Citation Nr: 1319181 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 06-23 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to ratings in excess of 10 percent prior to October 6, 2009, and in excess of 40 percent from October 6, 2009 (other than during a period of temporary total disability from February 13, 2012, to April 1, 2012), for lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion. 2. Entitlement to an earlier effective date for the temporary total (100 percent) evaluation for surgical treatment necessitating convalescence. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1976 to February 1981 and from February 1984 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By way of a November 2009 rating decision, the RO in Huntington, West Virginia concluded that a 40 percent rating was warranted from the date of a VA examination conducted on October 6, 2009. In a March 2013 rating decision, the Appeals Management Center (AMC) assigned a temporary total (100 percent) evaluation effective February 13, 2012, for surgical treatment necessitating convalescence; the 40 percent rating was continued effective April 1, 2012. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35, 38 (1992). As noted above, during the pendency of this appeal, the Veteran was awarded an increased evaluation of 40 percent for his service-connected lumbar spine disability. The Veteran has not suggested that this increased evaluation would satisfy his appeal for a higher evaluation of his disability. Nor has he or his representative otherwise suggested that the maximum rating available for that disability is not being sought. Therefore, the Board concludes that the issue of entitlement to a higher rating for a lumbar spine disability remains before the Board. In May 2009 and May 2011, the Veteran testified at hearings conducted at the RO in Atlanta, Georgia before Veterans Law Judges (VLJs). Transcripts of both hearings have been associated with the claims file. The law requires that the VLJ who conducts a hearing on appeal must participate in any decision made on that appeal, and that the matter will be decided by a three member panel of VLJs. 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012). The Court has held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Arneson v. Shinseki, 24 Vet. App. 379 (2011). Pursuant to the Court's holding in Arneson, a letter was sent to the Veteran in August 2011 notifying him that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal. As the Veteran has not responded to this letter, the Board concludes that he does not desire a hearing and therefore, an additional hearing is not needed. The case was previously remanded by the Board in July 2009, August 2011 and August 2012 to obtain additional treatment records, Social Security Administration (SSA) records, afford the Veteran new VA examinations, and to determine if he desired another hearing. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2013, new evidence consisting of private treatment records was received at the Board. The Veteran specifically waived his right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2012). The issue of entitlement to an earlier effective date for the temporary total (100 percent) evaluation for surgical treatment necessitating convalescence being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. Prior to October 6, 2009, the Veteran's lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical equated to disability tantamount to characteristic pain on motion and had not resulted in ankylosis of the spine; intervertebral disc syndrome (IVDS) did not cause moderate symptoms or incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; there were no associated objective neurologic abnormalities for which a separate rating might be granted. 2. Since October 6, 2009, the Veteran's lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion equates to disability tantamount to flexion of the thoracolumbar spine to 30 degrees and has not resulted in ankylosis of the spine; IVDS is not pronounced and has not resulted in incapacitating episodes having a total duration of at least six weeks during the past 12 months; there are no associated objective neurologic abnormalities for which a separate rating may be granted. CONCLUSIONS OF LAW 1. Prior to October 6, 2009, the criteria for a rating in excess of 10 percent for lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a Diagnostic Code (DC) 5293 (2002); 38 C.F.R. § 4.71a, DCs 5237, 5292, 5295 (2003); 38 C.F.R. § 4.71a, DCs 5237, 5243 (2012). 2. Since October 6, 2009, the criteria for a rating in excess of 40 percent for lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.71a DC 5293 (2002); 38 C.F.R. § 4.71a, DCs 5237, 5292, 5295 (2003); 38 C.F.R. § 4.71a, DCs 5237, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants 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, 3.1756(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant was must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, letters dated in December 2003, April 2004 and June 2008 complied with VA's duty to notify the Veteran. Specifically, these letters apprised the Veteran of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The June 2008 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the June 2008 letter informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records and SSA records in furtherance of his claim. The Board observes that the Veteran's SSA records include some documents that are in Spanish. The SSA decisions are dated in 1991 and do not include evidence dated after 1991, eight years prior to the Veteran's claim. As the records are several years outside of the pertinent time period for increased rating claims, they cannot be used to support an increased rating. Therefore, the Board concludes that a translation of such documents is not necessary. The Veteran has not identified any additional pertinent medical records which have not been obtained and associated with the claims folder. Thus, the Board finds that VA has met its duty to assist the Veteran in terms of obtaining pertinent medical records. 38 C.F.R. § 3.159(c)(1)-(3). In addition, pertinent VA examinations/opinions with respect to the issue adjudicated herein were obtained in October 2009, August 2011 and August 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations/opinions obtained in this case are sufficient, as they considered all of the pertinent evidence of record, including the Veteran's statements, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. VA's duty to assist with respect to obtaining a VA examination with regard to the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also provided with two hearings related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJs explained the issue on appeal, but did not note the specific criteria necessary to substantiate the increased rating claim or suggest the submission of any additional evidence. This was not necessary, however, because the Veteran volunteered his treatment history and current symptoms, thus fully describing the nature and severity of his lumbar spine disorder. He also indicated where he had been treated and the claim was remanded previously to obtain such evidence. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearings. As such, the Board finds that, consistent with Bryant, the hearings complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation 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. § 4.7. In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Here, as noted in the background discussion below, the effects of pain on use, functional loss, and incoordination were taken into account in assessing the range of motion of the Veteran's service-connected joint disability. The Court has held that staged ratings are appropriate for initial rating and increased-rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed in detail below, staged ratings are warranted in this claim. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. § 4.7. The Veteran contends that he is entitled to ratings in excess of 10 percent prior to October 6, 2009, and in excess of 40 percent from October 6, 2009, for his lumbar spine disability due to the severity and frequency of his symptomatology. In this case, the Veteran's lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion has been shown to cause limitation of motion of his lumbosacral spine. This service-connected disability is rated as 10 percent disabling prior to October 6, 2009, under 38 C.F.R. § 4.71a, DC 5295, which evaluates impairment from lumbosacral strain; and as 40 percent disabling since October 6, 2009, under 38 C.F.R. § 4.71a, DC 5237, which also evaluates impairment from lumbosacral strain. During the pendency of the Veteran's appeal, the regulations pertaining to evaluation of disabilities of the spine were amended. See 67 Fed. Reg. 54345 -54349 (Aug. 22, 2002) (effective September 23, 2002); See 68 Fed. Reg. 51454 -51456 (Aug. 27, 2003) (effective September 26, 2003). The changes made effective September 23, 2002, involve only changes to the rating of intervertebral disc syndrome (IVDS), evaluating this disability based on the occurrence of incapacitating episodes. The second change, effective September 26, 2003, renumbered all of the spine diagnostic codes, and provides for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a (2012). Because old and new criteria were effective during the period of consideration for this case, the Board must determine whether the revised version is more favorable to the Veteran. See VAOPGCPREC 7-2003. However, even if the Board finds the revised version more favorable, the reach of the new criteria can be no earlier than the effective date of that change. See VAOPGCPREC 3-2000. The RO addressed the Veteran's thoracolumbar spine claim under the old criteria in the July 2004 rating decision and in the May 2006 statement of the case (SOC). The RO and AMC addressed the Veteran's claim under the current regulations in November 2009, June 2010 and March 2013 rating decisions and in supplemental statements of the case (SSOCs) dated in March 2008, November 2008, November 2009, July 2010, February 2011, June 2012 and January 2013. The Board observes that in the rating decisions and SSOCs that addressed the Veteran's disability under the new criteria, the old criteria were not explicitly considered. However, prior to October 6, 2009, as discussed below, the pertinent evidence of record showed treatment for back pain, but findings relevant to the old and new criteria, including IVDS, were not shown. As there was no question of which criteria were more beneficial to the Veteran, the Veteran is not prejudiced by the RO and AMC's failure to specifically address the old rating criteria. Effective October 6, 2009, the Veteran's disability rating of 40 percent is the highest available based on limitation of motion absent ankylosis under both the old and new criteria. Regarding a rating for IVDS higher than 40 percent, the Veteran has not show symptoms such that the old rating criteria could be applied. Therefore, there is no prejudice to the Veteran for the Board to proceed with the adjudication of this appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). Furthermore, a remand for consideration of the old rating criteria would cause undue delay and not benefit the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). With respect to IVDS, prior to September 23, 2002, IVDS was evaluated under 38 C.F.R. § 4.71a, DC 5293. Under the criteria effective prior to September 23, 2002, IVDS which was mild warranted a 10 percent rating. 38 C.F.R. § 4.71a, DC 5293 (2002). A 20 percent rating was warranted for moderate symptoms with recurring attacks. Id. A 40 percent rating was warranted for severe symptoms, with recurrent attacks and intermittent relief. Id. Pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief warranted a 60 percent rating. Id. DC 5293, in effect from September 23, 2002, to September 26, 2003, was used to evaluate IVDS (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Pursuant to DC 5293, a 10 percent evaluation was assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5293 (2003). A 20 percent evaluation was warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Id. A 40 percent evaluation was warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent evaluation was warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. For purposes of evaluation, an incapacitating episode was a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Chronic orthopedic and neurologic manifestations meant orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that were present constantly, or nearly so. 38 C.F.R. § 4.71a, DC 5293, Note (1) (2003). When evaluating on the basis of chronic manifestations, orthopedic disabilities were evaluated using criteria for the most appropriate orthopedic diagnostic code or codes and neurologic disabilities were evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, DC 5293, Note (2) (2003). Since September 26, 2003, DC 5243 provides that IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Pursuant to DC 5243, a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one weeks but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243 (2012). A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Id. A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1) defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. With respect to the rating criteria for spine disorders other than IVDS in effect prior to September 26, 2003, disabilities of the lumbar spine could be rated under DCs 5285, 5286, 5289, 5292, and 5295. In this case, DCs 5285, 5286, and 5289 are inapplicable as DC 5285 rated residuals of fractured vertebra and DCs 5286 and 5289 rated ankylosis, which have not been shown. 38 C.F.R. § 4.71a, DCs 5285, 5286, 5289 (2003). Under prior DC 5292, which evaluates impairment from limitation of motion of the lumbar spine, a 10 percent rating is warranted for slight limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (2003). A 20 percent rating is warranted for moderate limitation of motion. A 40 percent rating is warranted for severe limitation of motion. Id. Under prior DC 5295, which evaluates impairment from a lumbosacral strain, a 10 percent rating is warranted with characteristic pain on motion. 38 C.F.R. § 4.71a, DC 5295 (2003). A 20 percent rating is warranted with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. Id. A 40 percent rating is warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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. Id. Since September 23, 2003, DCs 5235-5243 are rated under the General Rating Formula for Diseases and Injuries of the Spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. Under the General Rating Formula, a 10 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237 (2012). A 20 percent evaluation is for application with 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. Id. A 40 percent evaluation is for application when forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine. Id. Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Period Prior to October 6, 2009 For the rating period prior to October 6, 2009, the Board concludes that a rating in excess of 10 percent is not warranted under the old or new rating criteria. Treatment records dated prior to an October 2009 VA examination show repeated complaints of back pain as well as the diagnosis of degenerative disc disease. They also show that the Veteran complained of leg pain and numbness and was diagnosed with sciatica. The degrees of range of motion that the Veteran had were not shown. A record dated in June 2003 revealed that the Veteran's degenerative disc disease was opined to be moderate; however, this record does not show recurring attacks of IVDS. These records do not contain clinical findings indicating that a rating in excess of 10 percent is warranted. Under the old rating criteria, there is no indication in these records that the Veteran had muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in standing position warranting the next higher rating of 20 percent under DC 5295. The evidence also fails to show that the Veteran's limitation of motion equated to moderate such that a 20 percent rating under DC 5292 was warranted. Therefore, the Board concludes that a rating in excess of 10 percent prior to October 6, 2009, under the old rating criteria for disabilities other than IVDS is not warranted. The evidence also does not show that the Veteran had forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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. Therefore, the criteria for a 20 percent rating under the new criteria for this period have not been met. Regarding IVDS, the Board observes that an April 2006 VA opinion indicates that the degenerative disc disease with herniated nucleus pulposus was not service-connected. However, an October 2009 VA examiner opined that the Veteran's degenerative disc disease should not be separated from his service-connected lumbar strain. As noted on the title page, degenerative disc disease is considered as part of the Veteran's service-connected lumbar disability. Therefore, the Board finds that the criteria for IVDS are applicable. In this case, the evidence during this time period does not show that the Veteran had moderate IVDS with recurring attacks warranting a 20 percent rating under the rating criteria in effect September 23, 2002. As noted above, the record shows complaints of pain and treatment for his back, including a record showing an opinion that his degenerative disc disease was moderate, but recurring attacks of IVDS were not shown. As for the rating criteria in effect from September 23, 2002, to September 26, 2003, the evidence does not show incapacitating episodes having a total duration of at least two week but less than four weeks during the past 12 months. Therefore, a higher rating of 20 percent under this criteria for incapacitating episodes is not warranted. Additionally, a rating in excess of 10 percent by combining under § 4.25 separate evaluations of chronic orthopedic and neurological manifestations is not warranted. As discussed in detail below, the evidence during this time period fails to show that the Veteran had neurological manifestations. As such, a rating in excess of 20 percent for IVDS under the criteria in effect from September 23, 2002, to September 26, 2003, is not warranted. As for the new rating criteria in effect since September 26, 2003, as already noted above, the evidence does not show incapacitating episodes having a total duration of at least two week but less than four weeks during the past 12 months. A rating in excess of 10 percent for IVDS under the current rating criteria is not warranted. Therefore, under the old and new rating criteria, the evidence fails to show that a rating in excess of 10 percent prior to October 6, 2009, is warranted. In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating under the old and new diagnostic codes used to evaluate lumbar spine disabilities based on limitation of motion is not warranted. See 38 C.F.R. § 4.40 (a little used part of the musculoskeletal system due to pain may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like). None of the VA treatment records show that the Veteran had evidence of disuse such as muscle atrophy. Additionally, the records fail to show that the Veteran's painful motion resulted in functional impairment. Accordingly, the criteria for a rating in excess of 10 percent have not been met. 38 C.F.R. § 4.71a, DCs 5292, 5295 (2003); 38 C.F.R. § 4.71a, DC 5237 (2012). The Board has also considered whether separate ratings are warranted for any objective neurologic abnormalities associated with this disability during this time period. In this case, as noted above, the evidence reflects leg complaints as well as a diagnosis of sciatica. However, the treatment records do not contain any neurological testing or other objective findings to confirm that the Veteran had neurological impairment. The pertinent evidence fails to show objective neurologic abnormalities associated with the Veteran's lumbar spine disability. Therefore, the Board concludes that separate ratings for associated neurologic abnormalities are not warranted. For these reasons, the Board finds that the criteria for a rating in excess of 10 percent prior to October 6, 2009, for lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion have not been met. Period Since October 6, 2009 For the rating period since October 6, 2009, the Board concludes that a rating in excess of 40 percent is not warranted under the old or new rating criteria, including the criteria for evaluating IVDS. At an October 2009 VA examination, the Veteran reported back and leg pain, with the back pain being worse. He complained of stiffness, but denied weight loss, unsteady gait, fevers, chills, dizziness or visual disturbances. He complained of numbness in both legs proximally. He denied weakness, erectile dysfunction, and bowel or bladder incontinence. The Veteran reported a walking limitation of one quarter mile and a standing limitation of ten to 15 minutes. Flare-ups occurred approximately three days per month and were severe, lasting for hours to a full day. They were precipitated by prolonged sitting, standing or bending and were alleviated with rest and medication. The Veteran occasionally used a cane and frequently used a back brace. He had missed two days of work in the past year or two due to flare-ups of back pain. He reported that he had difficulty performing yard work and avoided any strenuous recreational activities due to back pain. He denied any incapacitating episodes in the past 12 months in which he was prescribed bed rest by a physician. Examination revealed that gait was normal and he had a normal shoe wear pattern. He had a well healed surgical incision in the lower lumbar spine. There was tenderness to palpation at the lower lumbar paraspinals and over the bilateral sacroiliac (SI) joints. Manual muscle testing was 5/5 in the bilateral lower extremities. Sensation was intact to light touch and muscle strength reflexes were 2+ bilaterally with downgoing Babinski responses. Lasegue's test was negative bilaterally. Range of motion testing revealed forward flexion to 30 degrees with pain throughout motion; extension to 20 degrees with pain from 10 to 20 degrees; lateral flexion and rotation to 20 degrees bilaterally with pain at end range of motion. On repetitive testing, there was no additional limitation due to painful motion, fatigue, weakness or incoordination and range of motion values were unchanged from baseline testing. As the Veteran was not having a flare-up, it would only be speculation for the examiner to report limitation during a flare. The Veteran was diagnosed with lumbar strain and lumbar degenerative disc disease and spinal stenosis status post surgical fusion. In response to the question of specifying neurological impairment associated with the service-connected lumbar strain, the examiner opined that neurological impairment did not occur with lumbar strain. The nerves affected by the degenerative disc disease were the bilateral L5 nerve roots. The Veteran did not have any paralysis of the L5 nerve roots. A letter from F.V., M.D. dated in May 2010 indicates that the Veteran had debilitating back pain limiting his abilities to perform routine activities of daily living. In March 2011, the Veteran complained of chronic back pain and parasthesia now associated with occasional bowel incontinence. A VA treatment record dated in May 2011 shows that the Veteran had back pain and spasms. He had decreased flexion with pain and decreased extension. Lateral rotation was decreased to the right/left 45 degrees with pain. He had 5/5 strength bilaterally to the lower extremities; no sensory loss; reflexes were 2+ and symmetric, and full lower extremity range of motion. Straight leg raise test was negative to 60 degrees bilaterally. The Veteran was afforded a VA examination in August 2011. He reported pain radiating mostly down his right leg but some on the left for the past three years. Range of motion testing revealed forward flexion to 25 degrees with pain at 15 degrees; extension to 10 degrees with pain at 5 degrees; lateral flexion to 15 degrees with pain at 10 degrees bilaterally; and lateral rotation to 30 degrees with pain at 25 degrees bilaterally. Following repetition, he had forward flexion to 25 degrees; extension to 10 degrees; lateral flexion to 15 degrees bilaterally; and lateral rotation to 30 degrees bilaterally. The examiner opined that the Veteran did not have additional limitation in range of motion following repetitive-use testing. The Veteran had functional loss and/or functional impairment after repetition due to less movement than normal, excess fatigability and pain on movement. He had localized tenderness or pain to palpation; and guarding or muscle spasm severe enough to result in abnormal gait and abnormal spinal contour. Muscle strength testing revealed strength of 5/5 throughout his bilateral lower extremities. He had no muscle atrophy. Deep tendon reflexes were 2+ and normal throughout his bilateral lower extremities. Sensory examination was also normal throughout his bilateral lower extremities. Straight leg raise testing was positive on the right and negative on the left. The Veteran had radicular pain or other signs or symptoms due to radiculopathy. He had severe constant pain of the right lower extremity and no constant pain of the left lower extremity; severe intermittent pain of the right lower extremity and mild intermittent pain of the left lower extremity; moderate paresthesias and/or dysesthesias of the right lower extremity and mild paresthesias and/or dysesthesias of the left lower extremity; and moderate numbness of the right lower extremity and no numbness of the left lower extremity. Both L4-L5 and S1-S3 sciatic nerve roots were involved. The examiner opined that the Veteran's right and left sides were not affected by radiculopathy. The Veteran had no other neurologic abnormalities. He had IVDS with incapacitating episodes totaling less than one week in the past 12 months. A brace and cane were used constantly. The Veteran had scars that were not painful and/or unstable and were not greater than 39 sq cm (6 sq inches). The Veteran was limping with his right leg in a forward sliding motion and had loss of normal lumbar lordosis. The examiner opined that the Veteran's back condition impacted his employment in that he could not lift more than a few pounds, bend, have heavy exertion, or stand, walk or sit for more than several minutes. However, it did not preclude limited or sedentary employment. The examiner also opined that the above-stated radicular symptoms were subjective in nature; there was no current objective evidence found on examination for any spinal radiculopathy. It was less likely as not that the Veteran's current bowel complaints and/or erectile dysfunction were caused or aggravated to any degree by his current service-connected lumbar spine condition. There was no current objective evidence found on examination that any of the Veteran's current reported erectile dysfunction and/or bowel symptoms were caused or aggravated to any degree by his current service-connected back condition. The current neurologic findings as well as the pathology demonstrated on imaging studies did not demonstrate pathology of the type and severity which the medical literature would support as a possible cause for the Veteran's current bowel complaints and/or erectile dysfunction. Neurologic testing dated in August 2011 shows that the Veteran had back pain and leg pain, right more involved than the left. The electrodiagnostic conclusion was that it was an abnormal study. Needle EMG findings did suggest some proximal nerve irritation. There were no obvious isolated mononeuropathy and no obvious significant polyneuropathy particularly noted. Private treatment records dated from October 2011 to May 2012 show continued treatment for the Veteran's back with complaints of pain and radicular symptoms. These records do not show that the Veteran had ankylosis of the lumbar spine or included any opinions indicating that any limitation of motion was tantamount to ankylosis. They also do not contain opinions indicating that the Veteran had associated objective neurologic abnormalities such as bowel or bladder impairment, erectile dysfunction or radiculopathy. Although the records show a diagnosis of radiculopathy, the Board observes that they repeatedly show that the Veteran had normal muscle strength of 5/5 as well as normal deep tendon reflexes of 2+throughout his bilateral lower extremities. At an August 2012 VA examination, the Veteran reported low back pain if he bent over; he denied other symptoms. The Veteran was not wearing a diaper; he had no real history of incontinence but claimed that he found subsequent residual slight "coloring" on toilet paper following bowel movements. He stated that back pain was constant; however, a treatment record in May 2012 indicated that the Veteran reported no back pain for the past two months. Regarding flare-ups, he had two visits to VA in January 2009 and May 2011 for change in medications. He stated that he went to his workplace clinics several times a month for pain. The Veteran reported that flare-ups impacted his function. He reported that pain was constant, every day and that he sought urgent medical attention for acute exacerbations in January 2009 and May 2011; otherwise, he took advantage of workplace clinics for free care several times a month. Range of motion testing revealed forward flexion to 75 degrees with no objective evidence of painful motion; extension to 20 degrees with pain at 20 degrees; right lateral flexion to 30 degrees with pain at 30 degrees; left lateral flexion to 20 degrees with no objective evidence of painful motion; and lateral rotation to 30 degrees with no objective evidence of painful motion bilaterally. Following repetition, he had forward flexion to 75 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 20 degrees; and lateral rotation to 30 degrees bilaterally. The Veteran did not have additional limitation in range of motion following repetitive-use testing. He had functional loss and/or functional impairment with less movement than normal and pain on movement. He had no localized tenderness or pain to palpation and no guarding or muscle spasm. Muscle strength was 5/5 throughout his bilateral lower extremities. He had no muscle atrophy. Deep tendon reflexes were normal and 2+ throughout his bilateral lower extremities. Sensory examination was normal throughout his bilateral lower extremities except for decreased sensation of his bilateral feet/toes. The Veteran reported subjective decrease to light touch/pin over bilateral feet and distal third of ankles-not proximally, not in a radicular distribution-not consistent with radiculopathy. The Veteran was started on medication for diabetes mellitus (not service connected and not related to the back condition) six months ago, which likely accounted for that distribution of peripheral subjective sensory change. Straight leg raise testing was negative bilaterally. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. The examiner noted that the Veteran reported that he had subjective referred pain in his legs and numbness in his feet, not in a radicular pattern, without any objective findings of radiculopathy on motor and reflex examinations. The Veteran did not have other neurologic abnormalities or findings related to the back condition. He had incapacitating episodes due to IVDS of less than one week over the past 12 months. He used a brace occasionally and a cane regularly. The Veteran had scars that were not painful and/or unstable or that were greater than 39 sq cm (6 sq inches). The examiner noted that during the examination, there were enough inconsistencies and behaviors suggesting symptom magnification that the reliability of certain results/responses/claims was highly doubtful in their opinion. The Veteran's subjective complaints during the examination appeared, to the examiner, out of proportion to objective examination findings. Initially, the Veteran assumed a kyphotic position with the trunk tilted far left, which lasted about a minute, but as the examination continued and he was distracted, that position was normalized and there was absolutely no evidence of kyphosis, scoliosis or lordosis. There was no ankylosis of the spine on examination. Motor and sensory examinations were normal, without muscle atrophy or objective evidence of bilateral lower extremity radiculopathy. There was no objective evidence of urinary or bowel incontinence on underwear, despite hours of driving to the examination place and waiting in the reception area. No muscle spasm was noted on examination. The Veteran was independent with dressing and undressing for the examination. Straight leg raise was negative on the right to 80 degrees and exhibited diffuse pain behavior on the left at 70 degrees without radiation into the limb, which was not indicative of a herniated disc. The Veteran's back condition impacted his ability to work. He worked for an outfit doing outreach to migrant farm workers. He unloaded things being donated and dropped off. He stated that he had difficulty picking up heavy loads. However, he stated that he started working for that organization in 2007 and was able to do the job when he was having worse pain before surgery in February 2012. The Veteran was also on workers compensation for his back condition. It was not known what percentage of his back symptoms was due to his service-connected cause and what part were due to occupational, post-separation activities. The Veteran was independent with self care, driving, and house chores, although he had a roommate who helped. Under the old criteria, a rating in excess of 40 percent based on limitation of motion is only warranted for unfavorable ankylosis of the lumbar spine or complete ankylosis of the spine. None of the records or examinations since October 6, 2009, have shown any type of ankylosis. The August 2012 examiner specifically found that there was no ankylosis. Therefore, a rating in excess of 40 percent under the old criteria is not warranted. A rating in excess of 40 percent under the new criteria requires also unfavorable ankylosis of the entire thoracolumbar spine for a 50 percent rating. As ankylosis has not been shown, a rating in excess of 40 percent under the new criteria is not warranted. The Board has also considered whether an increased rating is warranted under the different rating criteria for IVDS. Under the pre September 23, 2002, criteria, a higher rating of 60 percent was warranted for pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. The VA examinations and treatment records fail to show "pronounced" that IVDS. The evidence does not show demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc. As noted above, the Veteran was shown to have normal reflexes throughout his bilateral lower extremities of 2+, indicating that ankle jerk was not absent. Therefore, a rating in excess of 40 percent for IVDS under the pre September 23, 2002, criteria is not warranted. A rating in excess of 40 percent under the criteria in effect from September 23, 2002, to September 26, 2003, required incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. As discussed above, the August 2011 and August 2012 VA examiners indicated that the Veteran's incapacitating episodes were less than one week. Additionally, as discussed in detail below, the evidence does not show that the Veteran had neurologic abnormalities such as radiculopathy. Both VA examiners opined that the Veteran did not have objective neurologic abnormalities. Examinations repeatedly showed normal muscle strength and reflexes. As the evidence fails to show neurologic disabilities associated with the Veteran's IVDS, a rating in excess of 40 percent under the criteria in effect from September 23, 2002, to September 26, 2003, based on combining orthopedic and neurologic disabilities is not warranted. Therefore, the Board concludes that a rating in excess of 40 percent for IVDS under this set of criteria is not warranted. As for the current rating criteria, a rating in excess of 40 percent requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. In this case, the Veteran denied incapacitating episodes at the October 2009 VA examination. The August 2011 and August 2012 examinations both indicate that the Veteran's incapacitating episodes only lasted less than one week. Therefore, a rating in excess of 40 percent for IVDS under the current rating criteria is not warranted. After reviewing all of the evidence, the Board concludes that a rating in excess of 40 percent under all of the old and new criteria, including consideration of the Veteran's IVDS, is not warranted. In reaching this conclusion, the Board has considered whether the Veteran's painful motion contributes to the actual limitation of motion such that an increased rating is warranted. Here, even when taking into account the pain on use experienced by the Veteran, the Board finds that an increased rating under the old and new diagnostic codes use to evaluate lumbar spine disabilities based on limitation of motion is not warranted. See 38 C.F.R. § 4.40. The August 2011 and August 2012 VA examinations specifically indicated that the Veteran did not have muscle atrophy. Furthermore, functional impairment and limitation of motion following repetition was addressed in the VA examinations. Even taking into account the impairment shown on examination, the evidence fails to show that the Veteran's limited motion is tantamount to ankylosis. Accordingly, the criteria for a rating in excess of 40 percent have not been met. 38 C.F.R. § 4.71a, 5286, 5289 (2003); 38 C.F.R. § 4.71a, 5237 (2012). The Board has also considered whether separate ratings are warranted for any objective neurologic abnormalities associated with this disability during this time period. Although private treatment records show a diagnosis of radiculopathy, the VA examinations all indicate that the Veteran did not have objective evidence of lumbar radiculopathy. Such findings were well-supported by rationales. Furthermore, treatment records and examinations repeatedly showed normal muscle strength and reflexes. Objective evidence of neurologic abnormalities were not shown. In this regard, the Board acknowledges the August 2011 abnormal electrodiagnostic study. However, considering the repeated normal examination findings in both treatment records and VA examinations, the totality of the evidence fails to show objective lower extremity neurologic impairment. Additionally, although the Veteran has reported bowel dysfunction, the August 2011 and August 2012 VA examiners both opined that the Veteran did not have bowel dysfunction associated with his back condition. Those opinions were also supported by rationales. The August 2011 examiner also opined that the Veteran did not have erectile dysfunction associated with his back disability. The pertinent evidence fails to show objective neurologic abnormalities associated with the Veteran's lumbar spine disability. Therefore, the Board concludes that separate ratings for associated neurologic abnormalities are not warranted. Lastly, the Board has considered whether the Veteran's scar from surgery warrants a compensable rating. The Board notes amendments were made to the rating criteria for skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, because the Veteran's claim was pending before October 23, 2008, and because he did not elect to have this issue adjudicated under the new criteria, his claim will only be evaluated under the rating criteria in effect prior to that date. Id. In this case, the Veteran's scar was shown to be not painful and/or unstable or greater than 39 sq cm (6 sq inches) on VA examinations. The evidence does not show that his scar is deep or that it causes limitation of motion or function. Therefore, the Board concludes that a separate compensable rating for the Veteran's surgical scar is not warranted. See 38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7804, 7805 (2008). For these reasons, the Board finds that the criteria for a rating in excess of 40 since October 6, 2009, for lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion have not been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's lumbar spine symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's lumbar spine disability has resulted in interference with employment or activities of daily life which would a warrant rating in excess of 10 percent prior to October 6, 2009, and in excess of 40 percent from October 6, 2009, for this disability. Moreover, as the evidence does not show, nor does the Veteran contend, that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Indeed, during the course of this appeal Veteran has been shown to be gainfully employed when he was not incarcerated. Therefore, a claim for a total disability rating based on individual unemployability has not been raised. ORDER Entitlement to ratings in excess of 10 percent prior to October 6, 2009, and in excess of 40 percent from October 6, 2009 (other than during a period of temporary total disability from February 13, 2012, to April 1, 2012), for lumbar strain with degenerative disc disease and spinal stenosis, status post-surgical fusion is denied. REMAND In a March 2013 rating decision, the AMC assigned a temporary total (100 percent) evaluation effective February 13, 2012, for surgical treatment necessitating convalescence. According to the Veterans Appeals Control and Locator System (VACOLS), in April 2013, the Veteran submitted a notice of disagreement for that rating decision. The Board observes that no SOC has been issued as to the Veteran's claim. The claim must be remanded to allow the RO to provide the Veteran with an SOC on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, the issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: Provide the Veteran with a statement of the case as to the issue of entitlement to an earlier effective date for the temporary total (100 percent) evaluation for surgical treatment necessitating convalescence. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. ______________________________ L. HOWELL Veterans Law Judge Board of Veterans' Appeals ______________________________ ROBERT E. SULLIVAN Veterans Law Judge Board of Veterans' Appeals ______________________________ DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs