Citation Nr: 1317971 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-06 966A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chronic lumbar strain. 2. Entitlement to a rating in excess of 10 percent prior to January 11, 2011 and beginning March 1, 2011 for a left shoulder disability, status post rotator cuff repair. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1981 to October 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Baltimore RO. In October 2010, the Veteran testified at a Central Office hearing before the undersigned; a transcript of this hearing is of record. In May 2011, the Board denied an increased disability rating for a right shoulder disorder, and remanded the present claims for additional development. In a May 2012 rating decision, the Appeals Management Center (AMC) granted a temporary total rating based on left shoulder surgical treatment necessitating convalescence from January 11, 2011 to March 1, 2011. Through his representative, the Veteran submitted additional records in June and July 2012; initial VA consideration of these records was waived by the representative in the April 2013 Informal Hearing Presentation. FINDINGS OF FACT 1. For the period beginning the date of receipt of claim of June 21, 2006 to February 4, 2008; and for the period from December 19, 2008 and thereafter, the service connected low back disability was manifested by no worse than forward flexion to 65 degrees, a combined range of motion that exceeded 120 degrees, and an absence of muscle spasm or guarding productive of abnormal gait or abnormal spinal contour; throughout the appeal, there was no evidence of spinal ankylosis or associated bowel or bladder impairment. 2. From February 5, 2008 to December 18, 2008, the service-connected low back disability was, at its worst, shown to be manifested by forward flexion to 60 degrees without no ankylosis of the thoracolumbar spine. 3. Since December 11, 2007, the service-connected low back disability has had associated mild right lower extremity radiculopathy. 4. The service-connected non-dominant left shoulder disability was primarily manifested by abduction limited to no worse than 145 degrees, pain, and stiffness. CONCLUSIONS OF LAW 1. For the period including June 21, 2006 to February 4, 2008; and for the period from December 19, 2008 and thereafter, the criteria for a rating in excess of 10 percent for lumbosacral strain with degenerative disc disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code (Code) 5237 (2012). 2. From February 5, 2008 to December 18, 2008, the criteria for a 20 percent rating, but no higher, for lumbosacral strain with degenerative disc disease are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Code 5237 (2012). 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a separate 10 percent evaluation for right lower extremity radiculopathy associated with a lumbosacral spine disorder, effective December 11, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.124a, Code 8520 (2012). 4. Prior to January 11, 2011 and beginning March 1, 2011, the criteria for a rating in excess of 10 percent for a left shoulder disability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Codes 5019, 5201 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A June 2006 letter provided the Veteran with notice of VA's duties to notify and assist him in the development of his claims consistent with the laws and regulations outlined above. The RO provided the Veteran the required notice of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence, and the assistance that VA would provide in obtaining supporting evidence. It is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. 38 C.F.R. § 3.103(c)(2) (2012); See also Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the October 2010 Central Office hearing, the undersigned Veterans Law Judge satisfied theses requirements by identifying the issues on appeal and discussing evidence related to the claims and possible development needed. VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records are associated with his claims file, and VA has obtained all pertinent/identified records that could be obtained. In compliance with the May 2011 Board remand, the AMC undertook additional development of the claims and associated the records with the claims file. The Veteran was afforded additional VA examination, which were adequate for rating the disabilities. See Barr v. Nicholson, 21. Vet. App. 303 (2007); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Merits of the Claims Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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 of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. §§ 4.40, 4.45 (2012). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59 (2012). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. LUMBAR SPINE DISORDER The Veteran contends his service-connected low back disability warrants a higher rating, particularly in light of the amount of work he missed as a result of the disability. See March 2009 substantive appeal and hearing testimony. The Board will in part grant the appeal. On the July 2006 VA examination, the Veteran reported low back pain without radiculopathy, or bowel or bladder symptoms. Activities that aggravated his pain were repetitive motions such as stooping, bending, and squatting. He avoided lifting more than 20 to 25 pounds out of concern that it would aggravate back and shoulder pain. He reported having flare-ups 3 to 4 times a year that lasted on average from 3 to 4 days. His most recent flare-up was approximately in May 2006 and lasted 3 days; he took off 3 days from work but did not seek medical treatment. The Veteran reported that he leaned to the side in a forward flexed position related to muscle spasms. He reported additional loss of range of motion during flare-ups, but the degree was difficult for him to estimate. He took anti-inflammatory drugs as needed when back and shoulder pain was severe, which offered mild to moderate pain relief. He performed occupational duties regarding his shoulder and back other than when there were flare-ups. He performed activities of daily living and exercised on a fairly regular basis. Examination of the spine revealed forward flexion to 90 degrees, extension to 15 degrees, bilateral bending to 25 degrees, and bilateral rotation to 25 degrees. There was no obvious kyphosis or scoliosis. There was no atrophy or muscle weakness and strength was 5/5 in the lower extremities. Light sensation was intact. In December 2007, the Veteran sought treatment for back pain, which was located in the lower back region and did not radiate below the knees. It was not work related and the intensity of the pain was 9/10. He reported having pain off and on for years. On examination, there was tenderness to palpation of the mid upper lumbar area. Motor, sensory, and reflex testing was normal. The straight leg test was negative on the left but positive on the right at 45 degrees. December 2007 x-rays of the lumbar spine revealed prominent syndesmophytes at L2-L3 on the right side. An MRI that same month revealed mild degenerative changes. Physical therapy records from February through March 2008 contains range of motion studies of the lumbar that reflect flexion to 60 degrees, extension to 25 degrees, left rotation to 30 degrees, right (painful) rotation to 25 degrees, left side end to 20 degrees, and right bend to 25 degrees. His current pain level was 4/10. May 2008 treatment records show that the Veteran reported having worsening pain over the past 6 months with no inciting event. It was predominantly in the lower back with radiation into the right buttock and thigh. Pain was estimated to be 5-6/10 on one occasion and 8-10/10 in intensity at another appointment. He reported hip weakness and tingling in his toes/foot but there was no bowel or bladder dysfunction. His pain worsened with bending or lifting and it was severe enough to require bed rest at times. He had gone to the emergency room on occasion and he had relief with rest. Examinations of his back did not reveal focal tenderness, or spasms. He had a normal heel-toe gait pattern and there was no kyphosis, lordosis, or scoliosis. Range of motion was within normal limits. Motor strength was grossly normal and sensation and reflexes were intact and symmetrical. The impression was lumbar degenerative disc disease with chronic discogenic back pain. A June 2008 record contained a diagnosis of lumbar degenerative disc disease with radiculopathy. He was given epidural injections that month. A July 2008 neurological consultation by a private physician shows the Veteran reported his back pain had increased in November 2007 and that he had physical therapy and 3 epidural shots but his symptoms continued. The pain was associated with numbness and tingling but did not increase with coughing or sneezing. There were no bowel or bladder symptoms. On examination, there was no focal motor weakness or muscle atrophy; sensation was intact; and reflexes were 1-2+ and symmetrical. There was tenderness in the lumbosacral spine and sciatic notch on the right side. There was a positive straight leg test. The impression was lumbar disc herniation with lumbar radiculopathy. A July 2008 MRI of the lumbar spine revealed minimal degenerative disc disease facet hypertrophy without central canal or foraminal stenosis, and at the L4-L5 level there was a large right paracentral disc extrusion which resulted in moderate central canal stenosis. There was also significant effacement of the right lateral recess with direct impingement upon the traversing right L5 nerve root. A July 2008 letter from the Veteran's supervisor indicated he was an excellent employee but that his physical condition interfered with his work. A letter written by a colleague states the Veteran had attacks of back pain which had intensified, affected his job performance and he was unable to perform his job duties at times. In July 2008, the Veteran also submitted a statement that indicated he had 5 to 6 episodes a year in which his back "went out." He described the impact of his disability on his life. He required assistance in dressing due to difficulty with bending, he had not slept well for the past 8 weeks, and since the beginning of the year he used over 200 hours of sick and annual leave due to his inability to work and to attend appointments. On December 2008 VA examination, the Veteran reported having intermittent back pain with frequent radiation to the right hip, ankle, and foot without numbness, tingling, or weakness. His pain increased with strenuous activity and eased with medication. However, clinical examination of the lumbar spine revealed forward flexion to 80 degrees, extension to 20 degrees, bilateral flexion to 20 degrees, and bilateral rotation to 30 degrees. There was no objective evidence of pain on motion and there was also no evidence of tenderness or paraspinal spasm. The Veteran's gait was normal and he could heel and toe walk, but he refused to hop. He squatted with mild difficulty. The examiner noted that there was no evidence of weakened movement, excessive fatigability, or incoordination. There was also no evidence of these factors or that pain decreased motion during exacerbations or repetitive activity. Flare-ups occurred daily and were moderate in severity and duration. He did not require use of an assistive device such as a cane, crutch, or walker and he was not unsteady. He was able to perform activities of daily living and his usual job. There was no history of physician prescribed bed rest within the past 12 months. The peripheral nerve examination revealed lower extremity motor strength was 5/5 and the examination overall was normal. On April 2009 VA examination, the Veteran complained of low back discomfort aggravated by frequent bending, stooping, and lifting heavy weights, with radiation to the right lower extremity. He reported that he was prescribed medication that he took as needed 3 times a week. There was no documentation of total physical incapacitation due to flare-ups during the past 12 months. He denied any associated features, bowel or bladder dysfunction, weight loss, or constitutional symptoms. There was no evidence of adverse impact on activities of daily living, transportation, or occupation. On examination, the Veteran's gait and posture were normal. Range of motion studies revealed flexion to 70 degrees, extension to 15 degrees, bilateral lateral flexion to 20 degrees, and bilateral rotation to 15 degrees. There was no pain during range of motion, loss of motion on repeated maneuvers, localized tenderness, or spasm. Neurologically, there was no motor weakness, atrophy, radicular, neurological, or sensory deficit present. Deep tendon reflexes were equal and there was no bladder or bowel dysfunction. In October 2010, the Veteran testified he had pain back pain that radiated to his right leg. Sitting for long periods of time and prolonged standing also caused discomfort - but he noted that his current job allowed him to move around. No physician ever told him directly that he had to rest in bed. He missed days from work, but not all of these days were documented. He occasionally had muscle spasms that made movement difficult and he also had tingling in his feet and toes on occasion. He denied having bowel and bladder difficulties. On July 2011 VA examination, the Veteran complained of constant lower back pain and pain that radiated to the right leg and toes. Medication provided temporary relief from pain. There was a history of flare-ups approximately every 3 months that lasted for 2 days. There were no precipitating factors for these episodes. There was associated low back stiffness and spasms of the lumbar paravertebral muscles. There was decreased motion but no numbness, paresthesias, or bladder or bowel incontinence. He did not use and assistive device to walk, did not wear a brace, did not have a history of falls or unsteadiness, and could walk 3 blocks. The Veteran was able to perform activities of daily living and drive. On examination, there was no scoliosis or ankylosis. The Veteran's gait was normal but there was tightness of the lumbar paravertebral muscles. Active range of motion was painful with forward flexion from 0 to 70 degrees, extension from 0 to 10 degrees, bilateral lateral flexion from 0 to 20 degrees, and bilateral rotation from 0 to 25 degrees. There was additional functional loss due to pain, weakness, and lack endurance after 3 repetitions of movement with the major impact due to pain. In this regard, there was additional function loss of 5 degrees of all ranges of motion due to pain. The service-connected lumbar disability is rated under Code 5237, lumbosacral strain. Code 5235, Vertebral fracture or dislocation; Code 5236, Sacroiliac injury and weakness; Code 5237, Lumbosacral or cervical strain; Code 5238, Spinal stenosis; Code 5239, Spondylolisthesis or segmental instability; Code 5240, Ankylosing spondylitis; Code 5241, Spinal fusion; and Code 5242, Degenerative arthritis of the spine; are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula): According to the criteria, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, these disabilities are rated as follows: A 20 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine 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 to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (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 cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Codes 5235 to 5242. Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. A 20 percent evaluation is to be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is to be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5293 (2012). For purposes of assigning evaluations under 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. 38 C.F.R. § 4.71a, Code 5243, Note (1) (2012). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the adjudicator is to rate each segment on the basis of incapacitating episodes or under the general rating formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Code 5243, Note (2) (2012). Normal ranges of motion of the thoracolumbar spine include: extension from 0 to 30 degrees; flexion from 0 to 90 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2012). Since the record shows a distinct period in which the service-connected lumbar disability was manifested by more severe symptoms so as to warrant a higher rating, a staged rating will be assigned, which will result in a 20 percent rating from February 5, 2008 to December 18, 2008. Hart, supra. During this period, the Veteran's physical therapy notes showed on several occasions that forward flexion of the lumbar was limited to 60 degrees, which is consistent with a 20 percent rating. A May 2008 treatment record indicates range of motion of the lumbar spine was within normal limits, but since the specific findings were not reported the Board will give the Veteran the benefit of the doubt and make not assumptions that would alter the 20 percent rating. Therefore, the 10 percent rating will not resume until December 18, 2008 when the VA examination finding showed forward flexion was limited to only 80 degrees. Prior to February 5, 2008 and beginning again on December 18, 2008, the low back disability was manifested by forward flexion limited to no worse than 65 degrees with repetition. Thus, even when considering additional factors, such as those outlined in DeLuca, there was no objective findings to warrant a higher rating. While he reported moderate to severe pain at times, without demonstration of additional functional loss beyond that which is reflected in the record, a higher rating may not be assigned. The Veteran reported in June 2006 that he felt his muscle spasms caused him to lean in a forward flexed position, but at no time during these periods was he shown to have an altered gait or abnormal spinal contour due to muscle spasm or guarding. See the May 2008 VA treatment record and VA examination reports in July 2006, December 2008, April 2009, and July 2011. Furthermore, during these periods the combined range of lumbar motion was equal no less than 155 degrees (see the April 2009 VA examination report); at no time was it equal to 120 degrees or less. An increased evaluation under the criteria for Intervertebral Disc Syndrome (IVDS) is not warranted, considering that the Veteran's service-connected low back disability is not characterized by any incapacitating episode, which required physician prescribed bed rest. See Diagnostic Code 5243. VA examiners found no evidence of prescribed bed rest and while the Veteran essentially reported he treated his back symptoms with rest he testified to the effect that it was not ordered by a physician. While the evidence supports the assignment of a higher rating from February 5, 2008 to December 18, 2008, the preponderance of the evidence is against the assignment of a higher rating thereafter as to the orthopedic manifestations of the low back disability. However, the Board will assign a separate compensable rating for right lower extremity radiculopathy. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation requires moderate incomplete paralysis of the sciatic nerve; a 40 percent evaluation requires moderately severe incomplete paralysis; a 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy; an 80 percent evaluation 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. 38 C.F.R. § 4.124a. A July 2008 MRI of the lumbar spine confirmed direct impingement upon the traversing right L5 nerve root and complaints of radiating pain were first reported on December 11, 2007 with a positive straight leg test at 45 degrees on the right. He has since also reported pain radiated to the as low as the right foot and occasional tingling in the toes/foot. He consistently denied bowel or bladder dysfunction. There was no atrophy, and no muscle or motor deficits. Reflexes were symmetrical and usually intact. The 10 percent rating contemplates the Veteran pain and tingling due to the neurological disability. See 38 C.F.R. §§ 4.123, 4.124, and 4.124a, Diagnostic Code 8520. The evidence supports the assignment of a 10 percent rating, but no higher, under Diagnostic Code 8520 for radiculopathy of the right lower extremity. B. LEFT SHOULDER DISORDER Service connection for a left shoulder disability status post rotator cuff repair was established in an October 2003 rating decision and a 10 percent rating was assigned and has been in effect since November 1, 2002. The Veteran now contends the disability has worsened and warrants a higher rating. Because the shoulder disability is shown to have worsened for part, but not for the entire appeal period, a staged rating of 20 percent is assigned, effective the date of the July 2011 VA examination. In February 2006, the Veteran reported worsening pain over the past 6 months and that his shoulder was particularly painful in the morning when he woke and with overhead work. He treated it with ice and medication. He currently had pain at the extremes of motion but he was able to put on his coat and jacket, and reach behind, but abduction of the arm caused the most discomfort. The shoulder also would "click and snap." He did strengthening exercises and performed desk work, so no heavy lifting was involved. On examination, there was no tenderness to palpation or muscle atrophy. He lacked 35 to 40 degrees of full abduction, but he had good internal rotation. Shoulder strength was excellent and his worst motion was with the arm in mid rotated position abducted against resistance. An MRI revealed a degenerative AC joint with impingement and an intact, but thin rotator cuff. X-rays of the left shoulder taken in February 2006 revealed moderately advanced arthritic changes involving glenohumeral and AC joint. Rotator cuff disease was also suspected. On the July 2006 VA examination, the Veteran was reported to have increased limitation of left shoulder motion and worsening pain. He provided a recent MRI report of the left shoulder that revealed some degenerative joint disease in the acromioclavicular or genohumeral joint and findings suggestive of impingement. His current complaints were primarily stiffness, pain, and limitations in range of motion. He had problems with extreme overhead reaching and reported he could not lift more than 20 to 25 pounds, as this aggravated his pain. Flare-ups were not a feature of this condition since it was more daily chronic limitation of motion. It was noted that the Veteran was right-hand dominant. He reported that he retired from the police department in 2004 and currently worked escorting dignitaries in the Washington, DC area and security work, which was a full-time occupation. He had not lost time from work related to shoulder but he had in relation to his back. The nurse practitioner's examination revealed well-healed scars from rotator cuff repair. The left shoulder demonstrated forward flexion to 165 degrees, abduction to 165 degrees due to pain and stiffness, external rotation to 70 degrees, and internal rotation to 65 degrees due to pain and stiffness. There was no pain with palpation but pain was noted on motion. Muscle strength and grip strength were 5/5 in the upper extremities, and light sensation was intact. The examiner commented that fatigability and incoordination were not particular features of the left shoulder disability. Flare-ups did not appear to relate to the left shoulder disability. A February 2007 consultation report show the Veteran reported having extreme pain when his left shoulder was in certain positions. On examination, he had well-healed incision scars. He was tender to palpation over the left biceps tendon, but not over the sternoclavicular joint, clavicle, AC joint, or rotator cuff. He essentially had full range of shoulder motion and good strength with abduction against resistance in external, mid, and internally rotated positions. He also had good strength with external rotation of the arm at the side and internal rotation, as well as in abduction and adduction, although he did have pain with abduction. A February 2007 MRI of the left shoulder revealed postsurgical changes consistent with previous rotator cuff repair and acromioplasty. There was chronic thinning of the rotator cuff, and there was a small full thickness tear of the distal supraspinatus. Degenerative changes were noted, but the articular cartilage of the humeral head and glenoid appeared to be intact. There were minimal atrophic changes of the belly of the supraspinatus with early fatty replacement. In a May 2007 statement the Veteran reported that his left shoulder had pain and discomfort. He exercised his shoulder to regain strength and mobility. His daily activities were severely hindered by discomfort every day. Overhead activity and daily activities were closely regulated to prevent undue pain. On December 2008 VA examination, the Veteran complained of intermittent shoulder pain with activity and that was eased by rest. A physical examination revealed a 3-inch well-healed surgical scar along the lateral aspect of the left shoulder. There was no swelling, fluid, heat, erythema, tenderness, or crepitus. The AC joint appeared intact. The range of left shoulder motion was 170 degrees of flexion and abduction, external rotation of 45 degrees, and internal rotation of 80 degrees. There was no objective evidence of pain on motion. There was no ankylosis, and passive and active motion was identical. The peripheral nerve examination revealed 5/5 upper extremity motor strength and no tremor or atrophy. Finger-to-nose, heel-to-shin, and rapid alternating movements were intact. The examination was normal. In October 2010, the Veteran testified that he could not lift anything heavy laterally; it had to be lifted close to his body, from his chest. He denied having any problems with incoordination, but he had to be careful with how he lifted overhead. Overhead motion was almost nonexistent; he could not hold his arm repeatedly over his head up and down for any period of time. December 2010 private treatment records show on examination, he had a painful arc, and pain with resistance to abduction, but there was no weakness. He was neurologically intact and not particularly tender. Regarding range of left shoulder motion, active flexion and abduction was 145 degrees, external rotation at 90 degrees was 90 degrees, internal rotation was -10 degrees, and external rotation at the side was 30 degrees. He was slightly weak in abduction and external rotation, possibly secondary to pain. In January 2011, prior to his left shoulder surgery. private treatment records indicate the Veteran had a painful arc, and pain with range of motion, and with resisted abduction external rotation. He was slightly weak in external rotation compared to the opposite side, and it was certainly painful. Regarding range of left shoulder motion, active flexion abduction was 160 degrees, external rotation at 90 degrees was 75 degrees with pain, internal rotation was -20 degrees, and external rotation of the side was 30 degrees. On July 2011 VA examination, the Veteran complained of severe shoulder pain, crepitus, stiffness, weakness, and limited range of motion. There were no signs of inflammation, such as heat, redness, or drainage. Medication gave him temporary relief and there was no history of flare-ups. The Veteran was able to perform his usual occupation as program manager as well as engage in activities of daily living. He was also able to drive. Active range of motion was very painful with abduction from 0 to 100 degrees, forward flexion from 0 to 130 degrees, extension from 0 to 40 degrees, internal rotation from 0 to 80 degrees, and external rotation from 0 to 40 degrees. There was no edema or effusion, but there was tenderness over the anterosuperior aspect of the left shoulder. There was no ankylosis of the left shoulder and no signs of inflammatory arthritis. There was additional functional loss due to pain, weakness, and lack of endurance after 3 repetitions with the major impact due to pain. There was additional functional loss of 5 degrees of all ranges of motion with repetition. A September 2011 private treatment record indicates the Veteran reported doing yard work in August that resulted in additional left shoulder pain and that before this he had been doing well following his revision of rotator cuff surgery. On examination, there were no obvious deformities and no atrophy. He had entirely full range of shoulder motion and his strength was intact. An October 2011 private treatment record indicates the Veteran's shoulder pain that was 7/10 in severity. An examination revealed active and passive forward flexion and abduction of 160 to 170 degrees. With the arm abducted at 90 degrees, external rotation was to 60 degrees and internal rotation was to neutral. With the arm at the side, external rotation was to 30 degrees and internal rotation was to 10 degrees. Arm strength was 5/5. An MRI of the left shoulder revealed mild-to-moderate AC joint hypertrophic changes and acromial sloping consistent with impingement, without visible AC separation. There was diffuse rotator cuff thinning with distal full-thickness cuff tear at the infraspinatus, supraspinatus and junction levels with small subdeltoid effusion; atrophic muscle changes were identified. There was also degenerative labral changes of chronic posterior labral tear without avulsion. The left shoulder disability was rated as 10 percent disabling under 38 C.F.R. § 4.71a, Code 5201-5019, limitation of motion of the arm and impairment of bursitis (hyphenated codes). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2012). The record shows the Veteran was identified as right-handed, therefore the rating criteria for the non-dominant arm will be considered. Normal range of motion of the shoulder is forward elevation (flexion) to 180 degrees, abduction to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Under Diagnostic Code 5201, a 20 percent evaluation is assigned where the minor (non-dominant) arm is limited in motion at the shoulder level or when midway between side and shoulder level. A 30 percent evaluation is warranted for the minor arm when there is limitation of motion to 25 degrees from the side. Id. Diagnostic Code 5201 does not provide disability evaluations less than 20 percent or greater than 30 percent for the minor arm. Id. Code 5019, bursitis, is rated along with all codes from 5013 through 5024 based on limitation of motion of the affected parts, as arthritis, degenerative, except gout which will be rated under Diagnostic Code 5002. See 38 C.F.R. § 4.71a, Code 5024. Under Diagnostic Code 5003, if the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, a 10 percent evaluation is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a. There is x-ray evidence that the Veteran has degenerative changes within the acromioclavicular joint. A 20 percent rating is warranted under Diagnostic Code 5003 where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. For the purposes of rating disabilities from arthritis, the following are considered major joints: shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f). During the course of the appeal, the left shoulder disability was manifested by noncompensable limitation of motion. Although some limitation is shown, abduction was primarily limited to no worse than 145 degrees. Only on one occasion, on the July 2011 VA examination, was the left shoulder disability shown to be worse, with abduction limited to 95 degrees on repetitive motion. Since this was an isolated finding with all other reported findings prior to and subsequent to this examination showing much greater range of motion, a distinct period in which the disability was shown to be worse cannot be found. Therefore, at best, the finding represents a temporary exacerbation that may not be considered as the basis for a higher rating. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran's functional loss from his left shoulder disability does not equate or approximate to more than the disability picture contemplated by the 10 percent rating that was assigned. 38 C.F.R. § 4.71a. The Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. Thus, despite the limitations in left shoulder motion, none are show to be so significant as approximate the criteria for a higher rating. The Board must also determine whether a higher rating is warranted under any other potentially applicable Diagnostic Codes pertaining to the shoulder. In this case, Diagnostic Codes 5200 and 5202 involve the shoulder. An evaluation under Diagnostic Code 5200 is not warranted because the Veteran does not have ankylosis of the scapulohumeral articulation; he retains movement in the joint. See Dinsay v. Brown, 9 Vet. App. 79 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Diagnostic Code 5202, other impairment of the humerus, is not for application because the Veteran has not had a recurrent dislocation at the scapulohumeral joint, which is required for a 20 percent evaluation. For the next higher evaluation, 40 percent, there must be fibrous union of the humerus and the Veteran has not been diagnosed with this condition. 38 C.F.R. § 4.71a. Diagnostic Code 5201 is most favorable to the Veteran. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). Extra-schedular At no point since the date of the claim have the disabilities on appeal been shown to be so exceptional or unusual as to warrant the assignment of a rating, higher than those assigned above, on an extra-schedular basis. See 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). There must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. The schedular criteria are adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, such as pain, limitation of motion, stiffness, and flare-ups associated with the low back and left shoulder disabilities. The criteria also provides for ratings higher than those assigned based on more significant functional impairment. The Veteran, his supervisor, and a colleague have stated how the low back disability, in particular, interferes with the Veteran's reliability and ability to perform certain functions of his job, but given the overall disability rating, it is expected that his service-connected disability would adversely impact to a certain degree to include missing a certain amount of work. The amount of work the Veteran reported missing over the course of the appeal is not considered excessive given his disability rating. Thus, the evidence does not show his disabilities are so significant that they are not adequately compensated in the schedular criteria. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER Prior to February 5, 2008 and beginning December 18, 2008, a rating in excess of 10 percent for lumbosacral strain is denied. From February 5, 2008 to December 18, 2008, a 20 percent rating for lumbosacral strain is granted, subject to the regulations controlling disbursement of VA monetary benefits. Beginning December 11, 2007, a separate 10 percent evaluation for right lower extremity radiculopathy associated with a lumbosacral spine disorder is granted, subject to the regulations controlling disbursement of VA monetary benefits. A rating in excess of 10 percent for a left shoulder disability is denied. ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs