Citation Nr: 1318151 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 07-03 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Entitlement to a higher evaluation for service-connected lumbar strain, rated as noncompensably disabling from November 1, 2006, as 20 percent disabling from November 10, 2010, and as 40 percent disabling from December 5, 2012. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy. 3. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from May 1994 to May 2004. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from January 2006 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. By way of history, the instant matters were previously before the Board in March 2009 and September 2011. In its March 2009 decision, the Board determined that the reduction of a 10 percent rating to a noncompensable rating for lumbar strain was proper and remanded the issue of entitlement to a compensable rating for service-connected lumbar strain since November 1, 2006, for the Veteran to be scheduled for a VA examination. The Board notes that in a May 2011 decision, the agency of original jurisdiction (AOJ) increased the Veteran's service-connected lumbar strain evaluation to 20 percent, effective from November 10, 2010. The Board again remanded the case in October 2012 for further evidentiary development and adjudication. In particular, the Board instructed the AOJ to obtain records of the Veteran's ongoing VA treatment and records from her application for benefits from the Social Security Administration and to provide her with VA examination. The AOJ obtained the identified records, which were associated with the claims file in November 2012, and scheduled the Veteran for a VA examination, which was conducted in December 2012. The Veteran was then provided a supplemental statement of the case in February 2013, by which the AOJ awarded the Veteran an increased rating, to 40 percent, for her service-connected lumbar strain, effective from December 5, 2012. The AOJ also awarded the Veteran a total disability rating based on individual unemployability due to service-connected disability (TDIU) in a March 2013 rating decision. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Board further notes that in the March 2013 rating decision, the AOJ awarded separate 10 percent disability ratings for radiculopathy of the right and left lower extremities as part of consideration of the proper rating for service-connected lumbar strain. When rating a spinal disability under 38 C.F.R. § 4.71a, resulting compensably disabling neurologic impairments must also be addressed as part of the same claim for a higher rating. Nevertheless, the radiculopathy issue has not been addressed in any supplemental statement of the case following the March 2013 rating decision. Because the claims that were originally appealed to the Board included an increased disability rating for lumbar strain, and because the AOJ awarded separate disability ratings for right and left lower extremity radiculopathy pursuant to that claim, the question of whether higher ratings should now be assigned for right and left lower extremity radiculopathy remains on appeal. Given that these issues have not been addressed by the AOJ in a supplemental statement of the case, a remand is required. (The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in October 2008. A transcript of the hearing has been associated with the Veteran's claims file.) FINDINGS OF FACT 1. For the period from November 1, 2006, to November 10, 2010, the Veteran's lumbar strain was manifested by flexion of the thoracolumbar spine no worse than 45 degrees, even when pain is taken into consideration. 2. For the period from November 10, 2010, to December 5, 2012, the Veteran's lumbar strain was manifested by flexion of the thoracolumbar spine no worse than 50 degrees with pain, and to no worse than 40 degrees without pain. 3. From December 5, 2012, the Veteran's lumbar strain has been manifested by flexion of the thoracolumbar spine no worse than 15 degrees, even when pain is taken into consideration. CONCLUSIONS OF LAW 1. For the period from November 1, 2006, to November 10, 2010, the criteria for a disability rating of 20 percent, but no higher, for lumbar strain were met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). 2. For the period from November 10, 2010, to December 5, 2012, the criteria for a rating higher than 20 percent for lumbar strain were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). 3. For the period from December 5, 2012, the criteria for a rating higher than 40 percent for lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to arrive at a decision on the claim decided herein has been accomplished. In this respect, through an April 2009 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate her claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the April 2009 notice letter. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate her claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the April 2009 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom she wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in her possession). These requirements were met by the aforementioned April 2009 notice letter. The Board thus finds that "the appellant [was] provided the content-complying notice to which [s]he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the April 2009 notice letter. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. Records from the Veteran's treatment from both private and VA treatment providers have been associated with the claims file. Records of the Veteran's application for benefits from the Social Security Administration (SSA) have also been obtained and associated with the claims file. In addition, the Veteran was provided VA examinations in July 2007, September 2010, April 2011, December 2011, and December 2012; reports of those examinations have been associated with the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are collectively adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and reflect that the examiners conducted full examination of the Veteran, including information necessary to apply the pertinent rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the claim decided herein has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence; she has provided written argument in support of her appeal, and she has testified before a Veterans Law Judge. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claim decided herein that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that her service-connected lumbar strain is more disabling than reflected by the noncompensable rating assigned from November 1, 2006, to November 10, 2010; the 20 percent rating assigned from November 10, 2010, to December 5, 2012; and the 40 percent rating assigned thereafter. The Veteran's 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 entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use). See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation and Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. In its rating decisions, the AOJ evaluated the Veteran's lumbar strain in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, 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 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) provides that 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) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that 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) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Relevant medical evidence consists of VA examinations conducted in July 2007, September 2010, April 2011, December 2011, and December 2012, as well as records of treatment the Veteran has received from both private and VA treatment providers. Records from the Veteran's application for SSA benefits are also of record. Report of VA examination conducted in July 2007 reflects that the Veteran reported occasional low back pain that occurred two to three times per week and was worsened with prolonged standing or walking. The examiner found that the Veteran's activities of daily living and occupation were not impaired by her spine problems. Physical examination found normal posture and gait with no spasm or tenderness to palpation and forward flexion of the thoracolumbar spine to 45 degrees with pain at the extreme of motion. No incapacitating episodes or neurological complications were noted, and no additional limitation was found on repetitive motion. At the Veteran's September 2010 VA examination, the Veteran complained of intermittent pain in her lower back that radiated into her legs. She reported that she used a back brace, a TENS unit, and a cane and stated that she could walk up to 300 feet and stand for up to 10 minutes. She complained of bladder incontinence approximately once per week. Physical examination revealed normal strength in the lower extremities bilaterally, as well as normal sensation and deep tendon reflexes. No abnormal posture or curvature was noted, and no guarding, tenderness to palpation, or muscle spasms were noted. Range-of-motion testing showed forward flexion to 50 degrees with pain throughout the range of motion, with no additional limitation on repetition. The examiner diagnosed the Veteran with neural foraminal stenosis of L5-S1 and speculated in a September 2010 addendum opinion that her complaints of bladder incontinence were "assumed" to be related to impairment of the pudendal nerve, which controls contraction of the pelvic floor musculature. In consideration of the findings of the September 2010 VA examiner, the Veteran was given a VA genitourinary examination in April 2011 concerning her complaints of bladder incontinence. At that time, the examiner noted that no findings had been made at the September 2010 VA examination to support the conclusion that the Veteran's pudendal nerve was involved in her reported incontinence. The examiner noted the Veteran's "pretty significant low back pain" and sciatica and her report of urinary frequency both during the day and at night. The Veteran also reported that she had stress urinary incontinence and stated that she had had three vaginal deliveries. The examiner found the Veteran's frequency and nocturia to be related not to any pudendal nerve compromise but instead to overactive bladder and stress incontinence related to her multiple childbirths. Report of VA examination conducted in December 2011 reflects that the Veteran reported ongoing pain in her lumbar spine. She was diagnosed with lumbar strain, which the examiner noted to cause reduced and weakened movement, as well as pain and instability of station. Range-of-motion testing revealed flexion to 60 degrees, with pain beginning at 40 degrees. No additional limitation was noted on repetitive-motion testing, although some tenderness to palpation and muscle spasm resulting in abnormal gait was noted on examination. Muscle strength, deep tendon reflexes, and sensation were all normal. The examiner noted that the Veteran could walk approximately 50 feet, stand for about 15 minutes, and carry about 10 pounds, but that she was limited in her ability to stoop, lift, or climb stairs. She was noted to be limited in her ability to perform physical labor, but sedentary employment was noted to be possible. Report of the December 5, 2012, VA examination reflects the Veteran's complaints of pain in her lower back that radiated into her thighs and that worsened with prolonged standing, sitting, or lifting. Neurological examination was normal, although the examiner noted the Veteran's complaints of moderate intermittent pain in her right lower extremity and mild intermittent pain in her left lower extremity, as well as mild paresthesia and numbness bilaterally. No other signs or symptoms of radiculopathy were noted, and the examiner found the Veteran to have mild radiculopathy affecting the sciatic nerve bilaterally. Range of motion of the lumbar spine was found to be flexion to 30 degrees, with pain beginning at 15 degrees of flexion. The Veteran refused to undertake repetitive motion testing. The examiner noted that the Veteran experienced reduced movement, painful motion, and instability of station, as well as interference with sitting, standing, and weight bearing. However, no ankylosis was found. Tenderness to palpation was found on examination, but no muscle spasm or guarding was noted. The examiner diagnosed the Veteran with lumbar strain with radiculopathy of the right and left lower extremities. However, the examiner specifically found that no other neurological impairment was present, noting the Veteran's denial of any bladder or bowel incontinence. The examiner further noted that the Veteran's back disorder caused difficulty sitting or standing for extended periods and required frequent change of position to keep comfortable while working. In addition, the Veteran has received ongoing treatment for her complaints of pain in her lumbar spine. VA treatment records reflect that the Veteran was seen in November and December 2006 for complaints of back spasms, but no diagnosis was assigned at that time. She was again seen by VA physicians in April 2009, at which time she sought emergency treatment for complaints of back pain. She was noted to have difficulty ambulating at that time and was diagnosed with sciatica on an April 2009 follow-up visit. Some tenderness to palpation was noted at that time. She was again seen in May 2010 for complaints of back spasms and loss of bladder control, which was diagnosed at the time as stress incontinence. However, at a VA visit in October 2011, the Veteran denied urinary frequency. She continued to receive ongoing VA treatment for her back pain. Upon review of the evidence of record, the Board finds that, for the period from November 1, 2006, to November 10, 2010, a disability rating of 20 percent is warranted, but no higher. In that connection, the Board notes that, at the July 2007 VA examination, the Veteran was found to have forward flexion of the thoracolumbar spine to 45 degrees, which warrants a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Similarly, testing at VA examination conducted in September 2010 revealed flexion of 50 degrees with pain on motion. As noted above, in VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability. In this case, the Board has taken into consideration the Veteran's pain on flexion of the lumbar spine at the July 2007 and September 2010 examinations and nevertheless finds that the Veteran's forward flexion of the lumbar spine is functionally limited to, at worst, the 45 degrees recorded by the July 2007 VA examiner. The Board thus concludes that the range of motion and functional loss displayed by the Veteran at her VA examinations, most particularly the examinations conducted in July 2007 and September 2010, warrants a rating of 20 percent for her lumbar spine disability for the period from November 1, 2006, to November 10, 2010. However, as to the Veteran's entitlement to a disability rating higher than 20 percent for her service-connected lumbar strain from November 1, 2006, to December 5, 2012, the Board finds that the disability did not warrant a rating higher than 20 percent. In this case, the Board finds that, for the period from November 1, 2006, to December 5, 2012, the Veteran's flexion of the thoracolumbar spine was no worse than 40 degrees without pain, or 50 degrees with pain on motion, which does not warrant a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. In particular, the Board notes, as discussed above, that at the Veteran's July 2007 VA examination, she was noted to have flexion of the thoracolumbar spine to 45 degrees without pain. Similarly, testing at her September 2010 VA examination revealed flexion to 50 degrees with some pain on motion. Testing at the VA examination conducted in December 2011 similarly revealed flexion of 40 degrees without pain. As noted above, in VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability. In this case, the Board has taken into consideration the Veteran's complaints of pain on flexion of the lumbar spine at her VA examinations, discussed above, and nevertheless finds that the Veteran's forward flexion of the lumbar spine is functionally limited to, at worst, the 40 degrees recorded at the December 2011 VA examination. The Board thus concludes that the range of motion and functional loss displayed by the Veteran does not warrant a higher rating for her lumbar spine disability for the period from November 1, 2006, to December 5, 2012. In that connection, the Board notes that the Veteran did not display flexion of the thoracolumbar spine of 30 degrees or less at any time during the period from November 1, 2006, to December 5, 2012, even when considering pain on motion, to warrant a 40 percent rating. Similarly, the Board also notes that there is no evidence that the Veteran's lumbar strain resulted in disability comparable to ankylosis to warrant a 50 or 100 percent disability rating at any point from November 1, 2006, to December 5, 2012. The Board acknowledges that the Veteran's VA examination has revealed painful motion of the lumbar spine. However, as discussed above, the Board finds that any such pain and its effect on the Veteran's function is contemplated in the 20 percent rating assigned for the period from November 1, 2006, to December 5, 2012. Therefore, the Board does not find that a rating higher than the 20 percent assigned from November 1, 2006, to December 5, 2012, based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59, is warranted under the rating criteria. As for the evaluation of the Veteran's service-connected lumbar strain for the period from December 5, 2012, the Board finds that the disability does not warrant a rating higher than the 40 percent currently assigned. In that connection, the Board notes that a 40 percent rating is the highest available rating under the general rating formula when there remains some effective motion; to warrant a 50 percent rating or above, a diagnosis of ankylosis of the spine is required. As noted above, the Veteran has not been shown at any time to have ankylosis. She is thus not entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine for the period from December 5, 2012. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). In sum, the evidence of record shows that, for the period from November 1, 2006, to November 10, 2010, a disability rating of 20 percent, but no higher, was warranted for the Veteran's service-connected lumbar strain. For the period from November 10, 2010, to December 5, 2012, a rating higher than the 20 percent already assigned for the Veteran's service-connected lumbar strain is not warranted. Finally, for the period from December 5, 2012, a disability rating higher than the 40 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). The Board also finds that there are no other potentially applicable diagnostic codes by which to consider the Veteran's service-connected lumbar strain. In this case, while there is radiological evidence of degenerative changes of the lumbosacral spine, the Veteran is being rated for limitation of motion of the lumbosacral spine which contemplates such changes even though service connection has not been specifically awarded for any disability other than strain. The Board also notes, as discussed above, that there is no evidence that the Veteran's lumbar strain has resulted in disability comparable to ankylosis at any time during the appeal period, rendering higher ratings under the current General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237 (2012), inappropriate. The Board further notes that the Veteran is already in receipt of separate disability ratings for right and left lower extremity radiculopathy, as discussed in the remand below. Further, and despite the speculation of the September 2010 VA examiner as to the involvement of the Veteran's pudendal nerve, the Board notes that the medical evidence of record does not support a finding that the Veteran experiences urinary incontinence related to her service-connected lumbar strain. In that connection, the Board acknowledges, as noted above, that the September 2010 VA examiner "assumed" that the Veteran's complained-of urinary incontinence was related to impairment of the pudendal nerve. However, upon further examination in April 2011, a VA urologist concluded that any urinary incontinence or loss of bladder control that the Veteran experienced was due, not to pudendal nerve involvement, but to an overactive bladder attributable to the Veteran's three vaginal childbirths. Further, the Board points out that the Veteran denied experiencing any urinary frequency at an October 2011 VA treatment visit and denied any urinary or bowel complications at the December 2012 VA examination, at which time the examiner again explicitly found no neurological complications traceable to the Veteran's lumbar strain aside from the previously noted, and already service-connected, radiculopathy of the right and left lower extremities, which is addressed in the remand below. Thus, the Board finds that no other separate rating for neurological disability is warranted. The Board is cognizant, as discussed above, that the Veteran has complained of painful motion of her lumbar spine. As noted above, in VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability. In this case, as discussed in detail above, the Board has taken into consideration the Veteran's complaints of pain but finds, for the reasons enunciated, that higher ratings are not warranted for functional loss due to pain. Therefore, the Board does not find that ratings higher than assigned for the Veteran's lumbar spine disability based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted under the rating criteria. The above determination is based on consideration of the applicable provisions of VA' s rating schedule. The Board finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the referral for consideration of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected lumbar strain has rendered impractical the application of the regular schedular standards. In addition, the Board notes that the Veteran's symptoms are specifically contemplated by the criteria discussed above. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for ratings higher than those assigned herein, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating of 20 percent for lumbar strain for the period from November 1, 2006, to November 10, 2010, is granted, subject to the laws and regulations governing the award of compensation benefits. Entitlement to a rating higher than 20 percent for lumbar strain for the period from November 10, 2010, to December 5, 2012, is denied. Entitlement to a rating higher than 40 percent for lumbar strain from December 5, 2012, is denied. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the propriety of the ratings for radiculopathy of the right and left lower extremities. As noted in the introduction, the AOJ issued a rating decision in March 2013 awarding separate 10 percent disability ratings for right and left lower extremity radiculopathy. The Veteran was also provided a supplemental statement of the case (SSOC) in February 2013, in which the AOJ denied the Veteran's claims for increase for her lumbar spine disability; however, the radiculopathy issues were not addressed. Because the claims that were originally appealed to the Board included an increased disability rating for lumbar strain, and because the AOJ awarded separate disability ratings for right and left lower extremity radiculopathy pursuant to that claim, the question of whether higher ratings should now be assigned for service-connected radiculopathy of the right and left lower extremities remains on appeal. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012) (when rating any spine disability under the general rating formula, the evaluation must take into account any associated objective neurologic abnormalities). When additional evidentiary development is undertaken by the AOJ on an issue on appeal, an SSOC is required. 38 C.F.R. § 19.31 (2012). After awarding the separate ratings in March 2013, the AOJ did not prepare an SSOC, and no withdrawal of the appeal of these rating questions was submitted by the Veteran. Consequently, a remand is required so that an SSOC may be issued. In view of the foregoing, the case is REMANDED for the following action: The AOJ must issue an SSOC that specifically addresses the ratings for right and left lower extremity radiculopathy assigned in the March 2013 rating decision, unless the Veteran is satisfied with the 10 percent ratings assigned. The pertinent rating criteria should be cited and the evidence addressed in the AOJ's analysis. The Veteran should be afforded the appropriate time period for response before the claims file is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs