Citation Nr: 1318141	
Decision Date: 06/04/13    Archive Date: 06/11/13

DOCKET NO.  99-11 912	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to a rating higher than 20 percent for a low back strain prior to April 7, 2009, and to a rating higher than 40 percent since.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Sean Ravin, Attorney


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from October 1976 to April 1980.

This appeal to the Board of Veterans' Appeals (Board/BVA) originated from a September 1998 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.  During the pendency of this appeal, the case was transferred to the RO in Togus, Maine, then to the RO in Boston, Massachusetts, and eventually back to the Togus RO.

The Board issued a decision in July 2004 denying the Veteran's claim for a higher rating for his low back disability.  He appealed to the United States Court of Appeals for Veterans Claims (Court/CAVC).  Pursuant to a Joint Motion, the Court issued a June 2005 Order vacating the Board's decision and remanding the claim to the Board for compliance with directives specified.  To comply with the Court's Order, the Board in turn remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, in July 2005.

After considering additional evidence obtained on remand, the RO in Togus issued a February 2010 decision increasing the rating for the Veteran's low back strain from 20 to 40 percent as of April 7, 2009.  So the rating increase was not made retroactive to the date of receipt of this claim, only instead back to the date of a VA compensation examination showing the disability met the requirements for this higher percentage rating.  See Harper v. Brown, 10 Vet. App. 125, 126 (1997) (discussing the three possible effective dates that may be assigned depending on the facts of the case:  (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

Thus, the issue once this claim was returned to the Board was whether the Veteran was entitled to a rating higher than 20 percent for this low back (lumbosacral) strain prior to April 7, 2009, and whether he had been entitled to a rating higher than 40 percent since.  The Board remanded this claim again in April 2011 for still further development and consideration.

The issue of entitlement to service connection for additional low back disability, that is, aside from the lumbosacral strain, namely, for mild scoliosis and degenerative disc disease (DDD) of L4-L5 and L5-S1 with facet arthrosis had been raised by the record, but had not been adjudicated by the RO in the first instance as the Agency of Original Jurisdiction (AOJ).  So before deciding whether the ratings for the lumbosacral strain before and since April 7, 2009, were appropriate, and whether the Veteran also was entitled to a TDIU, the Board again remanded these claims in October 2012.  That additional remand, however, was directly to the RO rather than via the AMC since the Veteran had elected to be represented going forward in this appeal by a private attorney.

In an intervening July 2012 motion, the Veteran's attorney had requested a complete copy of all documents added to the Veteran's claims files since the attorney's last request on June 5, 2012, so the prior month.  No documents had been added to the file since then, besides a general letter to the Veteran dated in July 2012 regarding the appeal process in which his attorney already had been sent a copy.  In addition, the Veteran's attorney had requested an extension of 60 days in which to provide additional argument regarding the Veteran's claims.  But in light of the then current notice to the Veteran's attorney that additional documents had not been added to the Veteran's claims files, and the need to remand the Veteran's claims for additional development and consideration, regardless, the attorney would have ample time on remand to provide further argument regarding the claims.  See generally 38 C.F.R. § 20.1100(b) (2011) (A remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of an appeal).


In a November 2012 rating decision since issued, on remand, the RO denied entitlement to service connection for mild scoliosis with DDD of L4-L5 and L5-S1 with facet arthrosis.  The Veteran was notified of that decision denying this claim in a December 2012 letter.  In January 2013, partly in response, the Veteran's attorney submitted a statement indicating the Veteran was "preparing to file a notice of disagreement (NOD) with the RO's decision" denying this claim.  To date, however, no such NOD has been received concerning this claim.  And in the absence of an NOD concerning this claim, the Board in turn does not have to remand this claim for provision of a statement of the case (SOC) and, in response to that, to give the Veteran opportunity to also file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary under 38 C.F.R. § 20.200 to perfect his appeal of this additional claim to the Board.  See Manlincon v. West, 12 Vet. App. 119 (1998).

Also in December 2012, the RO issued an SOC concerning his claimed entitlement to a TDIU and, in response, his attorney filed a substantive appeal (VA Form 9) in January 2013, on his behalf, completing the steps necessary under § 20.200 to perfect his appeal of this derivative TDIU claim to the Board.  Id.

A supplemental SOC (SSOC), which as well was issued in December 2012, continued to deny a rating higher than 20 percent for the low back strain prior to April 7, 2009, and a rating higher than 40 percent since.

Consequently, there was compliance with the Board's remand directives insofar as adjudicating this additional claim for additional low back disability (mild scoliosis with DDD of L4-L5 and L5-S1 with facet arthrosis), determining whether that adjudication had any consequent effect on the claim for higher ratings for the low back strain, and in providing the Veteran an SOC regarding his derivative TDIU claim and giving him opportunity to file a substantive appeal (VA Form 9 or equivalent statement) in response to complete the steps necessary to perfect his appeal of this derivative TDIU claim to the Board.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance).

Regrettably, though, this derivative claim of entitlement to a TDIU requires still further development before being decided on appeal, so the Board is again remanding this claim to the RO.  Whereas the Board, instead, is going ahead and deciding the claim for higher ratings for the low back strain before and since April 7, 2009.

There is just one other preliminary point also worth mentioning.  In February 2013, under the Freedom of Information Act (FOIA), the Veteran's attorney filed another request for copies of additional, i.e., more recent, documents in the claims file, specifying he needed copies of all documents added to the claims file since June 5, 2012, the date of fulfillment of his prior FOIA request.  He also resultantly filed a motion for a 60-day extension allowing him time to review this additional evidence, once received, and submit additional evidence and/or legal argument in response.  The Board sent him a letter in April 2013 and enclosed copies of the additional records in the claims file (physical file and electronic ("Virtual VA") file) that he had requested, consisting of approximately 562 pages of evidence.  But in the 2 months since, he has not submitted any additional evidence and/or legal argument in response, so the Board is proceeding with the adjudication of the appeal.


FINDINGS OF FACT

1.  Prior to April 7, 2009 the Veteran's lumbosacral spine disability was not manifested by moderate limitation of lumbar spine motion, even taking into account his complaints of pain; or by lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritis changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion; and there were no incapacitating episodes having a total duration of at least four weeks in a twelve-month period.

2.  Since April 7, 2009, this lumbosacral spine disability has continued to involve limitation of motion with pain, but still not incapacitating episodes and to an extent having a total duration of at least six weeks in a twelve-month period.

3.  But resolving all reasonable doubt in his favor, his service-connected lumbar spine disability also has caused radiculopathy of his left lower extremity, albeit characterized at most by what amounts to mild incomplete paralysis of the affected nerve, which therefore warrants a separate, additional, rating as an associated objective neurological abnormality.


CONCLUSIONS OF LAW

1.  The criteria are not met for a rating higher than 20 percent for the low back strain prior to April 7, 2009.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, including Diagnostic Codes 5292, 5295 (effective prior to September 26, 2003), Diagnostic Code 5293 (effective on September 23, 2002), and Diagnostic Codes 5237, 5242, 5243 (effective on September 26, 2003), General Rating Formula for Diseases and Injuries of the Spine (2012).

2.  The criteria also are not met for a rating higher than 40 percent for the low back strain since April 7, 2009.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237, General Rating Formula for Diseases and Injuries of the Spine (2012).

3.  But a separate, so additional, 10 percent rating is warranted because the Veteran has associated radiculopathy of his left lower extremity that is as likely as not proximately due to or the result of his service-connected low back strain versus his scoliosis and DDD of L4-L5 and L5-S1 with facet arthrosis.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310, 4.3, 4.124a, Diagnostic Code 8520 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") claims file.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran therefore must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

These notice requirements were met in this case by way of a letter sent to the Veteran in March 2001.  The letter advised him of the information necessary to substantiate his claim and of his and VA's respective obligations in obtaining specified types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).

He was also later advised of how a "downstream" disability rating and effective date are determined after the granting of service connection for a claimed disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Ideally, VCAA notice should be provided before initially adjudicating a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  Here, although the Veteran was not provided 38 U.S.C.A. § 5103(a) notice prior to initially adjudicating his claim in the September 1998 rating decision from which this appeal ensued, that was because the VCAA did not even exist at the time of that initial adjudication.  Rather, the VCAA was not enacted until a little more than two years later, in November 2000.  Moreover, this is not prejudicial error because the claim since has been readjudicated, including in an SOC and SSOCs, since providing all required notice, so the timing defect in the provision of the notice has been rectified ("cured") since the intended purpose of the notice has been served and him given ample opportunity to participate effectively in the adjudicaction of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that an SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC).  As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

During the pendency of this appeal, the Court issued a decision in 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), holding that VA needed to provide a greater degree of specificity with respect to notice of the criteria necessary for an increased rating.  However, this decision later was vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), indicating VA need only provide generic notice and need not apprise the Veteran of alternative diagnostic codes or to present evidence as to how his disability affects his daily-life experiences.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).  


Moreover, he has not alleged any undue prejudice in the notice provided, either in terms of the timing or content of it.  And as the pleading party attacking the agency's decision, he has this burden of proof of not only establishing the occurrence of such error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim.  He has not made any such pleading or allegation.  See Shinseki v. Sanders, 129, S. Ct. 1696 (2009).

To the contrary, he has received all essential notice, has had a meaningful opportunity to participate effectively in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

VA also has a duty to assist him in obtaining evidence necessary to substantiate this claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting him in obtaining records and providing medical examinations or obtaining medical opinions when necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to the claimant).

To this end, his service treatment records (STRs) and post-service VA treatment records were obtained.  He has not indicated there are any additional records needing to be obtained, including of evaluation or treatment from private doctors or from other Federal agencies like the Social Security Administration (SSA).  The duty to assist with obtaining relevant medical records has been satisfied.

This duty to assist as mentioned also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of his disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a).

He was afforded multiple VA examinations, most recently in April 2009, to determine the severity of his lumbar spine disability.  These opinions were rendered by healthcare providers following a thorough examination and interview of him and review of his claims file.  The examiners obtained an accurate history.  They also provided a detailed explanation of their findings and opinions.

There is no suggestion there has been a material change in the severity of the Veteran's service-connected low back disability since he was last examined for compensation purposes.  38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded, especially yet again, solely because of the mere passage of time since an otherwise adequate VA examination was performed.  VAOPGCPREC 11-95.  See also Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  This is especially true when there also is other evidence in the file, such as, like here, in the way of VA outpatient treatment records providing the information needed to rate the disability and assess its severity even more recently in accordance with the applicable rating criteria.  Therefore, the Board finds that the examinations and these evaluation and treatment records are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (requiring that VA adjudicators ensure this adequacy).

In light of the notice and assistance that has been provided concerning this claim, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to this claim is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  His entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where, as in the present case, entitlement to compensation already has been established and increase in disability rating is at issue, the present level of disability is the primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period, meaning the temporal focus is on the state of the disability since the year immediately preceding the filing of this increased-rating claim until the point that the Board decides the claim.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  See, too, Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a 
one-year grace period for filing a claim following an increase in the severity of a service-connected disability).  If there have been occasions since when the disability has been more severe than at others, then the Board must assign different ratings to compensate the Veteran for this variance, in other words, the rating must be "staged."  See also Fenderson v. West, 12 Vet. App. 119 (1999) (first applying this concept in response to disagreement with initial ratings).

The Veteran already has what amounts to a "staged" rating since his low back strain was rated as 20-percent disabling prior to April 7, 2009, and has been rated as 
40-percent disabling since.  The Board therefore need only determine whether that was an appropriate staging.


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, 4.45; 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.  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.  38 C.F.R. § 4.45.  The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 direct VA to assign the minimum compensable rating for a joint where the joint is actually painful, unstable, or misaligned.  This directive to assign a minimally compensable rating in the presence of pain applies to joint pain generally and is not limited to pain only associated with arthritis.  See Burton v. Shinseki, 25 Vet. App. 1, 1-2 (2011).

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).


When evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011).  Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance.  Id., at 37.  In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss.  Id., at 36.  Where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not apply.  Johnson v. Brown, 9 Vet. App. 7, 11 (1996).  So a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).

Turning now to the facts, circumstances and procedural history of this particular case at hand, a September 1981 rating decision granted service connection for low back pain with nerve root irritation and weakness, and S-1 distribution, and assigned an initial 20 percent evaluation retroactively effective from April 1, 1981, under the former 38 C.F.R. § 4.71a, Diagnostic Code 5295 (lumbosacral strain).

In a February 2010 rating decision since issued, the RO recharacterized the Veteran's lumbar spine disability as low back strain under the revised 38 C.F.R. § 4.71a, Diagnostic Code 5237 (lumbosacral strain).

Since the Veteran filed his claim for an increased rating in December 1997, there have been a number of changes in the criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a.  The new criteria for rating intervertebral disc syndrome became effective September 23, 2002.  See 67 Fed. Reg. 54345 (Aug, 22, 2002).  Further, additional regulatory changes for rating all other back disorders became effective September 26, 2003, but these did not change the way intervertebral disc syndrome was rated, except for renumbering Diagnostic Code 5293 as Diagnostic Code 5243.  See 68 Fed. Reg. 51454-56 (Aug. 27, 2003).  In addition, 69 Fed. Reg. 32449 (June 10, 2004) corrected a clerical error in the Federal Register publication of August 27, 2003.

However, given the change in law, while VA may consider the old criteria for rating an intervertebral disc syndrome and all other back disorders for the entire period during which the appeal has been pending, it may only consider the new criteria for rating an intervertebral disc syndrome prospectively from September 23, 2002, and the new criteria for rating all other back disorders from September 26, 2003.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The Veteran as mentioned had a 20 percent evaluation for his lumbar spine disability prior to April 7, 2009, and has had a 40 percent evaluation since.  Having considered the evidence of record, the Board finds that he is not entitled to higher ratings for either of these period at issue, that is, either before or since April 7, 2009, so his appeal must be denied.

Rating Criteria Effective prior to September 23, 2002

Under the 'old' rating criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5295, lumbosacral strain was assigned a 20 percent evaluation where there was muscle spasm on extreme forward bending, with loss of lateral spine motion.  A 40 percent evaluation was warranted for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritis changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.

Other applicable rating criteria effective prior to September 2002 consist of 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002), for evaluating lumbosacral strain based on limitation of motion.  A 20 percent rating is awarded where there is moderate limitation of motion.  The criteria for the next higher rating, 40 percent, which is the maximum allowable under the code, requires severe limitation of motion.


As to limitation of motion under old Diagnostic Code 5292 and lumbosacral strain under old Diagnostic Code 5295, on range-of-motion testing in May 1998 the Veteran had flexion to 75 degrees, extension to 22 degrees, and bilateral lateral flexion to 25 degrees.  He reported lower back pain radiating into his left leg.  His pain was worsened with pushing, pulling, carrying weight, and bending forward.  He also reported back pain on sitting or standing for long periods of time.

On range-of-motion testing during his July 2003 VA examination he reported spasms in his lower back.  He had flexion to 30 degrees with extension to 3 degrees, with pain.  He had lateral bending bilaterally to 20 degrees and rotation bilaterally to 15 degrees with pain.  However, he could sit with his legs parallel to the floor, without discomfort, showing flexion to at least 70 degrees.  See February 2004 addendum opinion.  In a January 2004 addendum opinion the examiner also stated the Veteran's range-of-motion findings depended on the cooperation of the patient and that he would not put much stock in the finding that flexion was reduced to 30 degrees.

On range-of-motion testing during his April 2009 VA examination the Veteran had flexion to 30 degrees, extension to 5 degrees, lateral bending to 5 degrees, and lateral rotation to 5 degrees.  On repetitive testing his pain increased and his flexion decreased slightly to 20 degrees.  There was no ankylosis present.  The VA examiners did not characterize the findings of range of motion as severe, or even moderate, and there is no other evidence suggesting that the range of motion of the lumbar spine was at least moderate throughout the appeal period.  There is also no evidence showing the Veteran's lumbar spine disability caused marked limitation of forward bending in standing position, or the other criteria needed for a 40 percent evaluation prior to April 7, 2009.

Based on the foregoing, there is objective evidence showing the Veteran's lumbar spine was appropriately characterized as having lumbar strain with some limitation of motion throughout the appeal period.  Accordingly, under Diagnostic Code 5295, the criteria for a rating higher than 20 percent are not met prior to April 7, 2009.  40 percent is the highest rating available under the former Diagnostic Codes 5292 and 5295.

As already alluded to, in considering range of motion, painful motion is a factor.  As noted, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca, supra.  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  During the Veteran's May 1998 VA examination there was no weakness observed or otherwise noted.  During his April 2009 VA examination there was no evidence of incoordination or weakness, although he claimed fatigability and diminished endurance.  There is no evidence that there is additional functional loss beyond what is reflected in the range-of-motion measurements.  In reviewing the record, the Board finds that the evidence does not demonstrate that pain on use or during flare-ups results in additional functional limitation to the extent that the lumbar spine is severely limited in motion under the former Diagnostic Code 5292.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.

Under the 'old' rating criteria for rating intervertebral disc syndrome (IVDS), the criteria for 20 percent is evidence of moderate recurring attacks.  A 40 percent rating is warranted where there is evidence of severe recurring attacks with intermittent relief.  The criteria for a 60 percent rating requires evidence of pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disability, and little intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293.

The objective evidence does not show the Veteran meets the criteria for a higher rating at any point during the appeal period.

During his May 1998 VA examination he reported lower back pain radiating into his left leg.  His pain was worsened by pushing, pulling, carrying weight, and bending forward.  He also reported back pain on sitting or standing for long periods of time.

In January 1999 he reported L4-L5 tenderness.  In June 1999 he reported numbness in his left lower extremity.  In March 2001 he again reported lower back pain radiating into his left leg.  See also May 2003 VA treatment record.  
During his July 2003 VA examination he reported a worsening of his lower back pain over the previous 2 years, meaning since 2001 or thereabouts.  He reported his pain as a 7/10 in severity, but noted that it would increase to 9/10 in severity at times.  He also reiterated that pain radiated into his left knee and left foot.  He claimed to have spasms in his back and weakness, as well.

During his April 2009 VA examination he reported that his back pain was a 4/10 in severity, but could rise to a 10/10 in severity.  He again reported pain radiating into his left leg.  He denied any bladder or bowel control problems.  There was evidence of decreased sensation in his left posterior thigh.  There was no suggestion of IVDS, however.

These findings, particularly in the absence of severe recurring attacks, do not show that his lumbar spine disability more nearly approximates or equates to severe IVDS to warrant a rating higher than 20 percent rating under the former Diagnostic Code 5293 prior to April 7, 2009, even considering pain on movement, pain on use, or pain during flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra.  There is also no evidence a rating higher than 40 percent is warranted since April 7, 2009.  To the contrary, the April 2009 VA examiner specifically found no evidence of IVDS.

Consequently, the Board finds that the Veteran is not entitled to an evaluation higher than 20 percent at any point prior to April 7, 2009, even considering pain on movement, pain on use, or pain during flare-ups.  There also is no evidence to warrant an evaluation higher than 40 percent since April 7, 2009.


Rating Criteria effective on September 23, 2002

The criteria for evaluating limitation of motion of the lumbar spine and lumbosacral strain, as in effect prior to September 23, 2002, remained the same, despite other revisions to spine evaluation criteria that were made effective on September 23, 2002.

Effective September 23, 2002, the criteria for evaluating IVDS were revised.  Under the revised criteria, IVDS (preoperatively or postoperatively) is evaluated 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 evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5293.

IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating.  IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating.  IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002).

The accompanying notes to Diagnostic Code 5293 provide that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  'Chronic orthopedic and neurologic manifestations' means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so.

Note (2):  When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnosis code or codes.

In regard to peripheral nerve (sciatic nerve) injuries, a 10 percent rating requires mild incomplete paralysis.  A 20 percent rating requires moderate incomplete paralysis.  38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8620, 8720.

For such other nerves as the external popliteal nerve (common peroneal), internal popliteal nerve (tibial), and anterior crural nerve (femoral), incomplete paralysis warrants a 10 percent rating when mild, 20 percent rating when moderate, and 30 percent rating when severe.  38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8524, 8526.  The posterior tibial nerve is evaluated as 10 percent disabling for either mild or moderate incomplete paralysis, and as 20 percent disabling for severe incomplete paralysis.  38 C.F.R. § 4.124a, Diagnostic Code 8525.

Moderate incomplete paralysis is required for a compensable (10 percent) rating for the musculocutaneous nerve (superficial peroneal) and anterior tibial nerve (deep peroneal).  38 C.F.R. § 4.124a, Diagnostic Codes 8522, 8523.  Severe to complete paralysis is required for a compensable (10 percent) rating for the internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve.  38 C.F.R. § 4.124a, Diagnostic Codes 8527, 8528, 8529, 8530.

The term 'incomplete paralysis' indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

With respect to the rating criteria based on incapacitating episodes, there is no competent and credible evidence in the record that the Veteran's lumbar spine disability has required physician-prescribed bed rest for at least two weeks at any point during the appeal period.  So this is true for all times under consideration and, therefore, he by definition has not experienced an incapacitating episode of the type specifically contemplated by this VA regulation.

The Board next addresses whether a higher rating under Diagnostic Code 5293 would result if chronic orthopedic and neurologic manifestations were separately evaluated.  As shown on VA examination and VA medical records, as described above, the orthopedic manifestations of the Veteran's lumbar spine disability consist of pain and some associated or consequent limitation of motion.

Any pain localized to the lumbar spine already has been evaluated under chronic orthopedic manifestations, and to separately rate low back pain additionally as a neurologic manifestation would violate the rule against pyramiding.  38 C.F.R. § 4.14.

As for neurological manifestations, during his May 1998 VA examination the Veteran reported pain radiating into his left leg.  No diagnosis was given and the examiner found no neurological deficits on examination.  In June 1999 the Veteran reported numbness in his lower left extremity.  In March 2001 he again reported lower back pain radiating into his left leg.  See also May 2003 VA treatment record.  The July 2003 VA examiner stated the Veteran's complaints of loss of sensation in his left leg did not conform to the known distribution of nerves.  So this tends to refute the notion that the lower extremity pain and numbness was referable to the service-connected low back strain, but there nonetheless remains this possibility.

In addition to a spinal examination, the Veteran was also afforded a VA examination for a neurological condition in April 2009.  Again he reported lower back pain radiating into his left leg.  The examiner stated that radiculopathy could not be determined by MRI, as it was a symptom.  The spine examiner noted the Veteran's complaints were consistent with peripheral neuropathy that would cause radiculopathy.  The nerve examiner also diagnosed radiculopathy of the left lower extremity and, as importantly, associated it with the Veteran's lumbar spine condition.  This reference may have been to the service-connected low back strain entirely or may also have been referring to the additional low back disability the Veteran also has on account of his scoliosis and DDD of L4-L5 and L5-S1 with facet arthrosis that has not been determined to be service connected, including secondary to (meaning caused or aggravated by) the low back strain or otherwise part and parcel of it.  38 C.F.R. § 3.310(a) and (b).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  But, at the very least, when VA adjudicators are unable to determine what measure or extent of symptoms is due to service-connected disability from other causes, the provisions of 38 C.F.R. § 3.102 and 4.3 require that VA resolve this reasonable doubt in the Veteran's favor and, for all intents and purposes, presume the symptoms in question are attributable to service-connected disability.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Accordingly, a separate evaluation for the lower left extremity radiculopathy is warranted.

The Veteran has consistently reported numbness in his left lower extremity, and the April 2009 VA examiner as likely as not attributed this to the Veteran's service-connected low back disability.  This in turn provides evidence suggestive of "mild" incomplete paralysis of the sciatic nerve as a result or consequence of the low back disability warranting an additional 10 percent rating for the left lower extremity.  But absent evidence of moderate, or worse, incomplete paralysis, or complete paralysis of the sciatic nerve, a higher rating for this radiculopathy is not in order.  See 38 C.F.R. § 4.124, Diagnostic Code 8520.

The assignment of a separate rating for neurologic manifestations resulting from the lumbar spine disability requires that the neurological signs and symptoms be present constantly, or nearly so.  As discussed above, the April 2009 VA examiner found the Veteran's radiculopathy of the left lower extremity as likely as not caused by his service-connected lumbar spine disability.  In light of this, the Board finds that a separate rating for this neurologic manifestation is warranted.

Under the orthopedic evaluation criteria in effect prior to September 26, 2003, the Veteran does not meet the criteria for a rating higher than 20 percent for his lumbar spine disability prior to April 7, 2009, or in excess of 40 percent since April 7, 2009.  However, a separate, so additional, 10 percent rating is warranted for the associated radiculopathy affecting his left lower extremity.


Rating Criteria effective on September 26, 2003

The revised criteria effective on September 26, 2003, are for application 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.  38 C.F.R. § 4.71a, the General Rating Formula for Diseases and Injuries of the Spine.

Under the new General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.

Note (1):  Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2):  (See also Plate V.)  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 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 (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4):  Round each range of motion measurement to the nearest five degrees.

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire 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.

Additionally, under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code.  The criteria for rating peripheral nerve injuries have been provided in the section above.

The Board will consider whether the new rating criteria warrant a higher evaluation for the Veteran's lumbar spine disability.  


With regards to the Veteran's range-of -motion testing, as has been noted, prior to April 7, 2009 he did not have ankylosis of his lumbar spine.  Aside from the VA regulatory definition already provided in Note (5) to DCs 5235-5242, consider also that ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure"); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  Because he has retained some quantifiable measure of range of motion, even if not normal range of motion, so involving some restriction, he by definition does not have ankylosis, either favorable or unfavorable, since that is tantamount to absolutely no range of motion at all.

The evidence also does not indicate that he had flexion limited to 30 degrees or less.  Although during the July 2003 VA examination the examiner reported flexion to 30 degrees, he later clarified that the Veteran was able to sit with his legs parallel to the floor, without discomfort, indicating flexion to at least 70 degrees.  See February 2004 addendum.  He also noted the Veteran did not cooperate with the range-of-motion testing and, thus, concluded he would not put much stock into the finding of limitation of flexion to just 30 degrees.  That examiner therefore did not believe the Veteran's forward flexion, in actuality, was limited to that extreme amount, and the examiner cited his observation of much greater range of motion, unbeknownst to the Veteran, when not being specifically tested for this.  This, then, is reason for the Board to equally conclude the Veteran had much greater range of motion.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence).  This includes, in this instance, the perceived effort (or lack thereof) the Veteran gave during that VA examination.


As of April 7, 2009, there is no suggestion of ankylosis of the lumbar spine that could warrant a higher rating.  Accordingly, there is no evidence a higher rating is warranted for limitation of range of motion.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

As noted, the revised or current Diagnostic Codes 5237 and 5242 are for application 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.  This implies that the factors for consideration under the holding in DeLuca are now contemplated in the rating assigned under the General Rating Formula.  The Board took into account the DeLuca factors to determine if a higher rating was warranted.

Further, the Board has determined the Veteran is entitled to a separate 10 percent rating for associated radiculopathy of his left lower extremity.  There is no evidence that any additional, and separate, neurological rating is warranted aside from this.  Indeed, the Veteran himself has denied experiencing any associated bowel or bladder dysfunction.

The application of the revised criteria of the General Rating Formula for Diseases and Injuries of the Spine would not result in a rating higher at any point during the appeal period for the Veteran's lumbar spine disability.

Effective September 26, 2003, IVDS is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  The former rating formula has been discussed in the preceding paragraphs.  The latter formula involves evaluating IVDS based on the total duration of incapacitating episodes over the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.


As previously discussed and considered in relation to the old rating criteria, which are essentially the same as the current criteria, the medical evidence does not demonstrate the Veteran has incapacitating episodes having a total duration of at least two weeks during a period of 12 months.  Therefore, a higher rating is not warranted under the revised or current Diagnostic Code 5243, as it pertains to evaluation according to incapacitating episodes.

He has complained of lumbar spine disability, but there is no indication he should be awarded an evaluation higher than 20 percent prior to April 7, 2009 or higher than 40 percent since.

The Board acknowledges his lay statements that his lumbar spine disability has worsened even beyond the 40-percent level and that an even higher rating resultantly is warranted.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication to the contrary).  He is competent to report matters of which he has personal or firsthand knowledge, such as pain and consequent limitation of motion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2).  Since the allegations of these particular symptoms appear to be uncontradicted, even by medical findings of record, the Board also finds them to be credible and, thus, probative - except for the instance when the VA examiner did not believe the Veteran was giving full effort in his range-of-motion testing.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Rucker v. Brown, 10 Vet. App. 67 (1997) (indicating his competency to make these proclamations must be distinguished from the weight and credibility of his lay testimony, which are factual determinations going to the ultimate probative value of this evidence).


As a layman, however, he is not further competent to provide a probative opinion on a medical matter, especially the severity of his lumbar spine disability in relation to the applicable rating criteria.  The VA compensation examiner conducted objective range of motion testing and reported the Veteran's subjective complaints.  The rating criteria determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence.  The Federal Circuit Court has recognized the Board's 'authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence.'  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible", or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must additionally determine whether such evidence is also credible).  Only if the evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).  So in this final step the Board also must consider the other relevant evidence in the file, hence, go beyond just the Veteran's lay statements.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).


For these reasons and bases, the Board finds that the Veteran is not entitled to higher ratings for his low back strain, either before or since April 7, 2009, and irrespective of whether considering the former or revised rating criteria.  He is, however, entitled to a separate 10 percent rating for the associated radiculopathy affecting is left lower extremity and, indeed, the benefit of the doubt doctrine was used to grant this additional compensation.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Otherwise, though, the preponderance of the evidence is against his claim.

Extra-Schedular Consideration

In considering this claim for higher ratings for the service-connected low back strain, including the additional compensation mentioned for the associated radiculopathy affecting the left lower extremity, the Board also has considered whether the Veteran is entitled to an even greater level of compensation on an 
extra-schedular basis.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  See Barringer v. Peake, 22 Vet. App. 242 (2008).

There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration, however.  38 C.F.R. § 3.321(b)(1).  The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms".  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1).

The Board finds no such evidence in this particular instance.  The Veteran's complaints related to his lumbar spine are considered under the appropriate diagnostic code.  His primary symptoms are pain and consequent limitation of motion.  But all of his symptoms are accounted for in the regular schedular rating criteria.  Furthermore, the Director of Compensation and Pension Service determined that an extra-schedular rating was not warranted for the Veteran's lumbar spine disability.  See January 2012 opinion.  According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired.

As the assigned schedular evaluation for the service-connected disability is adequate, referral for an extra-schedular rating is unnecessary.  Thun, supra.  Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting the Veteran is not adequately compensated for this disability by the regular Rating Schedule.  His evaluation and treatment for this disability has been primarily, if not exclusively, on an outpatient basis, not as an inpatient, certainly not frequent inpatient.  Extra-schedular referral is not warranted under these circumstances presented.  See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

The claim for a rating higher than 20 percent for the low back strain prior to April 7, 2009, and for a rating higher than 40 percent since, is denied.

But a separate and additional 10 percent rating is granted for the associated radiculopathy affecting the left lower extremity, subject to the statutes and regulations governing the payment of VA compensation.


REMAND

There is evidence in the file indicating the Veteran has difficulty maintaining employment because of his lumbar spine disability.  In March 1999 a VA physician assistant submitted a supporting statement affirming the Veteran had chronic back pain and was unable to work at that time.  See also December 1998 VA treatment record noting work limitations.  During the July 2003 VA compensation examination, however, the examiner concluded the Veteran was employable and could continue his work handling recyclables, even with the diagnosis of chronic recurrent lumbar spine strain.

During the subsequent April 2009 VA compensation examination the examiner determined it was at least as likely as not the Veteran's DDD, lumbar facet arthrosis, and recurrent lumbar strain resulted in marked interference with his employment.  The Veteran reported having to quit his previous job because of severe ongoing back pain.  In a December 2009 private treatment record he was cleared to return to work as a farm hand - albeit performing just light work.  In a May 2010 VA treatment record the Veteran's social worker stated that the Veteran's ability to work was severely compromised due to his back injury.


A TDIU may be assigned where the schedular rating is less than total, meaning less than 100 percent, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation - provided that, if there is only one service-connected disability, it is rated as at least 60-percent disabling, and if there are two or more disabilities, at least one is rated as at least 40-percent disabling and there is sufficient additional service-connected disability to bring the combined rating to at least 70 percent.  38 C.F.R. § 4.16(a).  Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).

At present, the Veteran does not meet the criteria for TDIU on a schedular basis under 38 C.F.R. § 4.16(a) because he has just one service-connected disability, the low back strain, and it has been rated as just 40-percent disabling effectively since April 7, 2009, so short of the required minimum 60 percent rating in this circumstance.  However, a TDIU also may be granted on an extra-schedular basis under § 4.16(b) even though he fails to meet these percentage requirements, if it is established he is unemployable on account of his service-connected disability.

Some of the evidence cited indicates the Veteran's employability is hampered or even precluded altogether, but some of this evidence refers only to his service-connected low back strain whereas others of it refers also to his additional low back disability that has not been determined to be service connected, namely, his DDD and lumbar facet arthrosis.

As such, the claim should be referred to the Director of the Compensation and Pension Service for a determination as to whether the Veteran is unable to obtain or maintain substantially gainful employment, versus just marginal employment in comparison, if only considering his service-connected low back strain and not also the DDD and lumbar facet arthrosis or for that matter his advancing age.


Accordingly, this derivative TDIU claim is REMANDED for the following additional consideration:

1.  Refer this derivative claim of entitlement to a TDIU on an extra-schedular basis to the Director of the Compensation and Pension Service for special consideration under 38 C.F.R. § 4.16(b).  

2.  After completing the above, and any other development deemed necessary, if this claim continues to be denied, send the Veteran and his attorney another SSOC and give them time to submit additional evidence and/or argument in response to it before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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).



____________________________________________
KEITH W. ALLEN 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs