Citation Nr: 1319337 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-15 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased evaluation (rating) for lumbosacral strain with degenerative changes and intervertebral disc syndrome (IVDS), rated as 10 percent disabling prior to November 4, 2010 and 20 percent disabling from November 4, 2010 forward. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from December 1975 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which reduced the disability rating for the back disability from 20 percent to 10 percent effective October 4, 2007. The Board has reviewed the physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In the May 2008 rating decision, the RO explained that, because the rating reduction for the Veteran's back disability did not result in a reduction of overall compensation payments, a proposal for the rating reduction was not necessary and the reduction would be implemented immediately. Upon review, the Board notes that the Veteran's combined disabilities have been compensated at the 100 percent rate throughout the rating period; therefore, the provisions of 38 C.F.R. § 3.105(e) are not applicable in this case, and reduction of the rating was proper. See Stelzel v. Mansfield, 508 F.3d 1345, 1347 (Fed. Cir. 2007) (holding that the provisions of § 3.105(e) did not apply where the overall compensation paid to the veteran is not reduced). In the March 2011 rating decision, the RO granted an increased evaluation of 20 percent effective November 4, 2010 for the Veteran's back disability. Despite the partial increase awarded by the RO, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable for the back disability. See A.B. v. Brown, 6 Vet. App. 35 (1993). During the course of this appeal, the Veteran requested a Decision Review Officer (DRO) hearing, as well as a Board hearing; however, after being notified of the scheduled hearings, the Veteran failed to report and did not request postponement. See the March 2011 and August 2011 letters from the RO. In consideration of the foregoing, the hearing requests are deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. For the portion of the rating period prior to April 14, 2009, the Veteran's back disability is manifested by forward flexion of 70 degrees, a combined range of motion of 160 degrees, and muscle spasm that does not result in abnormal gait or abnormal spinal contour; no incapacitating episodes or ankylosis is shown. 2. For the portion of the rating period from April 14, 2009 to November 3, 2010, the Veteran's back disability is manifested by back pain and incapacitating episodes during flare-ups with a total duration of three weeks (3) during the past twelve months; there is no ankylosis of the thoracolumbar spine. 3. For the portion of the rating period from November 4, 2010, the Veteran's back disability is manifested by forward flexion of 40 degrees, a combined range of motion of 145 degrees, back tenderness not resulting an abnormal gait or abnormal spinal contour, and incapacitating episodes due to back pain of a duration of fifteen (15) days in the past 12 months; there is no ankylosis of the thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the Veteran's service-connected back disability have not been met or approximated for the portion of the rating period prior to April 14, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2012). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a 20 percent evaluation for the Veteran's service-connected back disability have been met from April 14, 2009 to November 3, 2010 based on incapacitating episodes. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.7, 4.71a, DC 5243 (2012). 3. The criteria for an evaluation in excess of 20 percent for the Veteran's service-connected back disability have not been met or approximated for the portion of the rating period from November 4, 2010 forward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.7, 4.71a, DC 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental statement of the case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In an August 2007 notice letter sent prior to the initial denial of the increased rating claim, the RO advised the Veteran that he may submit evidence showing that the service-connected back disability had increased in severity, and described the types of information and evidence that he should submit in support of the claim. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of the increased rating claim. The RO further explained how VA determines the disability rating and the effective date. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the RO afforded the Veteran with medical examinations in connection with the claim in October 2007 and November 2010. Collectively, the medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal. The medical examiners took a thorough history of the disabilities from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment. The medical examiners had adequate facts and data regarding the history and condition of the disability. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The medical examiners also considered the Veteran's subjective complaints as it related to current symptomatology and its effects on his daily life and performed a thorough physical evaluation of the Veteran. There is no indication of a material change in the back condition since the November 2010 QTC medical examination. The Veteran has not submitted any statement indicating that the back condition has worsened. The April 2011 VA Form 646 submitted by his representative does not provide any statement that the condition has worsened. In the May 2013 Informal Hearing Presentation, the Veteran's representative states that the Veteran is seeking an increased rating and that he essentially contends that his back disability is more severe than is contemplated by the assigned 20 percent rating. The representative does not indicate any change in the back condition since the November 2010 examination and does not provide any indication of increased symptoms. For these reasons, the Board finds that the collective medical examination reports are adequate for deciding the Veteran's increased rating claim, and there is no need for further medical examination. Post-service treatment records adequately identified as relevant to the appeal have been obtained and are associated with the record. There are no additional treatment records found in the Veteran's Virtual VA folder, which includes duplicate copies of the QTC medical examination reports. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability Evaluation Disability Evaluation Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability Rating Analysis The Veteran's service-connected back disability is rated at 10 percent prior to November 4, 2010 and rated at 20 percent from November 4, 2010 under DC 5237 for lumbosacral strain; however, in light of the October 2007 QTC medical examiner's finding that the Veteran's lumbosacral strain with degenerative changes had progressed to IVDS at L5 and S1, and the RO's inclusion of the diagnosis when as part of the grant of service connection for the back disability, the Board finds that the service-connected back disability is more appropriately evaluated under DC 5243 for IVDS. Butts v. Brown, 5 Vet. App. 532, 538 (1993). Under the rating schedule, the Veteran's IVDS (preoperatively or postoperatively) is to be evaluated either under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. Evaluation Based On Incapacitating Episodes In regard to the first method of evaluation (total duration of incapacitating episodes over the past 12 months), the rating criteria provide that a 10 percent evaluation is warranted if intervertebral disc syndrome is manifested by 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 5243. A 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. 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. Id. The term "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." 38 C.F.R. § 4.71a, DC 5243, Note (1). For the portion of the rating period prior to November 4, 2010 At the October 2007 QTC medical examination, the Veteran specifically stated that he was not receiving any treatment for the back and that the back condition did not cause incapacitation. Treatment records throughout this portion of the rating period show no periods of incapacitation due to the back disability. The Board observes, however, that the Veteran's treating physician wrote, in a letter dated April 14, 2009, that the Veteran had missed work due to recurrent back pain. The same day, the treating physician also completed a form entitled Certification of Health Care Provider for Employee's Serious Health Condition on behalf of the Veteran for the purpose of obtaining approval for protections under the Family and Medical Leave Act (FMLA). The physician wrote that he had treated the Veteran in September 2008, November 2008, December 2008, and January 2009, and checked "Yes" when asked if the Veteran would be incapacitated for a single continuous period of time due to his medical condition. When asked to estimate the beginning and ending period of incapacity, the physician wrote that the Veteran would require "several days of rest at home" when he experienced back pain. The physician checked "Yes" when asked if the condition would cause episodic flare-ups periodically preventing the Veteran from performing his job functions, and checked "Yes" when asked if it was medically necessary for the Veteran to be absent from work during the flare-ups. The physician estimated that the flare-ups of back pain and the duration of the related incapacity that the Veteran may have over the next six months would be once every four months for a duration of seven days per episode. Based on the physician's estimation, the Veteran experienced incapacitating episodes due to the service-connected back disability for approximately three weeks during a twelve month period. The Board recognizes that the physician does not specifically state that the Veteran would require "bed" rest, and there are no treatment records that specifically show that bed rest was prescribed; however, the physician stated that the Veteran required rest at home when he experienced flare-ups of back pain and provided an estimation for the duration of related incapacity during flare-ups. The Board finds the evidence to be sufficient to show that the Veteran experienced "incapacitating episodes" as contemplated by the rating schedule. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 20 percent schedular rating for the Veteran's back disability based on incapacitating episodes have been met as of April 14, 2009, and an increased rating is warranted from said date; however, prior to April 14, 2009, the Veteran's back disability does not meet the criteria for an increased rating based on incapacitating episodes because no prescribed bed rest is shown for the period. Thus, no increased rating is warranted for that portion of the rating period. For the portion of the rating period from November 4, 2010 At the November 2010 QTC medical examination, the Veteran told the examiner that he had missed work ten to fifteen days that year because of back pain. He also reported that, in the past twelve months, the back condition had resulted in bed rest ordered by his treating physician for two to three days in March 2010 and April 2010. Although there are no treatment records reflecting prescribed bedrest for the Veteran in 2010 included in the record, the Veteran is competent to report having missed work and having been prescribed bed rest to treat his back disability, and the Board finds the account credible, particularly in light of the previously discussed April 2009 letter from the physician reflecting missed days of work due to back pain and the April 2009 certification form completed by the physician reflecting that the Veteran requires rest at home during flare-ups of back pain. As reported by the Veteran at the November 2010 QTC medical examination, the Veteran had incapacitating episodes related to back pain for a period of six days over the past 12 months; however, he also reported that he had missed ten to fifteen days of work that year because of back pain. Resolving reasonable doubt in favor of the Veteran, the Board finds that the duration of incapacitating episodes for the Veteran's back disability over the past twelve months was fifteen days. The schedular criteria provide for a 20 percent schedular rating when the incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; therefore, because the Veteran is already in receipt of a 20 percent rating for this portion of the rating period, the Board finds that an increased rating based on incapacitating episodes is not warranted. Evaluation Based On the General Rating Formula for Spine Disabilities In regard to the second method of evaluation (General Rating Formula for Diseases and Injuries of the Spine), a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Also, any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. For the portion of the rating period prior to November 4, 2010 The evidence relevant to the portion of the rating period prior to November 4, 2010 shows that the Veteran's back disability more closely approximates the criteria for the currently assigned 10 percent rating. When the Veteran underwent medical examination in October 2007, the QTC medical examiner noted that muscle spasm was present on examination, and the Veteran's gait and posture were within normal limits. Thus, the Veteran's muscle spasm did not result in abnormal gait or abnormal spinal contour, which is consistent with the current 10 percent rating. Also, the Veteran was able to perform forward flexion to 70 degrees, with pain at 70 degrees, and had a combined range of motion of 160 degrees, even after repetitive use and in consideration of Deluca factors. This evidence also shows that the limitation of motion due to the Veteran's back disability meets the criteria for the currently assigned 10 percent schedular rating. There is no evidence of vertebral body fracture with loss of 50 percent or more of the height. The relevant treatment records include no findings contrary to those included in the QTC medical examination report, and there is no evidence of ankylosis of the thoracolumbar spine; therefore, upon review, the Board finds that the evidence relevant to this portion of the claim/appeal period shows that the currently assigned 10 percent rating is appropriate, and no increased rating is warranted under the General Rating Formula for spine disabilities. For the portion of the rating period from November 4, 2010 The evidence relevant to the portion of the rating period from November 4, 2010 shows that the Veteran's back disability more closely approximates the criteria for the currently assigned 20 percent rating. When the Veteran underwent medical examination in November 2010, the QTC medical examiner noted that the Veteran was able to perform forward flexion to 40 degrees, with pain at 40 degrees, and the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The limitation of motion demonstrated is consistent with the schedular criteria for the currently assigned 20 percent schedular rating. Throughout the period, the Veteran's back disability is not shown to be manifested by ankylosis or forward flexion limited to 30 degrees or less, which would be required for a higher schedular rating; therefore, upon review, the Board finds that the evidence relevant to this portion of the rating period shows that the currently assigned 20 percent rating is appropriate, and no increased rating is warranted under the General Rating Formula for rating spine disabilities. Two Evaluation Methods Comparison As between the two methods for evaluating the Veteran's back disability (i.e., based on incapacitating episodes and the general rating formula for rating spine disabilities), rating the Veteran's back disability based on incapacitating episodes is more advantageous to the Veteran for the portion of the rating period from April 14, 2009 to November 3, 2010 because it results in an increased rating of 20 percent (from 10 percent); however, there is no increased rating warranted under either method for the portions of the rating period prior to April 14, 2009 or from November 4, 2010 forward. Neurological Impairment, Extraschedular Referral, and Whether TDIU Is Raised Throughout the rating period, the Veteran has complained of pain in the lower extremities at various times, and objectively demonstrated decreased sensation to pinprick on medical examinations performed in connection with the appeal; however, service connection was established for sensory deficit of the left and right lower extremities effective August 23, 2007 as secondary to service-connected diabetes mellitus, in the May 2008 rating decision on appeal. The Veteran's radicular complaints and symptomatology are already contemplated in the currently assigned schedular ratings for sensory deficit of the lower extremities under hyphenated DC 7913-8522, which identifies diabetes mellitus as the original disability and impairment of the musculocutaneous nerve (superficial peroneal nerve) as the residual condition; therefore, the Board is precluded from also assigning separate ratings for neurological impairment involving the lower extremities that may be due to the back disability because to do so would constitute pyramiding. 38 C.F.R. § 4.14 (2012). Although the Veteran initially denied having erectile dysfunction at the October 2007 QTC medical examination, he later wrote in a September 2008 statement (VA Form 21-4138) submitted in connection with a separate increased rating claim for diabetes that he had had erectile dysfunction for the past two years. The November 2010 QTC medical examiner considered the Veteran's complaint of erectile dysfunction and opined that it was not related to the back disability and was more likely related to the stroke. Based on the medical opinion, the RO granted service connection for erectile dysfunction, as well as special monthly compensation for loss of use of a creative organ effective August 21, 2008. For these reasons, a separate rating for erectile dysfunction is not warranted. The Veteran is not shown to have any other neurological complaints or findings that may be associated with the service-connected back disability. At the October 2007 and November 2010 QTC medical examinations, the Veteran denied having any bowel or bladder impairment related to the back. The Board has considered whether the increased rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the staged rating for the back disability. During the portion of the rating period prior to November 4, 2010, the Veteran's back disability was limited in range of motion (i.e., forward flexion to 70 degrees) with no additional limitation after repetitive use and consideration of Deluca factors, and the combined range of motion was 165 degrees. The Veteran's complaints of stiffness when bending at the waist, pain, and weakness were considered when performing the range of motion testing. Range of motion findings, to include consideration of Deluca factors such as pain, stiffness, and weakness are contemplated by the rating schedule. Also, the Veteran's complaint of tightness of muscles is contemplated in considering the presence of muscle spasm on examination, and muscle spasm is contemplated in the schedular criteria; however, the muscle spasm demonstrated on examination was not shown to result in abnormal gait or abnormal spinal contour, which was consistent with the currently assigned 10 percent rating for that portion of the rating period. The Veteran denied having any incapacitation at the QTC medical examination, and showed no ankylosis. Therefore, the reported symptoms and impairment are contemplated in the current 10 percent schedular rating for the portion of the rating period prior to April 14, 2009. Based on the estimation by the Veteran's treating physician, in a letter and form dated April 14, 2009, that the back disability required 21 days of rest at home during flare-ups, the Board awarded an increased rating of 20 percent based on incapacitating episodes. The 20 percent schedular rating contemplates the Veteran's duration of flare-ups for the back during the period and any symptoms and treatment related thereto. Regarding the portion of the rating period from November 4, 2010, the Veteran's back disability is manifested by forward flexion of 40 degrees, a combined range of motion of 145 degrees, back tenderness not resulting an abnormal gait or abnormal spinal contour, and incapacitating episodes due to back pain of duration of 15 days in the past 12 months. At the November 2010 medical examination, the Veteran complained of worsened back pain when performing repetitive bending, rotation and stooping. The schedular criteria contemplate the Veteran's demonstrated limitation of motion, the tenderness shown on examination, and the duration of incapacitating episodes causing him to miss work. Also, the Board notes that the Veteran told the examiner that he could function with medication. Throughout the rating period, the Veteran has been on permanent light duty due to an inability to reach overhead due to other disability unrelated to the back. See October 2007 QTC examination report (the examiner noted the Veteran's recent stroke with right upper extremity paralysis and opined that the right shoulder disability was less likely related to the lumbar spine disability). Thus, the symptoms/manifestations and functional impairment related to the Veteran's back disability are fully contemplated and adequately compensated by the current staged rating under Diagnostic Code 5243 for the rating period. For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's back disability, and referral for consideration of extraschedular rating is not necessary. The Board has further considered whether a TDIU was reasonably raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). After review of the record, the Board finds that a TDIU is not raised because the Veteran has been employed full-time throughout the period. See, e.g., April 2009 treatment record (noting in the Veteran's social history that he works full time at the post office in automation on the night shift). ORDER An evaluation in excess of 10 percent for lumbosacral strain with degenerative changes and IVDS for the portion of the rating period prior to April 14, 2009 is denied. An evaluation of 20 percent for lumbosacral strain with degenerative changes and IVDS from April 14, 2009 to November 3, 2010 is granted, subject to the laws and regulations governing the payment of monetary awards. An evaluation in excess of 20 percent for lumbosacral strain with degenerative changes and IVDS from November 4, 2010 forward is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs