Citation Nr: 1320119 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 97-31 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for peripheral neuropathy, to include as due to exposure to herbicides. 2. Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active air service from February 1967 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 1996 and June 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board and in January 2007, the Board denied the issue currently before the Board. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In an April 2009 memorandum decision, the Court vacated the Board's January 2007 decision and remanded the case to the Board for action consistent with the memorandum decision. In December 2009, the case was remanded by the Board for additional development. The Board notes that in multiple letters, the Veteran's attorney has reported that the Veteran submitted a February 2011 letter expressing his disagreement with the 10 percent disability rating assigned for ischemic heart disease in a November 2012 rating decision. After a complete review of both the physical claims file and the Virtual VA electronic claims file, the Board has not found this reported letter to be of record. Therefore, the Board has not included the issue of entitlement to an increased disability rating for ischemic heart disease in this appeal. However, if such a letter is found to be of record at the VA RO, then the appropriate action should be taken at that time. The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for peripheral neuropathy is addressed in the REMAND following the ORDER section of this decision. FINDING OF FACT The Veteran's lumbar spine disability is manifested by painful motion; positive Goldthwaite's sign; degenerative changes; tenderness and paravertebral muscle spasms; and, limitation of flexion to, at worst, 30 degrees; and has not resulted in pronounced intervertebral disc syndrome with associated symptoms and little intermittent relief, separately compensable neurological impairment in either lower extremity, ankylosis, or excessive incapacitating episodes necessitating bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5291, 5292, 5293, 5295 (2003); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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 assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2012). 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. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The record shows that the Veteran was mailed a letter in December 2005 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In an April 2006 supplemental statement of the case, the Veteran was provided with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). Following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete notice been provided at an earlier time. Overton v. Nicholson, 20 Vet. App. 427 (2006). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service medical records are on file, VA Medical Center and private treatment notes have been obtained, Spanish language documents have been translated, and the Veteran has been afforded appropriate VA examinations. The Board notes that in a March 2013 statement, the Veteran's attorney alleged that the October 2011 VA examination report was inadequate as the examiner noted that the Veteran did not have neurological symptoms that caused him pain at the time of the VA examination. The Veteran's attorney noted that this finding was inconsistent with other evidence of record indicating that the Veteran had in fact been diagnosed with various neurological impairment of his lower extremities. The Board finds that the October 2011 VA examination report is more than adequate for adjudication purposes. In this regard, the Board notes that the VA examiner provided a complete and detailed explanation for his statements that fully supported the findings in the examination report. Therefore, there is no bar to proceeding with a final decision at this time. Neither the Veteran nor his attorney has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2012). 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). The rating of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2012). When rating joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45 (2012). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). During the pendency of this claim, the criteria for rating disabilities of the spine were revised. Under the criteria in effect prior to September 23, 2002, intervertebral disc syndrome warrants a 0 percent rating if it is postoperative, cured. A 10 percent rating is warranted if it is mild. A 20 percent rating is warranted if it is moderate with recurring attacks. A 40 percent rating is warranted if it is severe with recurrent attacks and intermittent relief. A 60 percent rating is warranted for pronounced intervertebral disc syndrome 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, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under the interim revised criteria of Diagnostic Code 5293, effective September 23, 2002, intervertebral disc syndrome is rated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating. A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months, and a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. For the purposes of evaluations under Diagnostic Code 5293, 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. Chronic orthopedic and neurological manifestations means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. When rating on the basis of chronic manifestations, rate orthopedic disabilities using the rating criteria for the most appropriate orthopedic diagnostic code or codes. Rate neurological disabilities separately using rating criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Under the criteria in effect prior to September 26, 2003, lumbosacral strain warrants a 0 percent rating if there are slight subjective symptoms only. A 10 percent rating is warranted if it is manifested by characteristic pain on motion. A 20 percent rating is warranted when there is evidence of muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position. 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 a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warrants a 10 percent rating if it is slight, a 20 percent rating if it is moderate, or a 40 percent rating if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Under the criteria in effect prior to September 26, 2003, ankylosis of the lumbar spine warrants a 40 percent rating if it is favorable or a 50 percent rating if it is unfavorable. 38 C.F.R. § 4.71a, Diagnostic Code 5289 (2003). Under the criteria effective September 26, 2003, degenerative arthritis of the spine is to be rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). Intervertebral disc syndrome will be rated under the General Rating Formula for Rating Diseases 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). Under the General Rating Formula for Rating Diseases and Injuries of the Spine, effective September 26, 2003, 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, the following ratings will apply. A rating of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). Associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of thoracolumbar spine is to 240 degrees. In exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). Disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolved reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In April 1995, the Veteran was afforded a VA examination. At that time, the Veteran reported that he experienced constant, burning low back pain with radiation and numbness into both legs. He reported that the pain worsened after standing or sitting for prolonged periods of time. Upon physical examination, there were no postural abnormalities or fixed deformities of the back. There was tenderness to palpation of lumbar paravertebral muscles. Range of motion measurements of the thoracolumbar spine were flexion to 52 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees each, left lateral rotation to 45 degrees, and right lateral rotation to 42 degrees. There was objective evidence of pain on motion in all movements of the thoracolumbar spine. There was muscle atrophy of the right thigh, which measured 44 centimeters when compared to the left thigh measurement of 45 centimeters. The Veteran had positive straight leg raising in both legs and experienced diminished and smooth sensation on right L5-S1 dermatome of the foot. Muscle strength of all muscles in both legs was 5/5. The Veteran was able to walk on his toes and his heels. The examiner diagnosed clinical right L4, L5, and S1 radiculopathy and lumbar paravertebral myositis. In November 2001, the Veteran was afforded another VA examination. At that time, the Veteran reported experiencing pain, weakness, stiffness, fatigability, and lack of endurance. He reported that he experienced a severe, burning type of pain in his low back that radiated into his lower extremities. He reported that he had a constant cold sensation in his left leg and occasional numbness in both legs, but that the symptoms were worse in the left leg. The Veteran denied any fecal or urinary incontinence. The Veteran reported that he experienced painful flare-ups of his low back symptoms. He reported that he had made two visits to the emergency room in the past year as a result of severe low back pain. The Veteran reported that he saw his private neurologist every two months and that he was treated with anti-inflammatory agents with temporary pain control. The Veteran reported that the only medication that helped him control the pain was Flexeril, with good relief lasting two to three hours. The Veteran reported that his painful flare-ups were caused by prolonged periods of sitting and standing, long periods of inactivity, sleeping in different postures, and bending. He reported that his flare-ups were alleviated with medication, resting for hours while laying on his abdomen on the floor, ice packs, and a TENS unit. The Veteran reported that in the last year, he had experienced three episodes of severe back pain requiring bed rest. The Veteran reported that he had a wheelchair and a cane, but did not indicate how often he required assistance with ambulation. He reported that he was unable to swim, box, snorkel, fish, or run as a result of his back disability. Upon physical examination, range of motion measurements of the thoracolumbar spine were flexion to 40 degrees, extension to 20 degrees, right and left lateral flexion to 35 degrees each, and right and left lateral rotation to 35 degrees each. The examiner reported that there was no objective evidence of painful motion of all movements of the lumbar spine. There were no lumbar paravertebral muscle spasms. There was no weakness in the legs and muscle strength was 5/5. There was no tenderness to palpation of the lumbosacral area. There were no postural abnormalities or fixed deformities. The Veteran's gait was normal. Knee and ankle jerks were +1, bilaterally. The Veteran had a positive Goldthwaite sign in the left leg. Straight leg raising was negative, bilaterally. There was 3 centimeters of atrophy of the left thigh at 15 centimeters suprapatellar area. The examiner diagnosed lumbar paravertebral myositis and clinical right L4-L5-S1 radiculopathy. The examiner noted that the Veteran was not having an acute flare-up at the time of the examination. The examiner further noted that based on the examination, there was no evidence of excess fatigability, incoordination, or pain on use. However, the examiner also noted that X-rays taken in May 2000 revealed that the Veteran had degenerative disc disease (DJD) at L3-4 and that the Veteran reported muscle spasms on repeated use which could cause excess fatigability, incoordination, or pain on use of the lumbosacral spine. The examiner noted that the Veteran's visible behavior was not compatible with the findings on physical examination. The examiner also noted that the Veteran's non service-connected peripheral neuropathy was overshadowing his service-connected disability. In May 2004, the Veteran was afforded another VA examination. At that time, the Veteran reported that he had experienced an increased intensity in his low back pain and increased radiating pain in his legs, left worse than the right. He reported that his back pain was sharp and burning in nature and that the pain in his legs was sharp in nature and accompanied by numbness. The Veteran reported increased stiffness in his back. He denied any urinary or fecal incontinence, but reported difficulty cleaning himself after using the bathroom as a result of his back pain. The Veteran reported that his back pain was constant and severe, but that he at times also experienced painful flare-ups. He reported that during a flare-up, he experienced decreased range of motion and decreased ambulation. The Veteran reported that he was only able to walk for three minutes at a time before having to sit down as a result of back pain. He reported that he wore a lumbosacral corset as needed, but that he did not use any assistive devices. He reported that he had an unsteady gait, but that he has no history of frequent falls. The Veteran reported that he was unemployed and required assistance with bathing and dressing. Upon physical examination, the Veteran was found to ambulate with erect posture, equal step, and normal cadence. Range of motion measurements of the thoracolumbar spine were flexion to 79 degrees, with pain beginning at 50 degrees; extension to 15 degrees, with pain throughout; right and left lateral bending to 20 degrees each; and right and left lateral rotation to 30 degrees each, with pain beginning at 20 degrees on each side. The Veteran experienced pain with repetitive use, but there was no lack of endurance, weakness, excess fatigability, fatigue, or restricted movement with repetition. There was tenderness to palpation and spasms at the L4, L5, and S1paravertebral muscles, bilaterally. The Veteran had normal spinal contour and there was no guarding, abnormal kyphosis, reversed lordosis, or scoliosis. There was no evidence of postural abnormalities, ankylosis, or abnormalities of the musculature of the back. There was decreased sensation to pinprick and light touch in the L4, L5, and S1 distribution of the left lower extremity. Manual muscle strength was 5/5, L1 through S1 myotomes bilaterally. There was no atrophy or abnormal tone in the lower extremities. Bilateral patellar deep tendon reflexes were +1 and bilateral Achilles deep tendon reflexes were +2. Straight leg raising and Lasegue's were both positive on the right. The examiner confirmed the diagnosis of lumbar myositis and right L4, L5, and S1 radiculopathy. In March 2006, the Veteran was afforded another VA examination. At that time, the Veteran reported that he had continued to experience low back pain that radiated into both legs in an almost symmetric fashion. The Veteran reported that he experienced pain for approximately three to four hours per day and that the pain was shock-like and stabbing in nature. He reported that the pain was usually a 6 out of 10 in intensity. The Veteran reported that he took Gabapentin and Ibuprofen with mild relief. The Veteran reported that he experienced painful flare-ups on a weekly basis, that the flare-ups would last for approximately six to seven hours at a time, and that during a flare-up his pain increased to a 9 out of 10 in intensity. The Veteran reported that his flare-ups were precipitated by prolonged standing and sitting, bending forward, and bad weather. He reported that he took medication for the pain and that hot showers sometimes helped to alleviate his symptoms. The Veteran denied any additional limitation of motion during flare-ups. The Veteran denied having weight loss, fever, bladder complaints, bowel complaints, or erectile dysfunction. The Veteran reported that, on seldom occasions, he used a one-point cane for assistance with ambulation. The Veteran reported that he wore a lumbosacral corset for support and he denied both unsteadiness and a history of falls. The Veteran reported that he was independent in self-care and activities of daily living, but was limited in some recreational activities as a result of back pain. Upon physical examination, range of motion measurements of the thoracolumbar spine were flexion to 50 degrees, with pain beginning at 30 degrees; extension to 20 degrees, with pain beginning at 10 degrees; right and left lateral flexion to 20 degrees each, with pain beginning at 10 degrees on each side; and right and left lateral rotation to 20 degrees each, with pain beginning at 10 degrees on each side. There was objective evidence of pain on repetition. However, there was no evidence of fatigue, incoordination, or weakness on repetition. There was some limitation in dressing and performing below the waist activities due to easy exacerbation of lumbosacral pain upon flexion. There was tenderness to palpation and spasms of the paravertebral muscles of the lumbosacral spine. There was no evidence of ankylosis, abnormal kyphosis, reversed lordosis, or scoliosis. Neurological examination revealed decreased pinprick stimulation and sensation in both lower extremities, but it did not follow any specific dermatome. There was no atrophy, muscle tone was normal, and strength was 5/5 proximally and distally in both lower extremities. Straight leg raising and Lasegue's tests were negative, bilaterally. X-rays from February 2006 showed spondylotic changes of the lumbosacral spine at L2-3 and L3-4, discogenic disease at the same levels, and facet joint arthropathy. The examiner diagnosed lumbosacral strain, myositis, and lumbosacral spondylosis. The examiner noted that there was no evidence of radiculopathy upon physical examination. The examiner noted that it was worthwhile to mention that the Veteran had been diagnosed with neuropathy, but not radiculopathy. The examiner further noted that the Veteran did not have any signs of neurologic dysfunction such as bladder or bowel dysfunction or erectile dysfunction. Additionally, the examiner noted that when asked, the Veteran reported that he had not needed to go to the emergency room for flare-ups in the past year. In June 2006, the Veteran was afforded another VA examination. At that time, the Veteran reported that he continued to experience low back pain and reported that it was shock-like and stabbing in nature. He reported that his low back pain was usually a 5 out of 10 in intensity. The Veteran reported that he experienced painful flare-ups on a weekly basis, that the flare-ups would last for approximately three to four hours at a time, and that his pain would increase to a 9 out of 10 in intensity. The Veteran reported that his flare-ups were precipitated by prolonged standing and walking, but denied any additional functional limitation during flare-ups. The Veteran denied bladder, bowel, and erectile dysfunction. The Veteran was able to ambulate without the use of assistive devices and he did not use any lumbosacral orthosis. The Veteran reported that he was able to walk for 10 to 30 minutes at a time and denied both unsteadiness and a history of falling. The Veteran reported that he was independent in self-care and activities of daily living. Upon physical examination, range of motion measurements of the thoracolumbar spine were flexion to 50 degrees, painful throughout; extension to 10 degrees, with pain; right and left lateral flexion to 15 degrees each, with pain; and right and left lateral rotation to 15 degrees each, with pain. Pain was elicited on repetition, but there was no evidence of weakness, fatigue, or further functional loss on repetition. There was tenderness to palpation accompanied by spasm upon palpation of the lumbosacral area. There was no evidence of ankylosis, scoliosis, or abnormal kyphosis; but there was reversed lordosis of the lumbosacral spine. Upon neurological examination, there was decreased sensation to pinprick in the left leg at L5-S1. Motor examination did not show any atrophy in the lower extremities and there was normal tone and muscle strength. Deep tendon reflexes were +1 and symmetric in the lower extremities. Lasegue's and Spurling's signs were negative, bilaterally. The examiner confirmed the diagnoses of lumbar strain, myositis, and diagnosed lumbar discogenic disease. In October 2011, the Veteran was afforded another VA examination. At that time, the Veteran reported that he experienced daily back pain that was deep and dull in nature and that limited him in activities that required back bending movements. The Veteran reported that he experienced painful flare-ups that were so severe that he was unable to get out of his bed as a result of the pain. Upon physical examination, range of motion measurements of the thoracolumbar spine were flexion to 30 degrees; extension to 15 degrees, with pain at 10 degrees; right and left lateral flexion to 25 degrees each, with pain at 20 degrees on each side; and right and left lateral rotation to 30 degrees each. The Veteran did not have additional limitation of motion following repetition. The Veteran's functional loss was attributed to pain on movement. There was pain on palpation of the lumbar paravertebral muscles. There was evidence of guarding and/or muscle spasm of the thoracolumbar spine present. However, it did not result in abnormal gait or spinal contour. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflexes were 1+ and symmetrical, bilaterally. Sensory examination was normal. Straight leg raising was negative, bilaterally. The examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and there were no other neurological abnormalities present. The examiner reported that the Veteran did not have intervertebral disc syndrome (IVDS). The Veteran did not use assistive devices for ambulation. The examiner diagnosed lumbar strain, lumbar myositis, and lumbar spondylosis. The examiner reported that the Veteran also has lumbar discogenic disease bulging at L4 and L5 and disc protrusion at L5 and S1. The examiner noted that the Veteran's subjective complaints of sciatic neuropathy did not correlate with the clinical physical neurological findings of the evaluation, which were negative for radiculopathy and neuropathy. The examiner noted that the examination was positive for lumbar myositis with findings of muscle spasms at lumbar paravertebral muscles and it was the examiner's opinion that the pain that the Veteran experienced in relation to his lumbar spine was secondary to chronic lumbar strain, spondylosis, and myositis and was not related to the lumbar disc disease shown on magnetic resonance imaging scan (MRI) as the Veteran had a negative neurological examination. A review of the record shows that the Veteran receives periodic treatment from both the VA Medical Center and private providers for complaints of back pain with pain radiating into his legs and lower extremity numbness. A review of the VA Medical Center and private treatment notes of record do not show that the Veteran has functional limitation in excess of that shown at his VA examinations. In a June 1995 letter from the Veteran's private neurologist, it was noted that the Veteran's chief complaints were severe low back pain with radiation into both legs. The diagnoses listed were peripheral neuropathy and left sciatic nerve compression. A review of private treatment records spanning from July 1990 to May 2001 shows that the Veteran routinely made complaints of leg pain and numbness. In June 1999, the Veteran was seen for complaints of numbness. The examiner at that time diagnosed neuropathy and radiculopathy. There is no indication from the treatment note as to the extent to which the Veteran's symptoms were attributed to his radiculopathy. In September 1999, the diagnosis was updated to neuropathy and polyradiculopathy. Again, there is no indication as to the extent to which the Veteran's symptoms were attributed to the diagnosis of polyradiculopathy. In February 2007, the Veteran was seen for an evaluation by a private neurologist. At that time, the examiner diagnosed herniated nucleus pulposus at L3-4 and L4-5 and a bulging disc at L5-S1. The Veteran was also diagnosed with peripheral neuropathy. However, there is no indication from the evaluation report that the Veteran's was noted to have radiculopathy symptoms that were the result of his lumbar spine disability. Further, there are no thoracolumbar spine range of motion measurements of record in the evaluation report. In September 2009, the Veteran was seen by his VA Medical Center primary care provider. At that time, the Veteran reported back pain with radiation of pain into both legs. He reported that the pain in his legs was sharp in nature and at times, caused his legs to give out. The examiner diagnosed low back pain, rule out DDD and possible herniated disc. The examiner recommended bed rest for three to five days with muscle relaxant, pain medication, and anti-inflammatories. The examiner ordered an MRI of the Veteran's lumbar spine. In October 2009, the Veteran was afforded the requested MRI. The MRI revealed decreased intervertebral disc space with a diffuse disc bulge at L3-4; decreased intervertebral disc space with degenerative changes in the endplates and diffuse disc bulge at L4-5; and decreased intervertebral disc space with degenerative changes in the endplates and diffuse disc bulge at L5-S1. The Board will first consider whether the Veteran is entitled to a disability rating in excess of 40 percent prior to the regulation change which was effective September 26, 2003. The Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent prior to the regulation change on September 26, 2003, or for any of the period under appeal using the regulations in effect prior to September 26, 2003. A 40 percent disability rating was the maximum disability rating allowable for lumbosacral strain under C.F.R. § 4.71a, Diagnostic Code 5295 (2003). However, the Board has considered whether a higher disability rating would be warranted under any different diagnostic code. There was no indication from the record that the Veteran had ankylosis of the spine during this period, or at any time during the appeal period under consideration, or that he had intervertebral disc syndrome. In fact, it was reported in both the April 1995 and November 2001 VA examination reports that there were no fixed deformities of the spine. Additionally, while May 2000 X-rays revealed that the Veteran had DDD, there is no indication that he had, or even has, pronounced intervertebral disc syndrome with symptoms such as sciatic neuropathy or other neurological findings with little intermittent relief. In fact, while the Veteran has routinely complained of pain and numbness in his legs and has a history of being diagnosed as having radiculopathy, the November 2001 VA examiner reported that the Veteran's lumbar spine disability was overshadowed by his non service-connected neuropathy. Furthermore, while the Veteran has been reported as having muscle spasms and tenderness to palpation, the evidence does not show that these symptoms are persistent and that he does not experience, at the very least, intermittent relief. In this regard, the Veteran has routinely reported that he is self-sufficient in routine care and he does not use assistive devices for ambulation on a regular basis. Additionally, while the Veteran has flare-ups, they are shown to be of a level of severity that is often relieved with self-treatment. Therefore, the Board finds that a disability rating in excess of 40 percent for the Veteran's lumbar spine was not warranted under the old criteria for any period under consideration in this appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5286, 5289, 5293 (2003). The Board will now address whether the Veteran is entitled to a disability rating in excess of 40 percent under the new rating criteria, effective September 26, 2003. The Board finds that the Veteran is also not entitled to a disability rating in excess of 40 percent for his low back disability under the new rating criteria, effective September 26, 2003. There is no evidence of record indicating that the Veteran has unfavorable ankylosis of the entire spine or ankylosis of the entire thoracolumbar spine. In fact, the Veteran's thoracolumbar spine flexion is limited to, at worst, 30 degrees of motion. Additionally, it has been expressly stated in the VA examination reports that there is no evidence of ankylosis and there are no treatment records, from either private providers or the VA Medical Center, indicating any ankylosis. Therefore, the Board finds that a higher disability rating is not warranted under the new criteria. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, General Rating Formula for Rating Diseases and Injuries of the Spine (2012). The Board notes that the additional limitation the Veteran experiences due to pain on repetition was accounted for by the VA examiners when determining the Veteran's range of motion. 38 C.F.R. § 4.40, 4.45 (2012). There is no other evidence showing that the Veteran has more limitation of motion than that found at his VA examinations to include during his reported painful flare-ups. Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 40 percent for the functional impairment of the Veteran's lumbar spine. Consideration has been given to assigning a rating under Diagnostic Code 5243, for degenerative disc disease based on incapacitating episodes rather than limitation of motion. While the Veteran has been diagnosed with lumbar disc syndrome, it was noted by the October 2011 VA examiner that the Veteran's functional limitation stemmed from his lumbar myositis and not his degenerative disc disease. Regardless, even if the Board were to assign a disability rating based on incapacitating episodes, the only evidence of medically prescribed bed rest was a single treatment note from September 2009, and that was much less than six weeks of prescribed bed rest. There is no evidence that the Veteran has experienced incapacitating episodes having a total duration of at least six weeks during any 12-month period. Therefore, a rating based on incapacitating episodes is not warranted at this time, and the Veteran is properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board has also considered whether a separate compensable rating for neurological impairment in either lower extremity is warranted. However, while the Veteran has reported significant symptoms of leg pain and numbness, those symptoms are not supported by the objective evidence of record. In fact, both the March 2006 and the October 2011 VA examiners indicated that the Veteran's subjective complaints of radiculopathy were not supported by the objective findings. Further, the Veteran has also been diagnosed with neuropathy, which is shown to not be related to the Veteran's back disability, and the November 2001 VA examiner reported that the Veteran's neuropathy symptoms were actually overshadowing the symptoms of his lumbar spine disability. The preponderance of the evidence of record is against a finding that the Veteran's diagnosed neuropathy is related to his service-connected lumbar spine disability. Therefore, the Board finds that a separate rating for a neurological impairment is not warranted for any portion of the rating period. Consideration has been given to assigning a staged rating. However, at no time during the period in question has the disability warranted a higher schedular rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record shows that the manifestations of the disability are contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned beyond the currently assigned rating. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased rating for a lumbar spine disability and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 40 percent for a lumbar spine disability is denied. REMAND The Veteran submitted a statement in July 2010 that the Board finds to be a timely notice of disagreement with the June 2010 rating decision that denied reopening the claim of entitlement to service connection for peripheral neuropathy. A review of the record shows that the Veteran was not issued a statement of the case in response to that notice of disagreement. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED to the RO for the following action: Issue a statement of the case on the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for peripheral neuropathy. Inform the Veteran of the requirements to perfect an appeal. If the Veteran perfects an appeal, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs