Citation Nr: 1319310 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 03-23 780 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an increased rating for degenerative osteoarthritis of the lumbosacral spine and chronic sacroiliac strain superimposed on multi-level degenerative disc disease and herniated discs, currently rated as 40 percent disabling. 2. Entitlement to a separate rating for left lower extremity neuropathy. 3. Entitlement to a separate rating for right lower extremity neuropathy. 4. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran testified at a hearing before the Board in December 2004. A transcript of the hearing testimony is associated with the claims file. The Veterans Law Judge who conducted that hearing has retired. The Veteran was offered, but declined, an additional hearing before Board. In February 2005, the Board denied the Veteran's appeal regarding an increased rating for his service-connected disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in August 2006, the Court vacated the Board's decision pursuant to a Joint Motion for Remand and remanded the case for additional reasons and bases. In a February 2009 order, the Court vacated the Board's December 2007 decision and remanded the matter for readjudication in light of the Joint Motion. In April 2007, the Board again denied the Veteran's claim, and he appealed the Board's decision to the Court. In November 2007, the Court vacated the Board's decision and remanded the matter for further appellate proceedings. In a January 2008 decision, the Board again denied the Veteran's claim. He appealed this decision to the Court and, in December 2008, the Court vacated the Board's decision and remanded the claim to the Board. In September 2009 and July 2011, the Board remanded the Veteran's claim for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012); 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to separate ratings for peripheral neuropathy of the bilateral lower extremities and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO for additional development. FINDING OF FACT Throughout the rating period on appeal, the Veteran's low back disability has been manifested by limitation of motion with complaints of pain and occasional numbness which radiates into the bilateral lower extremities. Muscle spasms and absent ankle reflexes have been demonstrated and the Veteran has reported that medication provides little intermittent relief. CONCLUSION OF LAW The criteria for a 60 percent rating for the service-connected spine disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5294, 5295 (as in effect prior to September 23, 2002); Diagnostic Codes 5292, 5293, 5294, 5295 (as in effect from September 23, 2002 through September 25, 2003), Diagnostic Code 5239, 5242, 5243 (as in effect from September 26, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the present case, VA issued a VCAA notice letter to the Veteran in August 2004. This letter informed the Veteran of what evidence was required to substantiate his increased rating claim and of his and VA's respective duties for obtaining evidence. An October 2009 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. As VCAA notice was not completed prior to the initial AOJ adjudication of the claims, such notice was not compliant with Pelegrini. However, since the case was readjudicated thereafter, there has been no prejudice to the Veteran in this regard. See Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006). In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In this capacity, as noted in the Introduction, the Board remanded the Veteran's claims for additional development in September 2009 and July 2011. Specifically, in September 2009 the Board remanded the Veteran's claim in order to schedule the Veteran for a VA examination. His claim was remanded in July 2011 for the RO to issue a supplemental statement of the case. The record reflects that the Veteran was afforded an additional VA examination in October 2009 and a SSOC was issued in March 2013. Thus, the Board's remand instructions have been fully complied with. See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Further, the record contains the Veteran's service treatment records, VA outpatient medical records, VA examination reports and private medical statements. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. As the Board will discuss in its analysis, the Veteran was provided with VA examinations in June 2001, August 2004, and October 2009. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations and rendered appropriate diagnoses consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). While the record does not reflect that the June 2001 or August 2004 VA examiners reviewed the Veteran's claims file, he is not prejudiced thereby as the examiners considered medical history as reported by the Veteran which is consistent with that contained in his claims file. The Board therefore concludes that the examinations are adequate for rating purposes. See 38 C.F.R. § 4.2 (2012). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He exercised the option of a personal hearing and was afforded one in December 2004 as detailed in the Introduction. During the hearing, a Veterans Law Judge (VLJ) clarified the issue on appeal, and attempted to identify any missing records. While the VLJ did not explain what the evidence must show to establish an increased rating, the Veteran demonstrated actual knowledge of what the evidence must show when he testified that his disability was worse than currently rated. See the hearing transcript, page 6. Moreover, the Veteran was informed of what the evidence must show in an October 2009 notice letter mailed after the Veteran's hearing. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. The Joint Motions As noted in the Introduction, this case has been the subject of multiple Joint Motions for Remand. The Veteran's claim for an increased rating for sacroiliac strain was originally denied by the Board in a February 2005 decision. In an August 2006 Joint Motion for Remand, the parties agreed that "the Board did not consider all the material evidence of record and therefore [did not] provide adequate reasons and bases for its conclusion that [the Veteran] was not entitled to" an increased rating. Specifically, the parties observed that in discussing whether the Veteran was "entitled to a 60 percent evaluation under Diagnostic Code 5293 (intervertebral disc syndrome) the Board" stated that the medical evidence showed "none of the absent ankle jerk [or] other neurological findings appropriate to the site of a diseased disk." See the Joint Motion, page 3. The parties then cited to evidence contained in the claims file which demonstrated absent ankle jerk and neurological findings appropriate to the site of a diseased disc. In the August 2006 Joint Motion, the parties also stated that the Board failed to consider "evidence of bilateral symptomatology from the VA treatment records where [the Veteran] complained of worsening symptoms going from intermittent to persistent (daily with no relief) in both legs." See the Joint Motion, page 5. Following the August 2006 Joint Motion for Remand, the Veteran's claim was denied by the Board in April 2007. In this decision, the Board stated: [T]he veteran is not, in fact, service-connected for lumbar pathology. Rather, he is very specifically service-connected for sacro-iliac strain. Nonetheless, the Board is mindful that the provisions of 38 C.F.R. § 4.66 emphasize that the lumbosacral and sacro-iliac joints should be considered as one anatomical segment for purposes of rating arthritis. Moreover, with sacro-iliac joint involvement there should be careful consideration of lumbosacral sprain and the various symptoms of pain and paralysis attributable to disease affective the lumbar vertebrae and intervertebral disc. However, in this case, service-connection for lumbosacral spine pathology has been expressly denied. Equally important, there is no competent evidence demonstrating disc pathology of the sacro-iliac spine. As such, the provisions regarding intervertebral disc syndrome or any symptoms associated therewith, including DC 5293 under the pre-amended regulations, and DC 5243 under the amended regulations, while previously considered by the Board, are not, in fact, applicable to the veteran's claim for an increased rating for a service-connected sacro-iliac disability. See the April 2007 Board Decision, pages 5-6. In addressing the neurological evidence that was identified by the parties in the August 2006 Joint Motion for Remand, the Board noted that: A reasonable reading of the evidence is that the veteran's symptoms associated with sciatica, such as numbness, tingling, weakness, and muscle spasms, are related to a nonservice-connected lumbar spine disorder and not to his service-connected sacro-iliac disability. The Board again emphasizes that service connection for lumbar pathology was denied by the RO and by the Board. Th[ose] decisions are final. Id, at 8. In the subsequent October 2007 Joint Motion for remand, the parties stated that while the Board mentioned 38 C.F.R. § 4.66 - which provides that the lumbosacral and sacroiliac joints should be considered as one anatomical segment for rating purposes - "it failed to adequately consider and discuss this 'potentially applicable' regulation." See the October 2007 Joint Motion, page 6. In discussing the Board's determination that the Veteran was not service-connected for a lumbar spine disability, the parties observed that the Veteran's sacroiliac strain is currently rated under Diagnostic Codes 5292 and 5294, which govern limitation of motion of the lumbar spine. As a result, the Joint Motion stated that the Board's "failure to consider the rating criteria for intervertebral disc syndrome because the [Veteran] is not service-connected for 'lumbar pathology,' appears, at best, arbitrary." Id. The October 2007 Joint Motion concluded that "[o]n remand, the Board should address whether an increased rating is warranted for the [Veteran's] sacroiliac strain under the diagnostic criteria for intervertebral disc syndrome, or consider whether a separate rating for neurological manifestations is warranted under Note (1) [of] the General Rating Formula for Diseases and Injuries of the Spine." In January 2008, the Board again denied the Veteran's claim. The Veteran appealed the Board's decision and, pursuant to a Joint Motion for Remand, the Board's decision was vacated by the Court in December 2008. In this December 2008 Joint Motion, the parties observed that the Board's recent decision had repeated the above-quoted three paragraphs from its April 2007 decision and held: The provisions regarding intervertebral disc syndrome or any symptoms associated therewith, including [Diagnostic Code] 5293 under the pre-amended regulations and [Diagnostic Code] 5243 under the amended regulations, while previously considered by the Board, are not, in fact, applicable to the [V]eteran's claim for an increased rating for a service-connected sacro-iliac disability. The parties stated that "the question is not, as the Board states, whether [the Veteran] is 'service-connected for lumbar pathology.' The issue in question is the manner in which [the Veteran's] sacroiliac condition should be rated." The Joint Motion reported that the parties had previously agreed that the Board did not adequately consider Diagnostic Code 5293 in its prior decisions, and the prior Joint Motion "required the Board to adequately address the neurological evidence of record, and to provide additional reasons or bases as to whether [the Veteran's] symptomatology more nearly approximates the criteria for [a] 60 percent rating under 38 C.F.R. § 4.71a [Diagnostic Code] 5293." As a result, the parties stated that "the Board must determine whether [the Veteran's] symptomatology more nearly approximates the 60 percent rating under 38 C.F.R. § 4.71a [Diagnostic Code] 5293 (of the pre-amended regulations), and must provide an adequate statement of reasons or bases for its conclusion." The Board was also reminded of "VA's regulatory command that 'the lumbosacral and sacroiliac joints should be considered as one anatomical segment for rating purposes." See the Joint Motion, page 6. In short, while the Board has repeatedly found that the Veteran's neurological symptomatology is attributable to his non service-connected lumbar spine disability and that Diagnostic Codes 5293 under the pre-amended regulations and Diagnostic Code 5243 under the amended regulations are not for application, the parties have agreed that this is not the case. In doing so, the Joint Motions for Remand have essentially granted service connection for a non service-connected disability. As noted, the parties have agreed that the Veteran's neurological symptomatology should be associated with his service-connected disability. The Board is bound by this agreement. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." In this capacity, as alluded to on the title page, the Board has attributed the Veteran's neurological symptomatology with his service-connected disability. III. Law and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet.App. 505 (2007). The Veteran filed his claim in April 2001. During the pendency of this case, the applicable rating criteria for the spine, found at 38 C.F.R. § 4.71a, were amended twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454-58 (Aug. 27, 2003). The Veteran has been provided with the old and new regulatory criteria in an October 2004 supplemental statement of the case. Therefore, there is no prejudice to the Veteran in the Board adjudicating the claim. Cf. Bernard v. Brown, 4 Vet.App. 384 (1993). Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the Veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the Veteran's service-connected spine disability under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 1991); 38 C.F.R. § 3.114 (2002); VAOPGCPREC 3-2000; Green v. Brown, 10 Vet.App. 111, 117 (1997). The Veteran's lumbosacral spine disability is currently rated under former Diagnostic Codes 5294-5292. (Sacro-iliac injury and weakness - Spine, limitation of motion, lumbar). Pursuant to the Joint Motions for Remand, the Board will also rate the Veteran's disability under former Diagnostic Code 5293 (Intervertebral disc syndrome). Under the former ratings criteria, disabilities of the sacroiliac were rated under Diagnostic Code 5294 (sacroiliac injury and weakness), which in turn referred to the criteria for rating lumbosacral strain under Diagnostic Code 5295. The former Diagnostic Code 5295 provided that a rating of 10 percent was warranted with characteristic pain on motion. A rating of 20 percent was warranted with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in standing position. A rating of 40 percent was warranted for severe disability with listing of the entire spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Under the former Diagnostic Code 5292 (Spine, limitation of motion of, lumbar), a rating of 10 percent was warranted for slight limitation of motion of the lumbar spine. A 20 percent was applicable if the limitation of motion of the lumbar spine was moderate. A 40 percent was applicable if the limitation of motion of the lumbar spine was severe. For a rating in excess of 40 percent to be granted for lumbar spine impairment on a schedular basis, there must have been unfavorable ankylosis (complete bony fixation). Under the former Diagnostic Code 5293 (intervertebral disc syndrome), a 60 percent rating is for application when there is pronounced intervertebral disc syndrome evidenced by 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, little intermittent relief. A 40 percent rating is for application when there is severe intervertebral disc syndrome as evidenced by recurring attacks with intermittent relief. A 20 percent rating is for application when there are moderate, recurring attacks. Effective on September 23, 2002, the diagnostic criteria for intervertebral disc syndrome under Diagnostic Code 5293 underwent revision. As revised, prior to September 26, 2003, Diagnostic Code 5293 states that intervertebral disc syndrome is to be evaluated either based on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 the separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under Diagnostic Code 5293, as in effect from September 23, 2002 through September 25, 2003, the next-higher 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent disability rating is warranted where the evidence reveals incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to the revised version of Diagnostic Code 5293 defines an "incapacitating episode" 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." "Chronic orthopedic and neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so." The rating criteria for Diagnostic Code 5292, 5294 and 5295 from September 23, 2002 through September 25, 2003, are identical as the criteria in effect prior to September 23, 2002. Effective on September 26, 2003, the General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease the following ratings will apply. This formula encompasses intervertebral disc syndrome. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Note (1): For purposes of evaluations under diagnostic code 5243, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective from September 26, 2003). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2012). The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet.App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the ones used by the RO. See Tedeschi v. Brown, 7 Vet.App. 411, 414 (1995). Since the Veteran's service-connected lumbar spine disability includes a limited range of motion, Diagnostic Code 5292 is applicable. As the Veteran was diagnosed with sacroiliac injury with weakness during the June 2001 VA examination, Diagnostic Codes 5294 and 5295 are also for application. The Board notes, however, that these diagnostic codes do not allow for a schedular rating in excess of 40 percent, which is the disability rating that is currently assigned. As discussed in the Joint Motion section above, the parties have agreed that the Veteran has been experiencing neurological symptoms appropriate to the site of a diseased disk. As a result, the Board will apply Diagnostic Code 5293 (Intervertebral disc syndrome). The schedular criteria for Diagnostic Codes 5292, 5294 and 5295 from September 23, 2002 through September 25, 2003, are the same as the criteria in effect prior to September 23, 2002. Accordingly, these codes remain applicable. With respect to intervertebral disc syndrome; while the evidence of record does not indicate that incapacitating episodes as defined by the revised schedular criteria are present, the Board will continue to rate the Veteran under Diagnostic Code 5293 in order to combine, under 38 C.F.R. § 4.25, the separate evaluations of the Veteran's chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With respect to the current schedular criteria, all lumbar spine disabilities are rated using the same criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). However intervertebral disc syndrome may be rated under either the general rating formula or based on incapacitating episodes. While the Veteran experiences neurological symptoms which radiate to his lower extremities, there is no indication that he has been proscribed bed rest by a physician during the appeal period. In fact, the October 2009 VA examiner specifically stated that the Veteran does not experience incapacitating episodes. Accordingly, rating the Veteran's disability under Diagnostic Code 5293 [Intervertebral disc syndrome] based on incapacitating episodes would not be of benefit to the Veteran. The criteria for rating intervertebral disc syndrome under current Diagnostic Code 5243 based on incapacitating episodes are therefore not for application. IV. Analysis The Veteran seeks a disability rating in excess of 40 percent for his service-connected spine disability. As discussed, the applicable rating criteria were amended twice during the appeal period. A. The former schedular criteria - effective prior to September 23, 2002 The service-connected lumbosacral spine disability is currently assigned a 40 percent rating under the former Diagnostic Codes 5294-5292. A 40 percent rating is the maximum schedular rating available under Diagnostic Codes 5292, 5294 and 5295. In order to warrant a disability rating in excess of 40 percent based on limitation of motion, there must be ankylosis. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet.App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. While cognizant that the Veteran stated that his forward motion would "seem to freeze" in a July 2005 statement, the record does not indicate that ankylosis exists or has been approximated. For example, during the October 2009 VA examination, the Veteran demonstrated 45 degrees of forward flexion and repetitive motion did not result in any additional functional limitations. As the Veteran has remained able to move his back joint, by definition, his spine is not immobile. Therefore, ankylosis has not been shown. The Board will now consider whether Diagnostic Code 5293 provides a basis for a disability rating in excess of 40 percent. As noted, under Diagnostic Code 5293, as it existed prior to September 23, 2002, a 60 percent evaluation is for application when there is pronounced intervertebral disc syndrome evidenced by 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 with little intermittent relief. With respect to the Veteran's neurological symptoms, during the June 2001 VA examination, the Veteran reported that he experiences back pain that "can and frequently does go down to his left leg all the way to his knee." He reported that he will take Tylenol as needed and he does "not allow his back problems to interfere with anything he wants to do." The Board notes in passing that the July 2011 VA examiner stated that the Veteran would be sent to a neurologist based on his history of sciatic pain. Upon review, however, the record does not indicate that a separate neurological evaluation was conducted. A VA treatment record from September 2001 documented the Veteran's complaints of low back pain which radiates into his left leg and toes. He also reported "intermittent numbness in this distribution." A separate September 2001 treatment record from the same date and same VA physician documented that the Veteran had diminished muscle strength in both his ankles, knees and in his left hip. Abnormal deep tendon reflexes were also noted in both lower extremities. In May 2003, the Veteran complained of low back pain which radiates down both of his extremities and causes difficulty walking. A separate May 2003 VA treatment record documented that the Veteran reported intermittent fatigue in his legs which is unrelated to walking. In a June 2003 VA nursing note, the Veteran reported ongoing back pain that was 4/10 on a scale of 1-10 with 10 being worse. It was noted that his pain radiated from his lower back into his legs. While the Veteran complained that his pain caused him to be dizzy and weak, medication had helped "a little." Similarly, in July 2003, the Veteran reported "constant low back pain with radiation into the left lower extremity always to the lateral mid thigh [and] intermittently to the ankle with intermittent numbness in the same distribution." During an August 2004 VA examination, the Veteran described daily symptoms of pain with a constant dull ache and stiffness. It was noted that he has "numbness and . . . sharp pain going down from the left side of his lumbosacral spine all the way down to the little toes and sometimes the big toe." A physical examination revealed paraspinal muscular spasm, loss of muscle strength in both lower extremities and that his reflexes were absent. During the December 2004 hearing, the Veteran testified that he experiences numbness that radiates from his low back, down his buttocks, through his legs and sometimes to his right foot. He stated that while he has constant pain, he experiences numbness approximately 40 percent of the time. The Veteran also testified that he has occasional relief of his symptoms with Acetaminophen. During the October 2009 VA examination, the Veteran reported that his symptoms consisted of "a dull ache to sharp pain with stiffness of the spine [which] varies in intensity with activities." It was noted that the Veteran takes between 120-200 tablets of acetaminophen a month but his "condition is constant." A physical examination revealed "acute muscle spasm pain" which "lasted less than a minute and limited movement during that period of time, then resolved." His deep tendon reflexes were normal, there was no muscle atrophy however he demonstrated diminished muscle strength of the ankle dorsiflexors. Based on the above, the Board finds that the criteria for a 60 percent disability rating have been met. Specifically, the record indicates that the Veteran experiences persistent pain and occasional numbness which radiates from his service-connected spine into his lower extremities. Muscle spasms were demonstrated during the October 2004 and October 2009 VA examinations and the Veteran's ankle reflexes were abnormal in September 2001 and absent during the October 2004 VA examination. The June 2003 VA treatment record noted that medication helped "a little" and the Veteran testified during the December 2004 hearing that he had occasional relief with medication. The 60 percent disability rating the Board is assigning under Diagnostic Code 5293 is the maximum rating available under the former schedular criteria. B. The criteria from September 23, 2002 through September 25, 2003 Effective on September 23, 2002, the diagnostic criteria for intervertebral disc syndrome under Diagnostic Code 5293 underwent revision. As revised, prior to September 26, 2003, Diagnostic Code 5293 stated that intervertebral disc syndrome is to be evaluated either based on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 the separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The evidence does not establish incapacitating episodes as defined by Note (1) to Diagnostic Code 5293. As such, the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 through September 25, 2003, cannot serve as a basis for an increased rating on the basis of incapacitating episodes. In any event, the revised Diagnostic Code 5293 does not provide for a disability rating in excess of the 60 percent the Board has assigned. Under the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 through September 25, 2003, the Board must also consider whether separate evaluations for chronic orthopedic and neurologic manifestations of the Veteran's service-connected back disability, when combined under 38 C.F.R. § 4.25 with evaluations for all of his other disabilities, results in a higher combined disability rating. As discussed above, the Veteran was assigned a 40 percent disability rating based on chronic orthopedic manifestations of his low back disability. Specifically, a 40 percent rating was warranted under Diagnostic Codes 5292 based on limitation of motion and Diagnostic Code 5295 based on lumbosacral strain. With respect to the neurological manifestations, the Veteran has not been granted service connection for separate neurological manifestations of his spine disability. As discussed below, the Board is remanding the issues of entitlement to separate ratings for neuropathy of the bilateral lower extremities for additional development. Combining the 40 percent rating assigned for the Veteran's orthopedic manifestations with the separate neurological evaluations will not result in a disability rating in excess of 60 percent. Thus, the Board finds that the Veteran is not entitled to a disability rating in excess of the 60 percent previously assigned under revised version of Diagnostic Code 5293 (as in effect from September 23, 2002 through September 25, 2003). C. The current schedular criteria - effective from September 26, 2003 The orthopedic manifestations of the Veteran's spine disability are rated as 40 percent disabling. To obtain a higher disability rating of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran would have to demonstrate unfavorable ankylosis of the entire thoracolumbar spine. As discussed above, this has not been demonstrated. The current schedular criteria instruct to evaluate any associated objective neurological abnormalities separately under an appropriate diagnostic code. As discussed above, the Board has determined that separate 10 percent disability ratings are warranted for the sciatic neuropathy of the Veteran's lower extremities. However, to rate the Veteran's orthopedic and neurological manifestations separately would result in a 50 percent combined disability rating, as discussed above. Accordingly, the 60 percent disability rating assigned under the former regulations is more favorable to the Veteran. D. DeLuca Considerations With respect to the provisions of 38 C.F.R. §§ 4.40 and 4.45, in Johnston v. Brown, 10 Vet.App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. In the instant case, the Veteran is receiving the maximum rating allowable under the current General Rating Formula for Diseases and Injuries of the Spine, absent ankylosis. Moreover, as noted above, ankylosis has not been met or approximated, even when considering any functional impairment due symptoms such as pain, weakness or fatigability. Accordingly, 38 C.F.R. § 4.40 and § 4.45 are not for consideration. E. Extraschedular Considerations Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993). Under Thun v. Peake, 22 Vet.App. 111 (2008) aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the record indicates that in addition to his decreased range of motion, radicular symptoms and back pain, the Veteran has reported that he will become dizzy. As the ratings criteria do not address dizziness, the Board finds that the first Thun element has been met. Nevertheless, the Board notes that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1). In this case, there is no indication that the Veteran has required frequent hospitalizations for his service-connected spine disability. With respect to employment, the evidence of record indicates that the Veteran is currently retired after working for 20-30 years. See the October 2009 VA examination report. While the examination report indicates that the Veteran avoided lifting or carrying activities due to his low back condition, there is no indication that the Veteran's spine disability caused him any unusual employment impairment. The Board notes that the fact that the Veteran is currently unemployed is not determinative. The ultimate question is whether the Veteran, because of his service-connected disability, is incapable of performing the physical and mental acts required by employment. See Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). In this case there is no competent and credible evidence that the Veteran's spine disability would have marked interference with employment. See Van Hoose, supra [noting that the disability rating itself is recognition that industrial capabilities are impaired]. In addition, there is no evidence in the record of an exceptional or unusual clinical picture, or of any other reason why an extraschedular rating should be assigned. The Board therefore has determined that referral of the case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER An increased rating of 60 percent for the service-connected lumbosacral spine disability is granted, throughout the appeal period, subject to controlling regulations applicable to the payment of monetary benefits. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the remaining issues must be remanded for further development. As discussed in detail above, the Veteran is experiencing neurological symptomatology that has been attributed to his service-connected spine disability. Further, while the June 2001 VA examiner indicated that the Veteran was going to be evaluated by a neurologist based on his history of sciatic pain, the record does not indicate that this occurred. Accordingly, on remand, the Veteran should be afforded a VA examination to determine the extent of his neurological complications. Finally, the Veteran's TDIU claim should be readjudicated in light of the Board's grant of a 60 percent disability rating for his lumbar spine disability. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, this issue is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take appropriate steps to contact the Veteran and request that he provide information referable to all VA and non-VA treatment he has received for his claimed disabilities since September 2010. After securing any necessary authorization for release of information, the RO should obtain copies of any outstanding records from any identified health care provider. 2. Then, the RO then should have the Veteran scheduled for a VA examination to determine the nature of his peripheral neuropathy of his bilateral lower extremities. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard. The examiner should elicit from the Veteran and record a complete medical history and identify detailed clinical findings to permit the evaluation of the service-connected peripheral neuropathy in terms of the applicable rating criteria. 3. After undertaking any additional development it deems to be appropriate, VBA should readjudicate the Veteran's claim of entitlement to TDIU and the issues of entitlement to a separate rating for neuropathy of the bilateral lower extremities. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs