Citation Nr: 1318696 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 09-07 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE 1. Entitlement to an evaluation in excess of 20 percent for disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period prior to July 23, 2010, on a schedular basis. 2. Entitlement to an evaluation in excess of 20 percent for disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period prior to July 23, 2010, on an extraschedular basis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from October 1993 to August 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Jurisdiction of the claims file is with the RO in Buffalo, New York. During the pendency of the appeal, the RO granted an increased 40 percent evaluation, effective July 23, 2010, in an August 2010 rating decision. That August 2010 rating decision also granted a separate 20 percent evaluation for left lower extremity radiculopathy effective July 23, 2010. The Board previously considered and denied the appeal in September 2011. In that decision, the Board denied an evaluation in excess of 20 percent for the period prior to July 23, 2010, and denied an evaluation in excess of 40 percent for disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period beginning on July 23, 2010. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in May 2012, the Court granted a Joint Motion for Remand submitted by the parties in the case and vacated the portion of the Board's September 2011 decision which denied an evaluation in excess of 20 percent for disk protrusion between L5 and S1 for the period prior to July 23, 2010. The claim for an evaluation in excess of 40 percent for disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period beginning July 23, 2010, was dismissed in the May 2012 Order, and accordingly, that issue is no longer on appeal. In light of the Joint Motion, the Board remanded the claim in December 2012 for further development. As will be discussed in detail below the RO has substantially complied with the requested development, but continued to deny the benefits sought on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, the case is properly returned to the Board. As noted above, an August 2010 rating decision granted a separate 20 percent evaluation for radiculopathy of the left lower extremity, effective July 23, 2010. A review of the record reflects that the Veteran submitted a statement in September 2010 indicating that he was satisfied with the issue of radiculopathy of the left lower extremity, but was appealing the effective date of July 23, 2010, for the disability. Although such a statement would generally require a remand for the issuance of a Statement of the Case, in the present case the October 2008 rating decision which was appealed addressed the issue of the evaluation of disk protrusion between L5 and S1 with lumbosacral radiculopathy. See Manlincon v. West, 12 Vet. App. 238, 240 (1999) (finding that where an NOD is filed, but a Statement of the Case (SOC) has not been issued, the Board must remand the claim so that an SOC may be issued). The issue presently on appeal also concerns the time period prior to July 23, 2010. Additionally, the applicable Diagnostic Code specifically requires that neurologic abnormalities be considered. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. As such, the issue of whether a separate compensable evaluation for the radiculopathy is warranted prior to July 23, 2010, is already considered part and parcel of the claim currently on appeal. As will be explained in detail below, the issue of an extraschedular evaluation for disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period prior to July 23, 2010, is being REMANDED and is addressed in the REMAND portion of the decision below. This issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to July 23, 2010, the Veteran's lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. For the period prior to July 23, 2010, the Veteran's left lower extremity radiculopathy was not productive of mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period prior to July 23, 2010, the criteria for an evaluation in excess of 20 percent for the Veteran's lumbar spine disability have not been met on a schedular basis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.59, 4.71, 4.71a, Diagnostic Code 5292, 5293, 5295 (2001); 4.71a, Diagnostic Code 5237, 5243, 5243 (2008-2012). 2. For the period prior to July 23, 2010, the criteria for a separate compensable evaluation for lumbar radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.71a, Diagnostic Code 5242, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) includes notice that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. In this case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in April 2008, June 2008, December 2008, April 2010, and January 2013, which fully addressed all notice elements. The claim was readjudicated in a March 2013 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Accordingly, the duty to notify has been met. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO obtained the Veteran's service treatment records, VA outpatient treatment records, private treatment records, and reports of VA examinations. The Veteran also submitted private medical records, lay statements, and statements from his employer in support of his claim. Additionally, the Veteran was afforded several VA examinations in connection with his claims. The Board finds that the April 2008 VA examination is adequate, as the examiner considered the Veteran's complaints, reviewed the record, conducted a thorough examination, and provided all findings necessary to adjudicate the claim. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Similarly, the Board finds that the December 2009 VA examination and January 2013 VA addendum opinion are adequate because the examiners considered the Veteran's subjective history and complaints and provided all necessary findings to evaluate the claim. The Board notes the Veteran argued in an April 2013 statement that the most recent VA examination was over two years old, and as such, he should be afforded another examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). However, as explained in the Introduction, the present case only involves the narrow issue of the severity of the lumbosacral spine for the period prior to July 23, 2010. As such, a contemporaneous examination reflecting current findings would not be of assistance in this matter. Furthermore, the claim was remanded for a retrospective opinion, which was provided in January 2013. The claim was previously remanded for additional development to be performed. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. Although the Board is required to ensure compliance with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). In the present case, the Joint Motion indicated that the Board did not comply with Savage v. Shinseki, 24 Vet. App. 259, 269 (2011), and explained that VA should have returned two private medical examination reports and a VA examination to obtain relevant information to rate the claim. Specifically, the Joint Motion noted that the April 2008 and December 2009 private medical reports and a December 2009 VA examination noted limited motion but did not provide the specific limitations the Veteran experienced or the points at which motion was limited by pain. Upon remand, the RO sent requests for this information to R.C., M.D., and R.J., M.D. (initials used to protect privacy), in January 2013 letters; however, neither physician responded. In February 2013, the Veteran enclosed duplicate copies of the April 2008 and December 2009 reports in question and stated that both doctors indicated they had no additional opinions or medical data that had not been submitted already for the time period in question. As the RO has requested the additional information as directed by the Joint Motion and the Veteran further explained that the physicians had no further information to provide, the Board finds that the RO/AMC has substantially complied with the remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). As explained above, the VA obtained an addendum opinion in January 2013, which the Board has found to be adequate. The Veteran and his representative have not identified any other outstanding, available evidence that has yet to be obtained. Accordingly, the Board finds that all necessary development has been accomplished, and no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Law and Analysis The Veteran seeks an increased evaluation for his service-connected disk protrusion between L5 and S1 with lumbosacral radiculopathy (hereinafter lumbar spine disability). By way of history, the RO granted service connection for the lumbar spine disability in a July 2004 rating decision. At that time, a 20 percent evaluation was assigned under Diagnostic Code 5243. In March 2008, the Veteran applied for an increased evaluation, and this appeal followed. 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. As noted above, the Veteran's lumbar spine disability was evaluated under Diagnostic Code 5243. The regulations provide that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula assigns disability ratings with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. A 20 percent disability rating is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion 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 disability rating is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Note (5) defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Diagnostic Code 5243 notes that intervertebral disc syndrome may also be rated under the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes if that would result in a higher evaluation. Under that formula, a 10 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (2). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention 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; see also, Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). As noted in the Introduction, the issue presently on appeal concerns the question of the proper evaluation of the Veteran's spine disability for the period prior to July 23, 2010. The Veteran's claim for an increased evaluation for the lumbar spine was dated in March 2008 and was received by the RO on March 28, 2008. Accordingly, the Board must consider findings from March 2007; however, in the present case, the first records documenting relevant findings during this period are dated in February 2008. 38 C.F.R. §3.400 (o)(2) (noting that the effective date for an increased evaluation can be as early as 1 year prior to the date of the receipt of the claim). The evidence for consideration in this case includes VA outpatient treatment records, VA examination reports, private medical records, lay statements, and employer statements. The Veteran has clearly been treated continuously for his service-connected lumbar spine disability. The record reflects that he was seen by physicians, physical therapists, chiropractors, back specialists, and neurosurgeons. He has treated with pain medication, physical therapy, a transcutaneous electrical nerve stimulation (TENS) unit, acupuncture, patches, creams, exercise and stretching, heat, ice, traction therapy, and epidural steroid injections. A February 2008 record from A.M.C., D.C. reflected complaints of intermittent lower back symptoms that were dull in character and worse upon getting up in the morning. Range of motion testing reflected normal flexion, extension, and right and left lateral flexion, but indicated that bilateral rotation was mildly restricted by pain. Heel and toe walk were negative and Kemp's test and Bechterew test were negative. Reflexes were 2+ throughout. Straight leg raise was negative bilaterally to 80 degrees. Milgram's test was positive for lower back pain. On palpation, mild spasm was found in the lumbosacral region bilaterally. Fixations were noted at T2, T1, T4, T5, T11, L4, and L5 and the bilateral sacroiliac joints. The assessment was lumbar disc herniation with lumbar intersegmental dysfunction. An April 2008 report from R.J., M.D. indicated that decreased activity and pain were an issue and stretching aggravated the pain. The Veteran reported having pain at night and in the morning, but indicated that a shower helped. It was noted that mid-day was better. The Veteran indicated that the pain used to go down the left leg and was located in his lower back. The pain was minimally alleviated by Motrin and was aggravated by sitting and prolonged standing. His pain did not radiate. He denied numbness or tingling. The condition had worsened since the onset during service. The Veteran denied having any associated fever or incontinence, but there was tenderness at the lower lumbosacral segments bilaterally. Bilateral lateral flexion was to 25 degrees, extension was to 20 degrees with pain, and forward flexion was to 90 degrees with pain. Straight leg raise testing was negative, and his heel and toe walk was normal. A slump test was negative, and strength was 5/5 in all distributions. The Veteran's sensation to light touch was intact in the lower extremities, and his reflexes were 2+ bilaterally. The assessment was lumbago and L5/S1 degenerative disc disease. The Veteran was afforded a VA examination in April 2008 during which he reported worsening symptoms, including pain that radiated down the left buttock and behind the left knee. He described significant flare-ups averaging 15 to 16 days a month during which he had further pain, limitation, and dysfunction. He was not housebound or bedbound, and he denied bladder or bowel incontinence. The Veteran also indicated that he was never told by a doctor to have total bedrest during the prior year. He did not use a cane, crutch, or back brace. He could walk up to 1 hour and denied prior surgery or injections. The Veteran was able to perform activities of daily living, such as dressing, bathing, eating, driving, and walking, but he had significant restrictions with bending, lifting, and twisting. He worked as a supervisor in a police department and missed 12 days in the prior year because of his back. His medical visits averaged 2 office visits per month. The Veteran walked with a slight limp. He was able to stand erect, and the spine showed no significant abnormality of color, deformity, swelling, or atrophy. Palpation elicited no abnormality of temperature, crepitus, or swelling. There was tenderness to the paravertebral muscles. The Veteran had forward flexion to 80 degrees with pain from 75 to 80 degrees, extension to 20 degrees with pain from 15 to 20 degrees, left and right side bend to 20 degrees with pain from 15 to 20 degrees, and left and right rotation to 40 degrees. The examiner explained the Veteran repetitively flexed and extended the spine testing for pain, weakness, fatigability, and incoordination, and the range of motion had the same pain pattern after repetition. A neurological examination revealed that the Veteran could raise up to tiptoes and heels, and straight leg raises were 90 degrees bilaterally. His sensation to light touch was grossly normal, and his reflexes were 2+ at the knees and ankles. A motor examination was 5/5 representing normal strength throughout. A May 2008 record from Dr. J. indicated that the Veteran reported having lower back pain rated at times as a 6 on a scale of 10. He denied pain in the legs and was able to perform daily activities. No range of motion findings were provided. A June 2008 statement from D.B., M.D. indicated the Veteran was seen for worsening low back pain that he indicated was limiting some of his functioning. The Veteran reported associated leg symptoms a few years ago, but found that the back pain was more pronounced in comparison. He was given an epidural steroid injection. An August 2008 report from M.K.L., M.D. noted that the Veteran complained of low back pain that was described as a constant aching that he rated as a 7 out of 10. His pain escalated at nighttime and early morning and became a sharp pain rated as a 10. He described difficulty sleeping due to pain; however, by midday, he could exercise without much difficulty and manage the condition. He recalled one episode of left buttock pain radiating down the posterior thigh approximately 4 to 5 years earlier that lasted about 8 months to 1 year. He indicated that chiropractic treatment essentially resolved the left leg pain. He denied having any current leg pain, numbness, or weakness in extremities. He also denied bowel or bladder dysfunction, electric shock sensations, or gait instability. Motor testing revealed good strength, and a sensory examination was normal to pinprick, light touch, and proprioception. His reflexes were physiologic, and the straight leg raise sign was negative. The spine was nontender to palpation, and there was no evidence of paraspinal muscle spasm. It was also noted that there was good range of motion without foraminal closure sign. An August 2008 report from L.B-W., P.T. explained that the Veteran was seen for a physical therapy evaluation and reported low back pain without radicular symptoms since an accident in 1995. He described progressive worsening to level 7 of 10 and explained that his pain was worse upon waking up, but by afternoon, his pain decreased to 2 on a scale of 10. Improved postural positioning decreased low back pain to a minimal degree. His flexibility on standing was within normal limits with the Veteran experiencing an increase in pain upon lumbar extension. His lower extremity strength and range of motion were normal. His sensation was also normal and intact following the lumbosacral dermatomal distribution pattern. Flexion on lying decreased pain; however, extension on lying increased symptoms. He presented with moderate tightness throughout the hamstrings and negative straight leg raise. During a December 2009 VA examination, the Veteran described severe back pain that radiated down both legs, which was worse in the morning. He reported having 6 incapacitating episodes of back pain in the last 12 months requiring 6 days of bedrest. He denied having bowel or bladder incontinence. He did not use a back brace, cane, crutches, or walker, and he could stand 2 hours at a time and walk for 2 hours. He could also bathe, dress, eat, and drive, but he reported having limitation with bending, lifting, and twisting. He worked as an administrator in the police department and missed 30 days in the prior 12 months due to his back. A clinical examination reflected that the Veteran walked with a limp, moved cautiously, and seemed to be in significant pain. There was no gross abnormality of color, deformity, swelling, or atrophy. Palpation elicited no abnormality of temperature, crepitance, or swelling. There was tenderness to paravertebral muscles. The Veteran had flexion to 65 degrees, extension to 15 degrees, left and right side bend to 20 degrees, and left and right rotation to 30 degrees, which were all present with pain. Because of pain and unsteadiness, repetitive testing was deferred. A neurological examination reflected that straight leg raises were 90 degrees bilaterally. His reflexes and sensation to light touch were normal, and his motor strength was 5/5 throughout. The assessment was disc protrusion at L5 S1 with lumbar radiculopathy and intervertebral disc syndrome. A December 2009 private record reflected complaints of pain and indicated the Veteran was seen in urgent care for back spasms and was given a shot. He denied bowel or bladder problems. His strength was 5/5 throughout. He had a limited range of motion of the spine in all directions due to pain. The neurological examination revealed that reflexes were intact and symmetric, and his sensation was intact when tested with monofilament. The assessment was lumbago. A January 2010 private medical record indicated that the Veteran's symptoms had improved and that he had relief with Motrin. There were no bowel or bladder complaints or parasthesias. No point tenderness of the spine was noted, and no range of motion findings were provided. As noted above, the Board remanded the claim in December 2012 to obtain further information concerning the functional effect of pain from two private physicians and the VA examiner. Neither private physician responded. However, the claims file was sent for review by a VA examiner in January 2013. The examiner reviewed the records and responded to the Board's inquiry. The examiner explained that, at the time of the December 8, 2009, VA examination, the Veteran had forward flexion to 65 degrees, extension to 15 degrees, and left and right side bending to 20 degrees. The examiner explained that the functional limitation of the pain was the range of motion that was reported. The Veteran had no functional limitation of left or right rotation of the lumbosacral spine. During severe flare-ups, the Veteran had 6 incapacitating episodes of back pain during the prior year requiring total bedrest of 6 days. In addition to the above flare-ups, pain caused the Veteran to be able to stand only 2 hours at a time and walk for 2 hours. He could bathe, dress, eat, and drive, but had limitations with bending, lifting, and twisting. The Veteran also provided lay statements in connection with his claim. In his March 2008 application, he explained that he was limited in everything he did and stated that he could not do sports or activities that involved physical activity. When he woke up, it took an hour of stretching, heat, and Motrin to get going. He rarely slept through the night without waking up in pain. Although he worked at a desk job, he was limited in working extra hours because of his back. He explained that there were other details at work in which he would like to participate, but stated that he was unable to do so because of the physical activity involved. In an April 2008 statement, the Veteran stated that he discontinued activities and sports that he used to do and noted that sleep was a struggle. In June 2008, the Veteran related that he was unable to perform his duties at work because of an epidural shot he received that day. In his notice of disagreement, the Veteran argued that his ability to flex to certain degrees had nothing to do with the amount of pain he had while doing the motion. He explained his disability affected him every day, prevented him from sleeping through the night, and limited the activities he could do. For example, he no longer ran, played golf, lifted weights, practiced martial arts, or did anything requiring lifting or moving. He could not lift his kids or play with them as he would like. He also explained that he used a traction machine twice a day, used a TENS unit any time he was sitting, and regularly used patches. He reiterated his morning routine to decrease pain so he could function. The Veteran further reported that the epidural injection provided no relief. In a letter to his Congresswoman, the Veteran explained that he could not undergo fusion, as he would not be able to continue as a police officer. He also indicated that he could not work overtime because he was unable to wear the gun and equipment belt for 12 hours. He noted that this caused a strain on his finances. In a January 2010 statement, the Veteran argued that the onset of pain occurred with flexion when he was just standing. He could flex 10 to 20 degrees before pain became extreme. He noted that the examiner only asked the longest period of time he was incapacitated and not the number of times, so he provided a list indicating the number of days his back was so bad that he felt it was incapacitating. The Veteran also explained that, although he generally did not have bowel or bladder incontinence, there were a couple times when he was on severe narcotics that he woke up and found that he had urinated in his sleep. In an April 2010 statement, the Veteran reiterated his complaints about the December 2009 VA examination and indicated that he was out for 34 days in 2009 due to back pain. He also reported that, at times when he was on strong medication, he was unable to feel the need to urinate until it was too late. The Veteran's spouse explained that his back had gotten worse in the past couple years. She related that the Veteran stretched every day, but it now appeared that stretching irritated his back. She indicated that the Veteran no longer did many of his former activities, such as running, horseback riding, golfing, hockey, and martial arts. His only remaining hobby was hunting. She also described changes at work because of his back. For example, he was switched to more of an office job requiring less rigorous things and related that he was on a list for a specialized unit, but because he could not perform the physical activities, he was taken of the list. The Veteran's spouse explained that mornings were the worst time for her husband. He often woke up in pain at night, and when he woke up in the morning, he started with a hot shower, heating pad, and Motrin. She indicated that he could not play with the kids as he wants because they are too heavy for him. The Veteran also sent letters from his employer concerning the effect of his back disability on his employment. An April 2008 letter from the Commander at the Emergency Response Team (ERT) reported that the Veteran submitted a letter of intent to try out for the team, but the work was physically demanding and required officers to carry a significant amount of equipment. Due to his back injuries and limited mobility, the Veteran was unable to perform those tasks or fulfill requirements, and his application was removed. A January 2009 letter from Training Bureau Commander indicated that the Veteran was assigned to an overtime detail that scheduled him for 13 hours of overtime a month. He started the detail in April 2008 and resigned October 2008. In an attached statement, the Veteran explained that he was unable to work the overtime assignment because of his back injury. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an evaluation in excess of 20 percent prior to July 23, 2010, for his service-connected lumbar spine disability. There is no evidence showing that he has flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Rather, the range of motion studies for the period between 2007 and July 22, 2010, reflect forward flexion ranging from 65 degrees (noted on the December 2009 VA examination) to normal (February 2008 and April 2008 private records). The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)). The aforementioned range of motion findings do not demonstrate that the Veteran's lumbar spine is immobile or fixed in place. The Board also considered whether the functional loss due to pain could result in a higher schedular evaluation. While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body. See 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). In this case, the Veteran has significant low back pain. which he treated with medication, physical therapy, chriropractor treatment, acupuncture, patches, creams heat, ice, traction therapy, a TENS unit, and epidural injections. Nevertheless, even considering the effects of pain, there is nothing in the record that suggests the pain resulted in a functional loss akin to flexion limited to 30 degrees or less or favorable ankylosis. The evidence clearly demonstrates the Veteran has continued to retain motion in his lower back, albeit severely limited. As described above, even considering the effects of pain, the Veteran retained motion of at least 65 degrees during this period. The Board carefully considered the Veteran's statement that his pain became excruciating after about 10 to 20 degrees. However, the Veteran has not indicated that he has the equipment or training necessary to provide such a measurement. Although the regulations do not require the use of a goniometer, 38 C.F.R. § 4.46 explains that the use of a goniometer in measuring limitation of motion is indispensable in obtaining accurate measurements. Significantly, the Veteran's assertions are outweighed by private and VA examination reports that reflect that the Veteran had flexion greater than 30 degrees during this time period even considering the functional effect of pain. As outlined above, the April 2008 VA examiner specifically tested for the effect of pain and indicated the range of motion had the same pain pattern of flexion to 80 degrees with pain beginning at 75 degrees, and the January 2013 addendum opinion explained that the functional effect due to pain was the flexion to 65 degrees and limitation in standing and walking of 2 hours and limitation in bending, lifting and twisting. In other words, any additional limitation due to pain does not more nearly approximate a finding of flexion limited to 30 degrees or less or favorable ankylosis of the thoracolumbar spine. 38 C.F.R. § 4.45, 4.71a, Diagnostic Codes 5242; DeLuca, 8 Vet. App. at 202; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Accordingly, the Board is unable to grant an increased schedular evaluation based upon pain. To the extent to which the December 2009 VA examination report and Veteran suggest that he had pain throughout all ranges of motion, the Court has clearly indicated that painful motion does not equate to limited motion. Mitchell, 25 Vet. App. at 41. In fact, the Court considered the argument that pain throughout all ranges should warrant the maximum rating and found that the "Secretary has persuasively argued that such an interpretation would lead to absurd results." Id. at 43. Indeed, nothing in the caselaw supports the contention that a Veteran should be given maximum disability ratings simply because he may experience pain throughout the range of motion. Id. at 43. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss and it is the presence of this functional loss that is the relevant question in assigning disability ratings. Id. As explained above, although there may be pain on all movement, there is no objective evidence that the Veteran's pain results in additional functional loss that would warrant an increased schedular rating during this time period. In addition, there is no evidence showing that the Veteran had at least 4 weeks but less than 6 weeks of incapacitating episodes requiring bed rest prescribed by a physician. In fact, during the April 2008 VA examination, the Veteran indicated that he was never told by a doctor that he had to have total bedrest during the prior year. While the Veteran reported having 6 days of bedrest during the December 2009 VA examination, the record fails to reflect it was prescribed by a physician. The Board notes the Veteran later asserted in a January 2010 statement that the VA examiner had misconstrued his statement and that he actually had 30+ incapacitating episodes. However, as noted above, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. While the Veteran has clearly indicated the pain was severe enough to result in him being "laid up" because of his back, he has not asserted that he was actually prescribed bed rest by a physician on these dates. The Board has also considered whether a higher evaluation could be granted based upon separate evaluations for associated neurological abnormalities. In this regard, the Veteran has consistently denied having bowel incontinence. While he reported some bladder incontinence, he indicated that it happened occasionally overnight. He never asserted that it resulted in wearing absorbent materials that must be changed less than 2 times a day, as required for a compensable evaluation under voiding dysfunction. 38 C.F.R. § 4.115a, Voiding dysfunction. The Veteran also never described symptoms of obstructed voiding or urinary frequency as a result of the lumbar spine that could warrant a separate compensable evaluation. Concerning the radiculopathy, Diagnostic Code 8520 provides for a 10 percent evaluation for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation requires moderate incomplete paralysis; and, a 40 percent evaluation requires moderately severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis," indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. In the present case, there is conflicting evidence pertaining to radiculopathy prior to July 23, 2010. The April 2008 and December 2009 VA examination reflect complaints of radiculopathy. Other records, such as private records dated in May 2008, August 2008 and January 2010, indicate that the Veteran denied the current presence of radiculopathy. In some records where radiculopathy was reported, it was referred to as a past event that occurred prior to the appeal period, and an August 2008 private record noted that chiropractic care essentially resolved the issue. Additionally, records that reported a past history of radiculopathy, such as an April 2008 record from Dr. J. and an August 2008 private record, showed that the Veteran denied the current presence of radiation, numbness, or tingling, and further indicated that neurological testing of sensation and motor strength was normal. Most significantly, during the two VA examinations that noted current complaints of radiculopathy, objective testing on a neurological examination was normal for straight leg raise, sensation, reflexes, and strength. In light of the absence of objective evidence of motor deficits, sensory deficits, painful or weakened motion of the extremities, decreased muscle strength, and positive straight leg raise test, as well as the frequent denials of the presence of radiating pain, the Board finds that that there was not mild incomplete paralysis to warrant a separate compensable evaluation prior to July 23, 2010. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has also considered whether a staged rating is appropriate at any point prior to July 23, 2010. In the present case, the Board finds the symptoms have been relatively constant throughout the appeal period, and thus, an increased evaluation is not warranted at any time. Accordingly, the preponderance of the evidence is against the Veteran's claim, and an increased schedular evaluation is not warranted for the period prior to July 23, 2010. 38 C.F.R. § 4.3. ORDER A schedular evaluation in excess of 20 percent for disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period prior to July 23, 2010, is denied. REMAND Concerning whether an extraschedular evaluation is warranted for the disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period prior to July 23, 2010, the Board finds that further development is necessary. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extra- schedular rating. Id. In the present case, the Veteran has reported symptoms of pain, limited motion, stiffness in the morning, difficulty with prolonged sitting and standing, limitation in bending, lifting, and twisting, pain that interfered with his sleep, an inability to play sports, and limitations in playing with his children. The regulations expressly consider limitation of motion, the effect of incapacitating episodes, and associated neurological symptoms. The regulations also expressly contemplate interference with sitting, standing, and weight-bearing. 38 C.F.R. § 4.45 (f). Additionally, applicable caselaw mandates the Board consider the overall functional effect of symptoms such as pain, limited motion, fatigability, weakness, incoordination and other symptoms. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). However, in the present case, the Veteran has also asserted that pain interfered with his sleep, which is a symptom not contemplated by the regulations or the caselaw. Additionally, in his notice of disagreement, the Veteran specifically argued that his ability to flex to certain degrees had nothing to do with the amount of pain he had while doing the motion and has described an extensive morning routine to get going, which involves stretching, a hot shower, and medication. He also described frequent use of traction and a TENs machine. These symptoms suggest that the schedular criteria in question, which focuses on the range of flexion, may not be adequate to contemplate the Veteran's symptoms. Additionally, the Veteran has submitted evidence suggesting that his low back disability has interfered with his employment. While he was employed as a police officer during the time period in question, the Veteran has provided evidence reflecting that he missed 12 days of work in 2007 and 34 days in 2009 due to back pain. The Veteran also explained that he was unable to participate in some details and overtime because of his back. He has submitted statements from his employer that reflect that his application was removed from the ERT team and that he resigned from an overtime assignment. In other words, there is some evidence of interference with the Veteran's employment. As the Board has found an exceptional or unusual disability picture that is not contemplated by the schedular criteria, the case should be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of the assignment of an extra-schedular rating. In this regard, the Board notes that the Court has held that it is improper for the Board to consider, in the first instance, entitlement to an extra-schedular rating. See Bagwell v. Brown, 9 Vet. App. 157, 158 (1996); Floyd v. Brown, 9 Vet. App. at 94 (1996). Therefore, this claim must be remanded for referral. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claim should be reviewed and forwarded to the Director of VA's Compensation and Pension Service or Under Secretary for Benefits for consideration of entitlement to an extraschedular rating for disk protrusion between L5 and S1 with lumbosacral radiculopathy for the period prior to July 23, 2010, in accordance with 38 C.F.R. § 3.321(b). 2. Following the completion of the above, and any other development deemed necessary, the claim should be readjudicated. If the claim is denied, the Veteran should be provided a Supplemental Statement of the Case and an opportunity to respond before the record is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs