordance with 38 C.F.R. §§ 4.1 and 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the history of the disability is for consideration in rating a disability. The Veteran's left elbow disability is evaluated under DC 5206 based on limitation of motion, as noncompensable prior to December 16, 2010 and as 10 percent disabling from December 16, 2010. As noted above, the Veteran has submitted what is basically a diary of his pain. He notes that on numerous days beginning in August 2007, his back and left elbow pain was so bad that he could hardly move, and that sleep was difficult. Prior to December 16, 2010 The Veteran would be entitled to a compensable rating prior to December 16, 2010 if the evidence reflected that his forearm flexion was limited to 100 degrees or less, or if his forearm extension was limited to 45 degrees or greater. A 2007 QTC examination report reflects that the Veteran reported pain once a day which lasts for four hours and travels down to the fingers. The pain level was a 2 out of 10, with 10 being the worst. It was noted that at the time of pain, he can function without medication. He reported that the disability does not cause incapacitation. Upon clinical examination, there were signs of tenderness of the medial epicondyle. The range of motion was flexion to 145 degrees and extension to 0 degrees. There was no additional functional limitation. A February 2008 private medical record reflects that the Veteran underwent an NCS/EMG and complained of severe pain during the test with the electrical stimulation and the EMG needle insertion. The clinical findings were that it was a normal study. Based on the foregoing, the Board finds that a compensable evaluation is not warranted under DCs 5205 (ankylosis), 5206 (limitation of flexion), 5207 (limitation of extension), or 5208 (limitation of flexion and extension). There is also no competent clinical evidence of a flail joint, marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, nonunion of the radius and ulna with flair false joint, nonunion or malunion of the ulna, nonunion or malunion of the radius, or supination and pronation impairment; thus DCs 5209 through 5213 are not applicable. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). From December 16, 2010 A December 2010 QTC examination report is of record. The Veteran denied stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation, or dislocation. He reported weakness and pain. He reported flare-ups up to twice a day lasting for two hours each. The pain was a level 7 out of 10 at its worst. Upon clinical examination, the flexion was to 145 degrees with pain at 145 degrees. Extension was to 0 degrees, with pain at 0 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. A July 2012 QTC examination report is of record. It reflects that the Veteran described flare-ups as tingling from elbow to finger tips. Upon clinical examination, the Veteran had flexion to 145 degrees with no objective evidence of painful motion. Extension ended at 40 degrees with painful motion at 40 degrees. There was no additional limitation of function after repetitive use. He had full muscle strength and there was no ankylosis. He had no flail joint, joint fracture, and/or impairment of supination or pronation. He had not had a total elbow joint replacement, or surgery. The examiner noted that at the time, the Veteran's periostitis was quiescent, or inactive. The Board has considered the Veteran's complaints that he is not always steady when gripping things with his left hand, that he sometimes drops things, that he has shooting pain and numbness, and that he has difficulty with sleep due to both of his arms. The objective clinical records reflect that the Veteran's left elbow has normal muscle strength upon testing (See 2012 QTC report) and no weakened movement was found upon clinical examination (See 2010 and 2012 QTC reports). The Veteran's pain and tingling, as they affect his range of motion, has been considered in the 10 percent evaluation. Based on the foregoing, the Board finds that the Veteran's left elbow disability does not warrant a compensable rating prior to December 16, 2010 and does not warrant a rating in excess of 10 percent for any period on appeal. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extra scheduler for back and left elbow disabilities The Board has considered that the Veteran has several service-connected disabilities and has determined which symptoms are attributable to a service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Ordinarily, the VA 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). An extra-schedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) . The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected disabilities of the spine and elbow. The criteria consider that pain causes limitation of motion, and that nerves may be affected by his back disability. The rating criteria consider that the Veteran's symptoms may make employment more difficult; hence, the reason for compensation. The Board has also considered the Veteran's statements that his disabilities cause tingling in the arm, and that his back and elbow symptoms wake him up from his sleep. However, the evidence does not reflect that any such symptoms caused frequent hospitalization or marked interference with work. Therefore, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a rating of 20 percent and no higher for degenerative joint disease of the thoracolumbar spine with fusion at T-11 through L-3 prior to December 16, 2010 is granted. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the thoracolumbar spine with fusion at T-11 through L-3 from December 16, 2010 is denied. Entitlement to an increased rating for residuals of a fracture of the left medial epicondyle with epicondylitis is denied, evaluated as noncompensable prior to December 16, 2010, and as 10 percent disabling from December 16, 2010 is denied. Entitlement to a separate compensable rating for neurological impairment of the right lower extremity prior to December 16, 2010, and a rating in excess of 10 percent from December 16, 2010, is denied. Entitlement to a separate rating 10 percent rating, and no higher, for neurological impairment of the left lower extremity prior to December 16, 2010 is granted. Entitlement to a separate rating in excess of 10 percent for neurological impairment of the left lower extremity from December 16, 2010 is denied. REMAND Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for 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. Clinical records in 2008 reflect that the Veteran could do office work, but could not lift more than 10 pounds, and had limitations with kneeling bending, stooping, squatting, twisting, and crawling. (See February 2008 Physical Medicine and Rehabilitation report, and July 2008 clinical record.) An August 2008 memorandum from the Human Resources Specialists reflects that the agency could no longer accommodate the Veteran in his position as a police officer; however, he was offered a permanent full time position as an office assistant at the same pay as his existing rate of police officer pay. A March 2012 VA clinical record reflects that the Veteran was currently employed as a truck driver for a logging company. The July 2012 QTC report reflects that the Veteran's back disability limits his ability to lift and bend. His left elbow disability limits his ability to lift. The Veteran reported that he was unable to hold a job due to medical appointments and sick leave; however, an October 2012 VA clinical record reflects that the Veteran had not been seen since May 2012, had not followed up or filled his medication since shortly after May 2012, and reported that he would not go back to the Spine clinic. The Veteran testified at the March 2013 Board hearing that he lost his job as a police officer because of his back. He reported that after he was transferred to an administrative position, he kept taking sick leave days. The Veteran did not indicate that he was fired; to the contrary, he indicated that he left to get a "better job", and that he became a truck driver. He reported that he was fired from his job as a truck driver because of taking time off for sick leave. (See Board hearing transcript pages 14 and 15.) Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA notice letter for the issue of entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159 (2012), and applicable legal precedent. 2. Thereafter, schedule the Veteran for a general medical examination to determine whether his service-connected disabilities, considered in combination, (and only his service-connected disabilities) render the Veteran unemployable. The clinician is requested to furnish an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's service-connected disabilities cause him to be unable to obtain and retain substantially gainful employment. The clinician is requested to provide a complete rationale for his or her opinion, as a matter of medical probability, based on his or her clinical experience, medical expertise, and established medical principles. The clinician should review the claims folder, and this fact should be noted in the accompanying medical report. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. See 38 C.F.R. § 3.655 (2012). 3. Following completion of the above, adjudicate the issue of entitlement to TDIU. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs