Citation Nr: 1318630 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-14 204 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas THE ISSUE Entitlement to an increased rating for service-connected lumbosacral strain, rated as 10 percent disabling prior to February 25, 2011, and as 20 percent disabling from that date. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2007 decision by the RO in Wichita, Kansas that granted an increased 10 percent rating for service-connected lumbosacral strain, effective from March 22, 2007, the date of the Veteran's claim for an increased rating. The Veteran appealed for an even higher rating. A personal hearing was held at the RO before a Veterans Law Judge (VLJ) of the Board in June 2009, and a transcript of this hearing is of record. In September 2009, the Board remanded this case to the RO via the Appeals Management Center (AMC) for additional development. The case was subsequently returned to the Board. In an April 2011 rating decision, the AMC granted a higher 20 percent rating for service-connected lumbosacral strain, effective February 25, 2011. Thus, the issue on appeal is characterized as listed on the first page of this decision. Subsequently, the VLJ of the Board who presided over the Veteran's Travel Board hearing retired. In an April 2013 letter, the Board informed the Veteran of this and offered him another hearing before a different VLJ of the Board who would ultimately decide this appeal. See 38 U.S.C.A. § 7107(c); 38 C.F.R. §§ 20.707, 20.717. In this letter, he was advised that if he did not respond within 30 days of this letter, the Board would assume he did not want another hearing. As the Veteran did not respond to this letter, the Board will proceed with adjudication. FINDINGS OF FACT 1. During the period prior to June 29, 2010, the Veteran's low back disability was manifested by low back pain and limitation of motion, with flexion no worse than 65 degrees and his combined range of motion of the thoracolumbar spine was much greater than 120 degrees. There also was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. And he did not have any incapacitating episodes under the governing rating criteria during this period. 2. During the period from June 29, 2010 through February 24, 2011, the Veteran's low back disability was manifested by painful limitation of motion with flexion to 10 degrees, with no ankylosis or incapacitating episodes. 3. During the period from February 25, 2011, the Veteran's low back disability is manifested by degenerative osteoarthritis and disc disease of the lumbar spine, some painful limitation of motion, muscle spasm, tenderness to palpation, and guarding; his remaining functional range of motion is better than 30 degrees of flexion; ankylosis is not shown. 4. Throughout the appeal, the Veteran's service-connected low back disability has been productive of mild neurological manifestations in the right and left lower extremities. CONCLUSIONS OF LAW 1. During the period prior to June 29, 2010, the criteria are not met for an increased rating higher than 10 percent for his service-connected low back disability. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5237, 5242, 5243 (2012). 2. During the period from June 29, 2010 and prior to February 25, 2011, the criteria are met for an increased 40 percent rating for his service-connected low back disability. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (2012). 3. During the period from February 25, 2011, the criteria are not met for an increased rating higher than 20 percent for his service-connected low back disability. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). 4. Throughout the rating period on appeal, the criteria for entitlement to separate evaluations of 10 percent, but no higher, for neurological manifestations of the right and left lower extremities have been met. 38 U.S.C.A. §§ 1155 , 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2007 with respect to the claim for an increased rating for service-connected lumbosacral strain, advising him of the evidence needed to substantiate his claim. This letter also provided information regarding the evidence VA would obtain and of the evidence the Veteran was responsible for providing. In May 2008, the Veteran was provided with information regarding the assignment of disability ratings and specifically set forth applicable rating criteria. The claim was most recently readjudicated in an April 2011 supplemental statement of the case. As the pleading party, the Veteran, not VA, has the evidentiary burden of proof for showing there is a VCAA notice error in timing or content and, moreover, that it is unduly prejudicial, meaning outcome determinative of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also has fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Neither he nor his representative has indicated that any additional records exist that are pertinent to this claim and, therefore, would need to be obtained before deciding this appeal. The claims file contains the Veteran's service treatment records (STRs) and VA medical records, and written arguments and testimony from the Veteran and his representative. He was afforded VA medical examinations in May 2007, June 2010, and February 2011. The last examination was performed by a private fee-basis examiner. At the June 2009 Board hearing, the Veteran's representative contended that the May 2007 VA orthopedic examination was inadequate, essentially asserting that the examination report contained inaccurate findings. The Board subsequently remanded this case in September 2009, primarily for another VA examination of the Veteran's back disability with current findings. VA examinations were conducted in June 2010 and February 2011. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that the subsequent June 2010 and February 2011 examination reports are adequate, as they are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. The examiners specified the ranges of motion in degrees. The examinations were conducted by competent medical professionals. In addition, it is not shown that the examinations were in any way incorrectly conducted or that the examiners failed to address the clinical significance of the Veteran's back symptoms. Further, the VA examination reports addressed the applicable rating criteria. The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide this claim insofar as reassessing the severity of this disability. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The most recent examinations also comply with the Board's September 2009 remand directives in terms of providing the information needed to make this critical determination as to the severity of the disability, such that additional examination and opinion are not needed. 38 C.F.R. §§ 3.327, 4.2. See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when there is "substantial," though "exact," compliance with a remand directive). The mere passage of time since the most recent examinations does not obligate VA to schedule another examination, especially when, as here, there is already sufficient evidence in the file to decide the claim. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. § 3.326; 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). The Board concludes that the appellant was afforded adequate examinations. All relevant facts with respect to the increased rating claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the 2009 Board hearing. II. Analysis The Veteran's service-connected lumbosacral strain has been rated as 10 percent disabling from March 22, 2007, and 20 percent disabling from February 25, 2011, under Diagnostic Code 5237, pertaining to lumbosacral strain. The Veteran contends that his service-connected low back disability is more disabling than currently evaluated. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the appellant's claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The current level of disability, however, is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the current severity of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased-rating claim has been pending. And in those instances, it is necessary to "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Rather, pain may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45 . In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10 , 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is appropriate for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (pertaining to degenerative arthritis of the spine). Note (1) requires consideration also of any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, backward extension from zero to 30 degrees, left and right lateral flexion (side bending) from zero to 30 degrees, and left and right lateral rotation (twisting) from zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, backward extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (2). Note (4) provides that each range of motion measurement is rounded to the nearest five degrees. Under Diagnostic Code 5243 (intervertebral disc syndrome (IVDS)), ratings are based on either the General Rating Formula for Diseases and Injuries of the Spine or on the basis of incapacitating episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The rating criteria for IVDS based on incapacitating episodes provides for a 10 percent rating where the evidence demonstrates incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the last 12 months. A 20 percent rating applies where the evidence demonstrates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the last 12 months. A 40 percent rating applies where the evidence demonstrates incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. Note (1) to Diagnostic Code 5243 defines an "incapacitating episode" as "a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician." At a September 2005 VA compensation and pension spine examination, the Veteran complained of continuous back pain and stiffness since a 1969 back injury. He said his symptoms worsened six or seven years ago when he strained his back while working on a car. The examiner noted that the Veteran had a significant motorcycle crash in 1972 with femur fractures and knee joint injuries resulting in right leg shortening requiring 3/4 inch shoe lifts and a laterally deformed right femur. He also lost sensation to the medial right knee from this injury, which was verified on examination and which the examiner opined was not part of the back condition. On examination, his pelvis was tilted to the right, and no abnormal spinal curvatures were seen. There was mild spasm, guarding, pain on motion, and tenderness of the lumbar sacrospinalis, bilaterally. The spasm, tenderness, or guarding was not severe enough to result in abnormal gait or abnormal spinal contour. Range of motion of the thoracolumbar spine using a goniometer was as follows: flexion to 100 degrees, extension to 30 degrees (with pain from 12 to 15 degrees), left and right lateral flexion to 30 degrees, and left and right lateral rotation to 25 degrees. Right lateral flexion pain began at 30 degrees and ended at 8 degrees. There was no additional limitation of motion on repetitive use of the joints due to pain, fatigue, weakness, or lack of endurance. Strength and muscle tone were normal in both lower extremities. Lower extremity sensation was decreased only to pain, and only on the plantar surfaces of both feet. Knee jerks were absent bilaterally, and ankle jerks were hypoactive. A computed tomography (CT) of the lower extremities showed old healed fractures of both femurs, with lateral bowing at the right femur fracture site. The right femur was shorter. An X-ray study of the lumbar spine showed findings compatible with disk degeneration at L4-5. The examiner diagnosed degeneration of the lumbar spine secondary to aging, tobaccoism and right leg shortening, and lumbosacral strain secondary to right leg shortening. The examiner added that the current lumbosacral strain was secondary to right leg shortening and not secondary to service-connected problem in view of minimal degeneration of the spine without radiculopathy symptoms. Subsequent VA outpatient treatment records reflect treatment for complaints of chronic low back pain. A February 2007 VA outpatient treatment record reflects that the Veteran complained of chronic low back pain with occasional radiation of pain down the foot. He denied lower extremity weakness or loss of sensation, or bowel or bladder problems. On examination, straight leg raising was negative, motor strength was full, and sensation was intact. The diagnostic assessment was chronic low back pain with some element of radiculopathy. An April 2007 CT scan of the lumbar spine showed mild facet hypertrophy at L4-L5 and L5-S1, and was otherwise normal. In March 2007, the Veteran filed the current claim for an increased rating for his lumbosacral and cervical spine disabilities. He said he had extreme pain and could only walk short distances due to these conditions. On VA compensation and pension examination in May 2007, the Veteran reported that he had not worked full time as a mechanic since 2005 or performed any other full time work. He worked part-time as a boat mechanic until 2006, which was light work. He said that he had worsening back pain since his last examination, and pain radiating down both legs. The examiner noted that the Veteran had a leg length discrepancy, with his right leg shorter than his left due to femur fractures. On examination of the thoracic sacrospinalis, there was pain on motion and tenderness, but no muscle spasm, atrophy, guarding, or weakness. This did not cause abnormal gait or abnormal spinal contour. The pelvis was tilted to the right. His gait was antalgic, and the examiner noted that he had not worn his shoe lift today. There were no abnormal spinal curvatures. In the lower extremities, muscle strength was full, muscle tone was normal, and there was no muscle atrophy. Sensation in the lower extremities was normal. Reflexes were absent at the knees (L3-L4), and hypoactive in the ankles (S1). There was no thoracolumbar spine ankylosis. Range of motion of the thoracolumbar spine was as follows: flexion to 65 degrees, with pain beginning and ending at 30 degrees, extension to 10 degrees, with pain beginning and ending at 2 degrees, right lateral flexion to 23 degrees, with pain beginning and ending at 10 degrees, left lateral flexion to 11 degrees, with pain beginning and ending at 6 degrees, left and right lateral rotation to 30 degrees, with no pain on motion. With respect to each motion, the examiner stated that there was no additional limitation of motion on repetitive use of the joint. The examiner noted that the Veteran was not employed and that he reported that he could not work due to back pain and could not stand to be up on his feet. The diagnosis was lumbosacral strain. In a May 2007 statement, the Veteran said he had been on pain medication for 15 years with little or no relief, and could not walk more than 100 feet. VA primary care notes dated in February 2008 reflect that the Veteran requested a note from his doctor to the effect that he was unemployable. His physician indicated that he could not say that the Veteran's back pain made him unable to do any job, and he would be capable of several jobs with chronic pain. A March 2008 VA outpatient treatment record reflects that the Veteran complained of constant low back pain with intermittent radiation. On examination, muscle strength in the lower extremities was full, there was tenderness in the lumbar spine, and there were no abnormalities or spasms palpable. The diagnostic assessment was chronic back pain. In his March 2008 substantive appeal, the Veteran said that he had constant pain at a level of 7 or 8 on a scale of 1 to 10. He said that the VA examiner at his last VA examination did not tell him to stop bending when he felt pain, but instead told him to bend as far as he could. At his June 2009 Board hearing, the Veteran reiterated many of his assertions. He reported continuous back pain. He said he previously worked as a mechanic, then as a boat mechanic, but did not work currently. He said he could not participate in his former leisure activities. He said the only time his back did not hurt was when he was lying down, and that he spent 60 percent of his day lying down. He said the pain radiated down both of his legs but was worse on the left. A July 2009 VA outpatient treatment record reflects that the Veteran reported that his back pain was somewhat uncontrolled but was much better than it used to be. He said the pain was constantly at a level of 5/10, and occasionally dropped to a 3/10. On examination, there were no abnormal spasms of the back. The diagnostic assessment was chronic back pain. In February 2010, the Veteran underwent a right total knee replacement, and in September 2010 he had a left total knee replacement. On VA examination on June 29, 2010, the examiner indicated that the claims file was reviewed, and summarized pertinent medical records. Currently, the Veteran complained of daily recurrent and intermittent back pain, which radiated from the lower back to the posterior thighs, to about the knee level. On occasion, it traveled down to his left calf and medial left foot. He said the current severity was 7 to 8 out of 10 with pain medication. He reported daily ranges from a moderate at 5/10 to very severe at 10/10. He denied having incapacitating episodes of back pain in the past 12 months in which bed rest was prescribed by a medical provider. He said he self-treated his pain, and had to stay in bed two or three times per week. He reported flare-ups three or four times per week. He said he could only walk 50 feet without a cane. On examination, he had a significant amount of pain at rest, and had additional pain on motion and on attempting repetitive use. His spine was straight without any significant scoliosis, his limbs were equal in appearance with no atrophy. His posture was tilted to the right, and his pelvis was lower on the right due to a leg length discrepancy. His gait was a normal tandem gait but antalgic. The position of the head is tilted forward, the thoracic kyphosis was slightly increased, and lumbar lordosis was intact. His back was symmetrical in appearance. Range of motion was as follows: flexion to 10 degrees, extension to 5 degrees, left and right lateral flexion to 10 degrees, left lateral rotation to 5 degrees, and right lateral rotation to 10 degrees. The examiner stated that the Veteran's ranges of motion were reduced and reproducible but were not consistent with known disease. The examiner opined that they should at least be similar to those noted on previous examination in 2007. He stated that the Veteran's ranges of motion were likely reduced due to pain/spasm, guarding, and fear of injury with reduced effort. There was objective evidence of painful motion, and he had pain throughout all motions. There was spasm in the paravertebral musculature, and no specific weakness. There was tenderness over the lower lumbar spinous processes and in musculature. There was guarding present and no atrophy. There was muscle spasm, guarding, and local tenderness with preserved spinal contour, and normal gait. There was muscle spasm and guarding, which was not severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. There was no ankylosis. On neurological examination, a sensory examination was intact, there was no atrophy, and muscle tone and strength were normal. Deep tendon reflexes were absent bilaterally at the patellae, and were hypoactive in the bilateral Achilles. Straight leg raising tests were negative for radicular pain. The examiner indicated that the Veteran was not capable of repetitive range of motion at this time. He could not state if any additional range of motion or function was present without mere speculation. He had significant lack of endurance due to pain. The examiner stated that intervertebral disc syndrome (IVDS) was present, and the nerves affected were the bilateral sciatic. There were no effects on bowel or bladder functioning. The diagnosis was degenerative osteoarthritis and disc disease, lumbar spine. He had bilateral sensory sciatica, right greater than left. The sciatica itself was moderate in severity, and caused moderate functional loss due to pain in the legs with standing and walking, which limited his ability to ambulate any significant distance or work as a mechanic. His functional limitations were primarily due to pain and spasm in his back, also a moderate effect as due to pain in the legs from sciatica. Overall, there was significant effect on function, daily and usual occupational activities. His functional loss was primarily associated with a mechanical condition with pain on movement and muscle spasm. A February 2011 VA outpatient treatment record reflects that the Veteran reported that his back pain was doing much better. He said that overall the biggest complaint he had about his back pain was that it was always there. On examination, he was neurologically intact, with no focal defects. The diagnostic assessment was back pain, stable at this time. He said it was slightly worse only because of the drive to the appointment. A February 2011 VA CT scan of the lumbar spine performed on the same day showed facet hypertrophy and arthropathy at L4-5, with no other lumbar spine abnormality. There were ankylosing changes in the sacroiliac joints, greater on the right. On fee basis examination performed for VA on February 25, 2011, Dr. H. noted that he had reviewed the claims file. He noted that a February 2011 lumbar CT scan showed facet hypertrophy and arthritis at L4-5. There was no foraminal stenosis or canal stenosis or disc herniation. The sacroiliac joints showed some sclerotic change bilaterally. The Veteran complained of low back pain, extending to either side of the low back and down through the sacroiliac and gluteal areas and down into the thighs but not below the knees. Sometimes when he sat in a recliner he had tingling down in the left leg and foot. This subsided if he changed out of that position. He said his back pain never went below a level 5 on a 0-10 scale, and usually was a level 7-8. He sometimes used a TENS unit. He did not use a back support. Bladder and bowel functions were good. His walking distance was quite limited and did increase back pain. The Veteran believed he had lack of endurance and weakness as a result of the chronic low back pain. On examination, the pelvis was not level, and the right leg was 1.5 inches shorter than the left. The examiner stated that therefore he has associated scoliosis. He had complaints of tenderness with palpation of the lumbar midline and both gluteal and sacroiliac areas. Paravertebral muscles in the thoracolumbar areas were not tender. He was able to walk several steps both on heels and toes. The examiner stated that lumbar flexion was limited. He had 50 degrees of lumbar flexion, extension was to 10 degrees, right and left lateral tilts were to 15 degrees, and right and left rotations were to 20 degrees. At the ends of these motions, he complained of tightness and increasing lower back discomfort. The examiner stated that a goniometer was used. Neither knee nor ankle reflex was obtained on either side. He had good strength bilaterally against resistance in the lower extremities. Sensation to pinprick was sharp and within normal limits bilaterally throughout the thighs, legs and feet. In a supine position, straight leg raising was to 75 degrees bilaterally, at which point he had increased complaints of tightness and discomfort in his low back. The examiner indicated that the Veteran did not have physical signs of lower extremity radiculopathy. He did have significant leg length discrepancy which no doubt has some effect on his low back pain symptoms. Range of motion was limited with symptoms, and his activity level was significantly limited due to his lumbar spine problem. A March 2011 VA outpatient treatment record reflects that the Veteran complained of low back pain and hip pain, radiating down the posterior aspect of his legs. He also reported intermittent tingling without numbness. A VA nurse practitioner diagnosed lumbar radiculopathy. In an April 2011 rating decision, the AMC granted a higher 20 percent rating for service-connected lumbosacral strain, effective February 25, 2011, the date of the most recent VA compensation and pension examination. Having carefully considered the Veteran's contentions in light of the evidence of record and applicable law, and for the reasons and bases discussed below, the Board finds that staged ratings are appropriate, and his service-connected low back disability is appropriately evaluated as 10 percent disabling prior to June 29, 2010, 40 percent disabling from June 29, 2010, and 20 percent disabling from February 25, 2011, under Diagnostic Codes 5237, 5242. During the period prior to June 29, 2010, the evidence does not reflect forward flexion of the thoracolumbar spine to 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. To the contrary, his forward flexion on VA examination in May 2007 during this period was to 65 degrees, and his combined range of motion of the thoracolumbar spine was significantly greater than 120 degrees. Moreover, there was no additional limitation of motion on repetitive use of the joint. There was pain on motion and tenderness, but no muscle spasm, atrophy, guarding, or weakness. There was no ankylosis. A neurological examination was essentially normal, as well, with full muscle strength, normal muscle tone, no muscle atrophy, and normal sensation in the lower extremities. Moreover, even considering the Veteran's subjective complaints of pain on motion, the medical evidence of record does not demonstrate pain or additional limitation of motion in response to repetitive motion that would support an increased evaluation during this period. See DeLuca, supra; 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2012). In sum, a rating higher than 10 percent is not warranted during the period prior to June 29, 2010. However, on VA examination on June 29, 2010, forward flexion was to 10 degrees, and the combined range of motion of the thoracolumbar spine was only 50 degrees. The examiner stated that the Veteran's ranges of motion were reduced and reproducible but were not consistent with known disease, and opined that they should at least be similar to those noted on previous examination in 2007. He also opined that the Veteran's ranges of motion were likely reduced due to pain/spasm, guarding, and fear of injury with reduced effort. Although the examiner suggested there might have been a lack of effort during the range of motion testing, he nonetheless stated that pain, spasm, and guarding were all likely causes of the limitation of motion of the thoracolumbar spine. He also indicated that there was significant lack of endurance due to pain, and there was a significant effect on function. Hence, the Board finds that after resolving reasonable doubt in the Veteran's favor, a higher 40 percent rating is warranted from June 29, 2010, as forward flexion of the thoracolumbar spine was to less than 30 degrees, and the limitation of motion was likely caused by pain and/or guarding. See 38 C.F.R. § 4.40; Mitchell, supra. An even higher 50 percent rating is not warranted during this period, as the evidence does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine. During the period from February 25, 2011, the low back disability is appropriately rated as 20 percent disabling. A higher 40 percent rating is not warranted for the service-connected low back disability from this date, as the evidence does not show forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In fact, on VA fee basis examination on February 25, 2011, flexion was performed to 50 degrees, even with consideration of pain, as measured by a goniometer. Ankylosis of the thoracolumbar spine is not shown. The Board has also considered whether an increased rating is warranted via application of Diagnostic Code 5243, concerning intervertebral disc syndrome. The evidence here does not establish incapacitating episodes, as defined by Note 1 to Diagnostic Code 5243. Although the Veteran has reported that he must frequently lie down due to his back pain, the Board finds that throughout the rating period on appeal there is no evidence of a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Moreover, at the June 2010 VA examination, the Veteran denied any incapacitating episodes for the past 12 months. As such, Diagnostic Code 5243 cannot serve as a basis for an increased rating on the basis of incapacitating episodes. There are no other relevant code sections for consideration. While the Veteran has reported subjective complaints including pain, and has contended that an even higher rating is warranted, the objective medical findings on examination are of greater probative value than his allegations regarding the severity of his lumbosacral spine disability. The 10 percent rating in effect prior to June 29, 2010, the 40 percent rating from June 29, 2010 through February 24, 2011, and the 20 percent rating in effect since February 25, 2011, make provision for his pain, and most of the other relevant factors in rating his disability, including the measurement of his range of motion. For these reasons and bases, the preponderance of the evidence is against a rating higher than 10 percent disabling for the low back disability prior to June 29, 2010, and against a rating higher than 20 percent from February 25, 2011, under Diagnostic Codes 5237, 5242, and higher ratings are denied during these two periods. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 54-56. However, resolving reasonable doubt in his favor, a higher staged 40 percent rating is warranted for the service-connected low back disability during the period from June 29, 2010 through February 24, 2011. Id. Other Back Concerns Next, the Board notes that Note (1) to 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 allows the Veteran to receive a separate compensable rating for adverse neurological symptomatology associated with his service-connected low back disability. The medical evidence has already been detailed above. Although some of the evidence, including VA examinations, does not show lumbar radiculopathy of the lower extremities, other evidence shows that he has consistently complained of low back pain radiating into his lower extremities, which some doctors have related to his service-connected low back disability. The June 2010 VA examination indicated that that he had bilateral sensory sciatica, right greater than left. Although the most recent VA examiner found no objective evidence of neurological disability in February 2011, the medical evidence consistently shows a loss of reflexes in the knees, and reduced reflexes at the ankles. Bearing in mind the benefit-of-the doubt rule (38 U.S.C.A. § 5107(b)), the Board finds that throughout the rating period on appeal, the weight of the evidence reflects a sensory deficit in the right and left lower extremities. Taking into account the Veteran's credible report of radicular symptoms, and the objective medical evidence detailed above, the evidence supports a finding that the Veteran suffers with, at most, mild incomplete paralysis of the sciatic nerve of the right and left lower extremities warranting separate 10 percent ratings. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012); see also Gilbert, supra. An even higher rating is not warranted as the objective clinical findings relative to his radicular symptoms do not reflect more serious neurologic impairment, such as atrophy, absent or decreased sensation, foot drop, or significant muscle or motor weakness. Extraschedular Considerations The Board also finds that the circumstances of this case are not so exceptional or unusual as to render impractical the application of the regular schedular standards and warrant referral of this claim to the Director of Compensation and Pension Service or the Under Secretary for Benefits for consideration of an extra-schedular evaluation. 38 C.F.R. § 3.321(b)(1). The schedular rating criteria for the Veteran's low back disability reasonably describe and contemplate the extent and severity of these disabilities, including insofar as his specific symptoms (e.g., chronic pain and associated limitation of motion, etc.) since they are considered in the applicable Diagnostic Codes 5237, 5242, and 5243. See Thun v. Peake, 22 Vet. App. 111 (2008). As such, there is no obligation to refer this claim for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER During the period prior to June 29, 2010, a higher rating in excess of 10 percent for the low back disability is denied. During the period from June 29, 2010 through February 24, 2011, a higher 40 percent rating for the low back disability is granted, subject to governing criteria applicable to the payment of monetary benefits. During the period from February 25, 2011, a higher rating in excess of 20 percent for the low back disability is denied. Throughout the rating period on appeal, separate 10 percent ratings for the neurologic manifestations of the low back disability affecting the right and left lower extremities are granted, subject to governing criteria applicable to the payment of monetary benefits. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs