Citation Nr: 1318683 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 04-03 490A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability evaluation for a service-connected lumbosacral strain, to include an evaluation in excess of 10 percent prior to September 5, 2007, and an evaluation in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from January 1989 to October 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim for an increased disability evaluation for his service-connected lumbosacral strain. The September 2002 rating decision also denied an application to reopen a claim of entitlement to service connection for a lumbar disc bulge of L5-S1 and spinal stenosis was also denied at this time. This application was previously denied by the Board in May 2011; however, that decision was not appealed to the United States Court of Appeals for Veterans Claims (Court), and as such, this issue is no longer on appeal. In his February 2004 substantive appeal to the Board (Form 9), the Veteran requested the opportunity to testify at a hearing before a Veterans Law Judge at the local RO. In April 2009, however, the Veteran withdrew this request and has not since requested another opportunity to testify. Accordingly, the Board finds that all due process has been satisfied with respect to the Veteran's right to a hearing. See 38 C.F.R. § 20.704. In September 2011, the RO increased the Veteran's disability evaluation for his service-connected lumbosacral strain to 20 percent, effective as of September 5, 2007. Since this grant did not constitute a full grant of the benefits sought on appeal, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The issue on appeal was previously remanded by the Board in December 2009, May 2011 and September 2012 for further evidentiary development. As discussed below, all requested development has been conducted and the claim has been returned to the Board for adjudication. A review of the Virtual VA paperless claims processing system only reveals documents that are duplicative of those already in the Veteran's physical claims file. FINDINGS OF FACT 1. Service connection was established for a lumbosacral strain in a January 1996 rating decision, effective as of October 14, 1995. 2. In August 1999, the Veteran sustained an injury to his thoracolumbar spine while performing his post-military occupation. 3. Throughout the pendency of the Veteran's claim, his lumbar spine disability has been manifested by pain and limitation of motion; however, this symptomatology has been related to a nonservice-connected work injury rather than to the service-connected lumbosacral strain. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability evaluation in excess of 10 percent for a service-connected lumbosacral strain, prior to September 5, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5295 (2003); Diagnostic Code 5237 (2012). 2. The criteria for establishing entitlement to a disability evaluation in excess of 20 percent for a service-connected lumbosacral strain, as of September 5, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5295 (2003); Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Letters sent to the Veteran in August 2002, June 2003, October 2007 and January 2010, when taken together, provided the Veteran with all necessary information pertaining as to how to substantiate his claim. While all of the required notice was not provided to the Veteran prior to the initial adjudication of his claim, the claim was subsequently readjudicated after proper notice was provided by way of the supplemental statements of the case issued in January and September 2011. In addition, no prejudice has been alleged and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records, as well as the records of the Veteran's outpatient treatment with VA. Copies of the Veteran's Social Security Administration (SSA) records and private treatment records have also been incorporated into the claims file. The Veteran's electronic paperless file (Virtual VA) has also been reviewed, but all of the evidence within this file is duplicative of that already in the physical claims file. The Veteran was also afforded VA medical examinations in August 2002, May 2008, July 2011 and November 2012, and VA has obtained these examination reports. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its September 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) contacted the Veteran and request that he identify all VA and non-VA health care providers. SSA records were also obtained and incorporated into the claims file, and the Veteran was scheduled for an additional VA medical examination, which he attended. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2012). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). At the onset of this claim, the Board notes that the Veteran's service-connected lumbosacral strain was rated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5295. In considering the Veteran's claim, the Board notes that the regulations for rating disabilities of the spine were twice revised during the pendency of the Veteran's claim, effective September 23, 2002; and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). In this regard, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3- 2000; see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Amendments with a specified effective date without provision for retroactive application may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. In this case, either the old or revised rating criteria may apply, although the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000. Under Diagnostic Code 5295, in effect before September 26, 2003, a lumbosacral strain warranted a noncompensable evaluation when manifested by slight subjective symptoms only. A 10 percent rating was assigned when there was characteristic pain on motion. A 20 percent evaluation required evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. The highest rating allowable under this Diagnostic Code, 40 percent, was awarded with evidence of a listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). Effective September 26, 2003, the rating criteria applicable to diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended by VA. The Veteran's lumbosacral strain is now rated under Diagnostic Code 5237. 38 C.F.R. § 4.71a (2012). This code is evaluated under the general rating formula for diseases and injuries of the spine. 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: A 10 percent evaluation will be assigned for 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 height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 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 for 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 (0 degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect from September 26, 2003). Relevant Facts The Veteran contends that he is entitled to an increased disability evaluation for his service-connected lumbosacral strain. For historical purposes, the Veteran was initially granted service connection for a lumbosacral strain in a January 1996 rating decision. A 10 percent disability evaluation was assigned under the then in effect Diagnostic Code 5295, effective as of October 14, 1995. In July 2002, VA received a claim from the Veteran seeking entitlement to a higher disability evaluation for his service-connected lumbosacral strain. This claim was denied in a September 2002 rating decision. A timely notice of disagreement was received from the Veteran in January 2003, but the 10 percent disability evaluation was continued in a February 2004 statement of the case. The Veteran appealed this decision to the Board in February 2004. During the pendency of this claim, the Veteran's disability evaluation was increased to 20 percent under Diagnostic Code 5237 (in effect since September 26, 2003), effective as of September 5, 2007. The AMC indicated that this was the date of receipt of the Veteran's claim. However, as discussed in the preceding paragraph, the claim was in fact received in July 2002. While an additional claim for a higher rating was received in September 2007, his earlier claim was still in appellate status at this time. Therefore, the issue currently before the Board is entitlement to a disability evaluation in excess of 10 percent prior to September 5, 2007, and entitlement to a disability evaluation in excess of 20 percent as of September 5, 2007. While the Veteran has been service-connected for a lumbosacral strain, the record reflects that he sustained a work-related injury that took place on August 5, 1999. An X-ray taken on August 6, 1999, revealed a negative lumbosacral spine with normal body heights and preserved disc interspaces. However, a January 2000 lumbar computed tomography (CT) scan revealed evidence of a complete left posterior lateral annular tear. According to an August 2001 record from Longview Orthopaedic Clinic Association, the Veteran sustained an injury to the low back when picking up mailbags at work. He had since undergone a lumbar fusion, but he continued with a persistent amount of back and leg pain. A letter from a private physician dated August 2001 to the US Department of Labor described a history of back pain since the August 1999 injury. There was no mention of a history of chronic symptomatology prior to this event. A September 1999 letter from a private physician, Dr. K.S., also indicated that the Veteran was first treated by him on August 6, 1999, for lumbar pain and tenderness. Dr. S indicated that the Veteran did have a past history of lumbar pain from his military service and the duties he was performing now seemed to exacerbate this condition. The Veteran underwent an additional surgery in February 2002. Specifically, the Veteran underwent decompression posteriorly at L5-S1 with posterolateral fusion using a local bone graft. The Veteran also fell in June 2002, slipping on a rug and losing consciousness. The Veteran reported low back pain following this injury, although it was noted that he had a previous history of back problems since having back surgery. The Veteran was diagnosed as status post-fall with an acute lower back strain. In July 2002, VA received a claim from the Veteran seeking an increased disability evaluation for his service-connected lumbosacral strain. An October 2002 magnetic resonance image (MRI) revealed arthrodesis L5-S1 in good position with some apophyseal degenerative changes causing mild bilateral foraminal stenosis at L4-5 and L5-S1. The record also contains a statement dated October 2002 from the Veteran's private physician, Dr. K.H.S., wherein he stated he had been treating the Veteran since February 1997 and he first saw him for back-related pain in August 1999. The Veteran was afforded a VA examination of the spine in August 2002. The Veteran was noted to be status post lumbosacral fusion with discectomy and cage placement in 2000, as well as status-post decompressive laminectomy with L5-S1 fusion in February 2002. It was noted that while the Veteran injured his back during service around 1991 or 1992, X-rays taken approximately one month after the incident were negative. The Veteran was currently complaining of constant pain, weakness, stiffness, easy fatigability, lack of endurance and sciatic-type pain down the left lower extremity greater than the right. The examiner concluded that the Veteran was presently in mild distress. He had obvious gait disturbance on the left side and walked with a cane. Range of motion testing revealed 0 degrees of extension, 22 degrees of hyperextension, 69 degrees of anterior forward flexion, 30 degrees of right lateral flexion and 15 degrees of left lateral flexion. All of these measurements were noted to be with pain and muscle spasms. Muscle spasms were noted down the left leg when straight leg raises were performed. The Veteran was diagnosed with a low back strain in 1991 and status post lumbosacral fusion and discectomy with cage placement in 2000, as well as right iliac bone graft to L5-S1. He was also status post decompressive laminectomy with fusion L5-S1 in February 2002. An August 2002 lumbar CT scan confirmed that the Veteran was status post-laminectomy at the L5-S1 level with metal spacers replacing the disc at that level. According to a December 2002 new patient initial assessment note, the Veteran was status post lumbar fusion and decompression. The Veteran also reported that he injured his back in service in 1991 or 1992 and that he went to work for the postal service after his separation from the military. The Veteran also described radiating pain and numbness down into the left leg. A May 2003 private treatment record also notes a loss of bladder control. An MRI taken at this time revealed post-operative changes of titanium cage placement at L5-S1 with mild left-sided neural foraminal stenosis at L5-S1 due to lateral disc bulging. There was no disc herniation or spinal stenosis identified at this time. A September 2003 record also notes that, while the Veteran was previously doing very well and was given a full release to work in June 2002, he was forced to go to the Emergency Room (ER) in August 2003 because of pain. The Veteran had been unable to go to work since this time. A lumbar CT scan dated February 2004 revealed the Veteran to be post-laminectomy at the L5-S1 level. Compromised neural foramina were not visible, but the reviewing physician indicated that some nerve roots could be stretched as a result of the widened L5-S1 interspace. There was also some face arthropathy at the lumbosacral junction. An October 2004 VA treatment record reflects that the Veteran reported that his low back pain began in 1991 when he fell off of a vehicle. He was now status post surgery with no change in his overall pain. In February 2005, the Veteran was seen for a follow-up of his L5-S1 lumbar fusion and decompression. It was noted that the Veteran also indicated that he injured his back in service in 1991 or 1992 and that he went to work for the postal service after military service. An August 2007 VA treatment note reflects that the Veteran was reported chronic pain secondary to injuries sustained in the service. However, an August 2007 mental health note reflects no complaints of discomfort at this time. A September 2007 VA treatment record reflects a history of low back pain with two surgeries in 2002. These resulted in no improvement in pain. The Veteran underwent another VA examination of the spine in May 2008. The Veteran reported that he first injured his back around 1991 or 1992 while in service. He reported that he received treatment and was put on light duty for approximately a week. He was given a profile for the rest of his Army career and he was diagnosed with chronic low back strain. X-rays at this time, however, were negative. The Veteran reported that following his separation from active duty, he worked for the postal service for approximately three years where he had recurring and worsening back pain. He subsequently underwent two back surgeries and was in receipt of worker's compensation for an injury incurred on his job. The Veteran reported worsening back pain since his last VA examination. The Veteran denied a history of urinary or bowel problems, as well as numbness, paresthesias or leg or foot weakness. The Veteran endorsed symptoms of decreased motion, stiffness, spasms and pain, as well as radiating pain into the lower extremities. He also described severe daily flare-ups lasting for hours. The Veteran reported that when this occurred he could not do anything until the pain subsided. The examiner noted that the Veteran used a cane and was unable to walk more than a few yards. Examination revealed spasm of the thoracic sacrospinalis muscles that was not severe enough to be responsible for abnormal gait or abnormal spinal contour. There was also guarding, pain with motion, tenderness and weakness. The Veteran's posture was normal, but he walked with an antalgic gait and had kyphosis. Range of motion testing revealed flexion to 50 degrees (with pain beginning at 25 degrees), extension to 10 degrees (with pain beginning at 5 degrees), bilateral lateral flexion to 15 degrees (with pain beginning at 5 degrees) and bilateral lateral rotation to 15 degrees (with pain beginning at 5 degrees). While there was an increase in pain, weakness, fatigue and lack of endurance on repetitive use, there was no incoordination or additional loss of motion. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. The examiner opined that this would result in severe effects on the Veteran's usual daily activities. The Veteran indicated that he was now unemployed due to an injury he sustained while at work. The Veteran was afforded another VA examination of the spine in July 2011. The Veteran reported symptoms of fatigue, decreased motion, stiffness, weakness, pain and spasm. It was noted that the Veteran used a cane to assist with ambulation and that he was unable to walk more than a few yards. Examination revealed normal posture, but his gait was described as slow. There was no abnormal spinal curvature or ankylosis. Muscle spasms were also noted. Range of motion testing revealed flexion to 50 degrees, extension to 5 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 20 degrees. There was no objective evidence of pain on motion and no additional limitations after repetitive motion. The examiner diagnosed the Veteran as post-operative lumbar fusion with persistent pain. The examiner opined that the present level of severity of the Veteran's symptoms was not caused by or a result of his service-connected lumbar strain. The examiner explained that a strain is a pull of soft tissues as was his service-connected lumbar strain. There was a slight functional aggravation at the time of his discharge, but like most strains, it was either going to resolve with no residuals or develop into a disc condition faster than you would expect for somebody's age. The examiner explained that normal X-rays taken five years after the in-service injury, along with an independent medical clearance physical to work at his job and to perform a job for years with lifting and walking with heavy loads, revealed that the Veteran's strain resolved without residuals. The Veteran was doing heavy lifting in 1999 - eight years after military service. This was deemed to be proof that the 1991 event had resolved itself. The examiner opined that if the Veteran had not hurt himself while lifting on the job in 1999, he would not have the present problems that he was experiencing. This opinion was felt to be verified by the fact that his employer was paying him a disability benefit since he was hurt on their job. The Veteran was afforded a VA peripheral nerve examination in November 2012. It was noted that the Veteran injured his back while on active duty and that he had had back problems off and on. The Veteran reported that it began with leg problems called sciatica fairly soon after the injury. The examiner concluded that the Veteran suffered from bilateral lumbar radiculopathies, mild on the right and moderate on the left. An addendum to the November 2012 VA examination was prepared in March 2013. The examiner concluded that the Veteran's right leg complaints were secondary to his service-connected back injury and were of the same nature, albeit somewhat milder than those involving his left lower extremity. Service connection for radiculopathy of the right lower extremity was subsequently established. See April 2013 rating decision. Prior to September 5, 2007 The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent for a lumbosacral strain, prior to September 5, 2007. Since the Veteran's disability was previously rated under Diagnostic Code 5295, the Board will first consider whether a higher rating is available under this code. Again, a higher rating of 20 percent is warranted under Diagnostic Code 5295, as it existed prior to September 26, 2003, when there is lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 38 C.F.R. § 4.71a (2003). According to the August 2002 VA examination report, while the Veteran reported symptoms such as constant pain and weakness, it was determined that he was only in mild distress. The Veteran also maintained lateral spine motion, despite the presence of muscle spasms. Applying these facts to the rating criteria listed above, the Board finds the Veteran's symptoms do not reach or more nearly approximate the level of disability contemplated by the higher, 20 percent rating under Diagnostic Code 5295. The August 2002 VA examiner also noted that while the Veteran injured his back during service, X-rays taken a month after this injury were normal. Subsequent records reflect that the Veteran continued to seek treatment and evaluation for the injury he sustained at the L5-S1 level while on the job. As the Board declined to reopen this issue in May 2011, and the Veteran did not appeal this decision, service connection for this condition is no longer at issue. The record contains no further evidence of treatment or symptomatology for the Veteran's service-connected lumbosacral strain, prior to September 5, 2007. As such, a higher disability evaluation under this criterion is not warranted. The Board has also considered whether a higher disability evaluation may be warranted under Diagnostic Code 5237, since the effective date of September 26, 2003. As already noted, a higher disability evaluation of 20 percent is warranted under this code when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or, when there is a combined range of motion of the thoracolumbar spine not greater than 120 degrees, or, when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a (2012). A review of the August 2002 VA examination report fails to reflect that all of the necessary range of motion measurements were taken. Specifically, bilateral lateral rotation was not measured at this time, preventing an accurate picture of the Veteran's combined thoracolumbar range of motion. Nonetheless, forward flexion was noted to be to 69 degrees, which is greater than that contemplated by a 20 percent disability evaluation under Diagnostic Code 5237. See id. Also, while there was mention of muscle spasm down the left leg, the evidence of record fails to reflect that this spasm was severe enough to result in an abnormal gait or abnormal spinal contour. As such, the criteria for a higher disability evaluation based on the rating criteria presently in effect have not been met. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2012). The Board recognizes that the Veteran reported pain on motion and that he described daily flare-ups of "10" during his August 2002 VA examination. However, as will be discussed in the following section, the July 2011 VA examiner concluded that the Veteran's in-service lumbosacral strain had resolved and that his current symptomatology is secondary to a work-related injury sustained in 1999. The August 2002 VA examiner also indicated that X-rays taken one month after the Veteran's in-service injury were normal. The Veteran has not provided VA with any competent evidence relating his current symptomatology or functional loss to his service-connected lumbosacral strain, rather than his post-service work injury. When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). While the Veteran is certainly competent to testify to his previous and current symptomatology, the evidence fails to reflect that he has the requisite training or expertise to relate his current symptomatology to one injury over another. The August 2002 VA examiner explained that X-rays were, in fact, normal one month after the in-service injury, and the July 2011 VA examiner opined, based on a review of the evidence of record and examination of the Veteran, that his currently symptomatology was in fact related to his post-service back injury, as opposed to his resolved in-service strain. As such, the preponderance of the evidence fails to reflect any symptomatology or degree of functional loss related to the service-connected lumbosacral strain that would warrant a higher disability evaluation at any time prior to September 5, 2007. As of September 5, 2007 Likewise, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation in excess of 20 percent for his service-connected lumbosacral strain as of September 5, 2007. Under Diagnostic Code 5237, a higher disability evaluation of 40 percent is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or, when there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a (2012). According to the May 2008 VA examiner, the Veteran was capable of flexion of the thoracolumbar spine to 50 degrees. The July 2011 VA examiner also concluded that the Veteran was capable of forward flexion to 50 degrees. As such, the Veteran does not meet the criteria for a disability evaluation in excess of 20 percent for his service-connected lumbosacral strain at any time since September 5, 2007, under the regulations that have been in effect since September 26, 2003. The Board has again considered whether there is evidence of functional loss related to the Veteran's service-connected lumbosacral strain. See DeLuca, 8 Vet. App. at 202. While the Veteran did experience pain starting at 25 degrees, he was still capable of flexion to 50 degrees. This is not evidence of functional loss of sufficient severity to warrant a higher disability evaluation. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is in fact impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Despite the Veteran's pain, the examiner still concluded that there was no actual reduction in range of motion upon testing due to this pain. Furthermore, and even more telling, the July 2011 VA examiner opined that the current symptomatology was not due to his service-connected lumbar strain, which resolved without residuals. It was the Veteran's work-related injury that was responsible for his current symptomatology. As such, there is no evidence of functional loss due to a service-connected lumbosacral strain and a disability evaluation in excess of 20 percent is not warranted at any time since September 5, 2007. The Board has also considered whether a disability evaluation in excess of 20 percent may be warranted at any time since September 5, 2007, under the regulations that were in effect prior to September 26, 2003. Under Diagnostic Code 5295, a higher evaluation of 40 percent is warranted for a lumbosacral strain that is severe with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. 4.71a (2003). According to the May 2008 VA examination report, the Veteran did suffer from an abnormal gait with kyphosis. However, he was capable of flexion to 50 degrees (despite his pain), and there was no evidence of symptoms that more nearly approximate a severe disability, including listing of the whole spine to the opposite side or loss of lateral motion. The Veteran was again capable of flexion to 50 degrees upon examination in July 2011, and it was noted that the present level of severity of the Veteran's symptomatology was due to his work-related injury and not his service-connected lumbosacral strain that had resolved. As such, the preponderance of the evidence of record demonstrates that the Veteran's service-connected lumbosacral strain fails to result in symptomatology that would warrant a higher disability evaluation under Diagnostic Code 5295. See id. The Board has also considered whether a higher rating may be warranted based on intervertebral disc syndrome at any time during the pendency of this claim. However, the Veteran is not service-connected for intervertebral disc syndrome - rather, a lumbosacral strain. Nevertheless, the Board notes there is no competent lay or medical evidence showing the Veteran's service-connected disability has resulted in incapacitating episodes that required treatment or bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). As such, the formula for rating intervertebral disc syndrome is not applicable to the Veteran's claim. Note (1) to 38 C.F.R. § 4.71a instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. In April 2013, service connection was granted for radiculopathy of the right and left lower extremities. The Veteran did not express disagreement with the effective date or percentage assigned for these disabilities, and as such, the issues of entitlement to separate ratings for radiculopathy are no longer before the Board. The Board does note, however, that a May 2003 private treatment record reflects a loss of bladder control. An MRI taken at this time revealed surgery at the L5-S1 level - a condition for which service connection has not been established and that is no longer on appeal. Subsequent records fail to confirm a loss of bladder control related to a lumbosacral strain, and the Veteran explicitly denied bowel or bladder problems during a future examination in May 2008. As such, a separate disability rating for this condition is not warranted, as a neurologic condition associated with the service-connected lumbosacral strain disability is not reflected in the preponderance of the evidence. In making this determination, the Board is cognizant of the fact that the November 2012 VA examiner expressed an opinion that the Veteran's radiculopathy was in fact secondary to his in-service back injury, suggesting that there are in fact residuals related to this injury. However, this examination was based purely on neurological manifestations. The July 2011 VA examiner, on the other hand, examined the Veteran's orthopedic manifestations and concluded that his symptoms, such as limited motion, were not due to the in-service injury. Therefore, despite the positive etiological opinion between the Veteran's neurological manifestations of the lower extremities and his in-service injury, the preponderance of the evidence of record demonstrates that the Veteran's orthopedic manifestations are due to a post-service work injury rather than an in-service strain. The Board recognizes that the Veteran truly believes he is entitled to a higher disability evaluation for his service-connected back injury. In a March 2009 statement, the Veteran asserted that because of this injury, he suffered severe pain and muscle spasms and had to spend 24 hours per day in a bed. While the Board is extremely sympathetic to the Veteran's situation, the July 2011 VA examiner concluded that the Veteran's current symptomatology was not related to his in-service injury, but rather his work-related injury suffered in 1999. The examiner explained that a review of radiographic evidence some five years after the Veteran's in-service injury, along with his ability to work in a job with lifting and walking, demonstrated that this condition, like most muscle spasms, had in fact resolved. Therefore, the current symptomatology described by the Veteran, while competent, is outweighed by the objective medical evidence and opinions of record and, thus, do not establish entitlement to a higher evaluation is warranted for his service-connected lumbosacral strain. Finally, the Board is aware that the Veteran has suggested that he continued to suffer back pain following his military injury until his occupational injury several years later, and, that he believed the two were related. However, this issue is no longer before the Board, as the request to reopen a claim of entitlement to service connection for a lumbar disc bulge at L5-S1 and spinal stenosis was previously denied by the Board in May 2011. The Veteran did not appeal this decision in a timely fashion and it is now final. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. As such, the present determination has been limited solely to the symptomatology associated with the Veteran's service-connected lumbosacral strain. Extraschedular Consideration The Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's numerous complaints as to how his back disabilities impact his activities of work and daily living. In the Board's opinion, which is based upon review of all lay and medical evidence of record, all aspects of this disability are adequately encompassed in the assigned schedular ratings, however. As indicated by the July 2011 VA examiner, the Veteran's current symptomatology is not related to his in-service injury, but rather, a nonservice-connected work injury. Nonetheless, his 10 percent and 20 percent ratings contemplate symptomatology such as pain, limited motion and muscle spasm. In short, the Board finds that the assigned schedular evaluation is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to an increased disability evaluation for a lumbosacral strain, to include an evaluation in excess of 10 percent prior to September 5, 2007, and an evaluation in excess of 20 percent as of September 5, 2007, must be denied. ORDER The claim of entitlement to a disability evaluation in excess of 10 percent for a service-connected lumbosacral strain, prior to September 5, 2007, is denied. The claim of entitlement to a disability evaluation in excess of 20 percent for a service-connected lumbosacral strain, as of September 5, 2007, is denied. ____________________________________________ A.J. TURNIPSEED Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs