Citation Nr: 1320457 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 03-01 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability, prior to February 13, 2008, and to a disability rating in excess of 20 percent for the disability from May 1, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to February 1987 and from February 1988 to November 2001. He served in the Southwest Asia theatre of operations during the Persian Gulf War and was awarded the Combat Infantryman Badge (CIB). This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado that assigned an initial rating of 10 percent for the Veteran's lumbar spine disability. During the pendency of this claim, the Reno, Nevada, RO assumed the role as the agency of original jurisdiction. The Veteran presented testimony before the undersigned Veterans Law Judge in a hearing in Las Vegas, Nevada in March 2004. A transcript of that hearing is of record. During the pendency of this claim, the Veteran was granted a temporary total rating for convalescence from February 13, 2008, through April 2008. A rating of 20 percent was assigned from May 1, 2008. When this case was most recently before the Board in December 2011, the Board remanded the claims seeking service connection for a left elbow disability and seeking an increased rating for a lumbar spine disability. While the case was in Remand status, the Originating Agency issued a rating decision in September 2012 granting service connection for the left elbow disability. The case has now been returned to the Board for further appellate action. FINDINGS OF FACT 1. During the periods prior to February 13, 2008, and beginning May 1, 2008, the impairment from the Veteran's lumbar spine disability has more nearly approximated moderate than severe; during those periods, forward flexion of the lumbar spine has not been limited to 30 degrees or less, ankylosis of the spine has not been present, and neurological complications have not been present. 2. The disability has not resulted in incapacitating episodes having a total duration of at least 4 weeks during any relevant 12 month period. CONCLUSION OF LAW The Veteran's lumbar spine disability warrants a 20 percent rating, but not higher, during the period of the claim prior to February 13, 2008, and the period of the claim beginning May 1, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002), Diagnostic Codes 5292, 5293, 5295 (2003); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), 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. They 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 the Secretary 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the 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). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters sent in September 2004 and June 2009. While these letters were sent after the initial adjudication of this claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claim. II. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 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; 38 C.F.R. §§ 3.321(a), 4.1 (2012). During the pendency of this claim, the criteria for evaluating disabilities of the spine were revised. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003). The revised criteria may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, VA must apply the new provisions from their effective date. Under the criteria in effect prior to September 23, 2002, intervertebral disc syndrome warrants a noncompensable evaluation if it is postoperative, cured. A 10 percent evaluation is warranted if it is mild. A 20 percent evaluation is warranted if it is moderate with recurring attacks. A 40 percent evaluation is authorized for intervertebral disc syndrome if it is severe with recurrent attacks and intermittent relief. A 60 percent evaluation 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 evaluated (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 evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation. A maximum 60 percent evaluation is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent evaluation is assigned with the incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. Note 1 provides that 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. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation 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 was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003) and limitation of motion of the lumbar spine was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Under the criteria in effect prior to September 26, 2003, lumbosacral strain warrants a noncompensable evaluation if there are slight subjective symptoms only. A 10 percent evaluation is warranted if it is manifested by characteristic pain on motion. With muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position, a 20 percent evaluation is warranted. A 40 percent evaluation 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 evaluation if it is slight, a 20 percent evaluation if it is moderate or a 40 percent evaluation 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 evaluation if it is favorable or a 50 percent evaluation if it is unfavorable. 38 C.F.R. § 4.71a, Diagnostic Code 5289 (2003). Complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity and ankylosis of major joints or without other joint involvement warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5286 (2003). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§4.10, 4.40 and 4.45 (2004) are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Under the criteria effective September 26, 2003, lumbosacral strain and degenerative arthritis of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5242 (2012). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined above), 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 (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, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; 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. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; 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. A 40 percent evaluation 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. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, 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 lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, 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. Fourth, each range of motion should be rounded to the nearest 5 degrees. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2008). Words such as "mild", "moderate" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". See 38 C.F.R. § 4.6 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 III. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), 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. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. A. Prior to February 13, 2008 The Veteran had a VA spine examination in September 2001. The Veteran reported having symptoms on a daily basis, mainly at night. Symptoms were provoked by sitting or running. The discomfort was in the paraspinal musculature and did not radiate. He had to decrease his amount of exercise. On examination, forward flexion of the thoracolumbar spine was to 80 degrees and extension to 25 degrees. Lateral rotation of the thoracolumbar spine was to 35 degrees, bilaterally, and lateral flexion was to 40 degrees, bilaterally. X-rays showed disc space narrowing and spina bifida occulta at S1. Sensory testing was normal. No additional limitations were noted after repetitive testing. The diagnosis was degenerative disc disease with residual sequalae of discomfort and mild decreased range of motion (ROM). In his notice of disagreement, the Veteran said he had been having flare-ups since 1991 that required prescription drugs and bed rest. May 2003 treatment records from NFH show that that he had been having debilitating, stabbing pains and that the lumbar spine disability had been treated with steroid injections in the past. The provider noted a "somewhat antalgic posture." A May 2003 treatment record from NOSC shows that the Veteran reported pain localized in the lower back associated with muscle spasm. He denied pain in his legs. The provider noted decreased lumbar lordosis and tenderness at the lower lumbar paraspinal muscles, bilaterally. He expressed pain with lumbar extension and rotation on both sides. Nerve blocks were recommended and were performed two weeks later. A June 2003 follow-up treatment record states that the Veteran did not have immediate relief after the procedure. He was taking Percocet and Lortab as needed for pain. A June 2003 MRI showed multilevel premature degenerative disc disease. Buddy statements from a fellow service member and his employer indicate that they had observed the Veteran's episodes of back spasms. His supervisor said the Veteran had taken five days off in the past year due to back spasms. He said the Veteran had had four to five episodes. During his March 2004 Board hearing, the Veteran said he could twist 45 degrees but that everything he did needed to be centered in front of him. He could not bend and touch his toes, run, or drive more than an hour without a break. He said that if he does not stand and walk around after an hour of sitting, his back will seize. He could not ride in vehicles without suspension. He noted that when he tried to work through flare-ups, his episodes of spasms were distracting to coworkers; therefore, during severe episodes, he would go home. At work, he could not perform physical tasks. He was taking Lortab for the pain. In a March 2004 statement, the Veteran's wife she said his back was visibly contorted at the time of writing and that he was taking medication to ease the pain. In a statement dated in November 2004, the Veteran described a flare-up that occurred in October 2004. He said that while driving to Colorado on vacation he felt the trigger in his back and that once arriving at his destination, he was incapacitated for five days due to pain. While recovering, he drove to a work-related event in Idaho; however, upon arriving he had to seek treatment at an emergency room where he was given a muscle relaxer injection and a refill on his prescription for pain medication. He eventually drove home, while symptomatic, and returned to work. His condition flared days later and he had to be transported to the emergency room at MH where he was injected with muscle relaxants and morphine. After returning home, he had trigger point therapy, which provided some relief. He said MH providers prescribed a week of bed rest. Notably during this episode, he was reduced to crawling and his employment duties were restricted. The Veteran had a VA examination in March 2005. The examiner reviewed the claims file. The Veteran reported pain rating a 3 to 4 out of 10 on the pain scale, with 10 being the worst pain. Pain would increase to a 6 intensity after sitting for 30 minutes, standing for one hour, or with heavy lifting. He had painful limited motion but no radicular pain. He was taking Lortab to alleviate the pain. He did not report flare-ups or bowel or bladder symptoms. He said his condition did not interfere with performing activities of daily living (ADLs) or his employment activities. The examiner observed a normal gait and normal spinal contour. The Veteran was able to perform the squatting maneuver and get on the examining table easily. Forward flexion of the thoracolumbar spine measured to 70 degrees, extension to 20 degrees, lateral flexion to 25 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally. He had pain at the extreme ranges. Repetitive motion increased pain but did not affect the ROM measurements. The examiner observed mild muscle spasm of the paraspinous muscles with mild-to-moderate tenderness over the lower lumbar spine. X-rays showed spina bifida occulta at L5 and normal lumbar lordosis. The examiner said the Veteran's complaints of low back pain are associated with mild limitation of motion and that he would normally be expected to forward flex to 80 degrees, extend to 30 degrees, flex laterally to 30 degrees, bilaterally, and rotate laterally to 40 degrees, bilaterally, without pain. The examiner also noted the muscle spasms. The examiner concluded that the Veteran's subjective complaints were consistent with his chronic sprain of the lumbar spine. Neurologic deficits were not observed. The Veteran had another VA examination in December 2005. The examiner reviewed the claims file. The Veteran reported increased pain rating a 6 to 8 on the pain scale with aching pain to the right buttock. He denied radicular pain or change of sensation involving his legs below the knees. Pain was exacerbated to a 9 with sitting, standing, and walking 20 minutes. He reported painful limited motion of the spine. He continued to take Lortab and was taking Soma, which had mild benefit. Pain did not prevent him from performing ADLs or employment duties. His gait was normal and he was able to perform 75 percent of the squatting maneuver. ROM testing showed forward flexion of the thoracolumbar spine to 90 degrees, extension to 30 degrees, and lateral flexion to 30 degrees, bilaterally. The Veteran expressed pain at the extreme ranges. Lateral rotation was to 30 degrees, bilaterally, without pain. The examiner said repetitive motion caused additional loss of ROM of 10 degrees flexion, 10 degrees extension, and 10 degrees lateral flexion, bilaterally. Function was additionally limited by pain following repetitive use. X-rays show mild to moderate decreased lumbar lordosis. The examiner observed loss of normal lumbar lordosis with mild muscle spasm in the paraspinous muscles of the lumbar spine. The diagnosis was lumbar spine, chronic strain with mild-to-moderate muscle spasm but no neurologic or mechanical deficit. In a statement received by VA in February 2006, the Veteran said the VA examination report incorrectly stated that his service-connected lumbar spine disability did not affect employment. He said he is unable to engage in physical contact activities due to his back, fingers, and shoulders. While the examiner found no evidence of incapacitating episodes, the Veteran said he had to be taken to the hospital for back spasms where he stayed for three days because he could not move. On the fourth day, his wife took him for trigger point therapy. He was not able to walk unassisted until two days later. He said his normal treatment for back spasms is to take medications to knock himself out for three to seven days until the pain subsides. A September 2007 treatment record from EACH indicates that the Veteran reported severe pain. He said he could not think straight and could barely ride in a car due to pain. Private treatment records from Dr. R.L., MD, dated in November 2007, show complaints of pain rating a 6 on the pain scale. Prolonged sitting, bending, and activities such as putting on socks exacerbated the condition. He was taking Vicodin and Soma for relief. He denied radiating pain and weakness. He reported continued muscle pain and spasms. His spine was not tender to palpation or percussion. ROM test results were not provided except for extension, which was noted as 15 degrees. The Veteran expressed increasing pain with forward flexion. Radiographic data showed mild multilevel degenerative disc disease. An August 2007 MRI demonstrated L4-S1 annular bulges. Due to the severity of his symptoms, the physician recommended lumbar discography. In December 2007, the Veteran underwent a discography CT scan. The impression was positive provocative discography at L4-5 with severe concordant low back pain. There was partial concordance at the L5-S1 level; however, the provider said this was not a significant finding given that pain came on at a pressure of 70. At a follow up appointment with Dr. R.L. in January 2008, the Veteran reported continuing, significant, unrelenting low back pain. Dr. R.L. recommended spinal fusion at L4-5 with the plate. Surgery was performed February 13, 2008. After reviewing the record, the Board concludes that the Veteran's disability picture prior to February 13, 2008, warrants a 20 percent disability rating for moderate recurring attacks of IVDS under Diagnostic Code 5293, effective prior to September 23, 2002. During this period, the Veteran had degenerative disc disease with recurring flare-ups that resulted in absence from work and modified work duties; treatment with opioid pain relievers such as Percocet, Vicodin and Lortab; treatment with muscle relaxers, such as Soma; limitation of motion; decreased lumbar lordosis; and invasive treatments such as nerve blocks. Accordingly, the Board finds that the assignment of an initial 20 percent disability rating for moderate recurring attacks would be equitable and just. The disability does not warrant a rating in excess of 20 percent during this period. Specifically, an initial disability rating in excess of 20 percent is not warranted for this period under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002) because the impairment did not more nearly approximate severe attacks with intermittent relief. The Veteran consistently denied having radiation of pain to his lower extremities. At most, he reported some radiation to his buttocks. An initial rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (effective prior to September 26, 2003), because the limitation of motion of the lumbar spine did not more nearly approximate severe than moderate. Per the September 2001 and March 2005 VA examiners, the Veteran's lumbar spine disability caused mild limitation of motion of the spine, which would warrant only a 10 percent disability evaluation under Diagnostic Code 5292. The Board has considered the Veteran's complaints of pain and flare-ups but finds that even when considering these symptoms, his ROM is far greater than required for a finding of severe limitation of motion. See 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, 8 Vet. App. at 204-7. A rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5293 from September 22, 2002, based on incapacitating episodes because while the evidence shows that the Veteran said he had had incapacitating episodes and had self-treated his condition with bed rest, the evidence does not show that a physician had prescribed bed rest for four to six weeks in a twelve month period. Similarly, a higher rating is not warranted under the criteria of Diagnostic Code 5295 prior to September 26, 2003. None of the evidence for that period shows listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, or abnormal mobility on forced motion. Finally, a disability rating in excess of 20 percent is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5243 from September 26, 2003. First, under the criteria for rating IVDS based on incapacitating episodes, as noted above, the evidence does not show that a physician had prescribed bed rest for four to six weeks in a twelve-month period. A rating in excess of 20 percent is not warranted under the General Formula because forward flexion of the thoracolumbar spine was not limited to 30 degrees or less and the spine did not exhibit favorable or unfavorable ankylosis at any time prior to February 13, 2008. During this period, range of motion testing showed that forward flexion of the thoracolumbar spine ranged between 70 and 90 degrees. Ankylosis was not noted. In sum, the Board finds that an initial disability rating of 20 percent, but not higher, is warranted during the period of the claim prior to February 13, 2008. B. From May 1, 2008 As noted in the introduction, the Veteran was granted a temporary total evaluation for his lumbar spine disability from February 13, 2008, through April 2008, due to surgical treatment necessitating convalescence. A 20 percent rating was assigned from May 1, 2008. April 2008 treatment records from Dr. R.L. indicate that the Veteran was three months post-op from his L4-5 fusion and that he was doing extremely well. The Veteran was not taking narcotic pain medication. He had some discomfort when sneezing and coughing but was otherwise functioning at a high level. He was cleared to return to work but was limited to lifting less than 30 pounds and advised to avoid significant bending and twisting. In July 2008, the Veteran said he was working on his house and that his back was sore in the evenings. He wore a back brace while working and was taking one-half of a Lortab at night. In February 2009, he reported low back soreness, especially in the mornings. He denied having muscle spasms. He continued to take one-half of a Lortab as needed before bed. Treatment records from Dr. F.A.S. show complaints of chronic back pain in April 2009. Private treatment records from Dr. T.V.S., MD, indicate that in May 2009, the Veteran continued to have chronic lumbar pain. He said he was constantly tight in the low back and that pain would intermittently radiate into the thoracic spine. He also noted radiation of pain to the right buttock. He was using one to two Vicodin per day. ROM measurements were not provided; however, Dr. T.V.S. observed stiffness with flexion and extension. Dr. T.V.S. did not observe obvious spinal misalignment. It was recommended that the Veteran continue to take the Vicodin and a muscle relaxer, Soma, on average once per day as needed. The Veteran submitted a statement in July 2009. He said he had had surgery in February 2008, which significantly helped his pain until April 2008 when his spasms returned. His pain levels returned to a 4 to 6 on the pain scale. He was prescribed hydrocodone and was supposed to be issued a neurostimulator. He said his employment was in the security field and that he dealt with weapons and vehicles and could not use his pain medications during work hours. A July 2009 treatment record from Dr. M.M., MD, shows lumbosacral flexion to 60 degrees, with pain, and extension to 10 degrees. Lateral rotation was minimally painful. Measurements were not provided for lateral rotation or lateral flexion. Dr. M.M. said that the Veteran had significant ongoing mid lumbosacral pain and that the medial branch blocks and rhizotomy were not helpful. The Veteran had a VA examination in March 2010. The examiner reviewed the claims files. The Veteran said that since his surgery, his pain has been a 3 to 4 on the pain scale with half of a hydrocodone. He takes four tablets of hydrocodone per day. His pain is accompanied by weakness, stiffness, and fatigue and he said his symptoms are continuous. He reported pain radiating to his right buttock and mid posterior thigh, but said that the pain was relatively mild. He can walk half of a mile and sit for 30 minutes. He can also grocery shop and stand in line without problems but tends to lean on the cart. Since his surgery, he has not had the incapacitating muscle spasms. He said current flare-ups and incapacitating episodes are not treated with physician-ordered bed rest because flare-ups prevent him from getting to a doctor. The examiner observed normal gait. The Veteran could squat only two-thirds of the way due to back and knee pain. Also noted were mild scoliosis in the lumbar spine and mild decrease in usual lumbar lordosis. The straight leg test caused posterior thigh pain on the right; however, the examiner noted that for radiculopathy, the pain would need to go down below the level of the knee. The lower lumbar paraspinals were tender to palpation with mild muscle tightness but without spasms. Noted was decreased sensation of the bilateral sural distribution. ROM testing of the thoracolumbar spine showed forward flexion to 72 degrees, with pain at 45 degrees. After repetitive use, forward flexion measured to 65 degrees, with pain at 60 degrees. Extension measured to 20 degrees, with pain, before and after repetitive testing. Right and left lateral flexion measured to 30 degrees and 35 degrees, respectively, with pain at 25 and 30 degrees, respectively. Rotation measured to 30 degrees, bilaterally, with pain at the end range. No other change in ROM was observed after repetitive testing. The examiner said there was sufficient disability that an additional 15 degrees flexion loss is recommended. The examiner noted that the scar from the lumbar fusion measured 4.5 cm by 0.4 cm and was pale purple. The scar was asymptomatic. In the diagnosis, the examiner said the Veteran did not have radiculopathy or evidence of motor deficits. However, based on degenerative changes through the L5-S1 level, the decreased sensation bilaterally in the sural distribution is as likely as not related to a remote S1 radiculopathy. In May 2010, Dr. T.V.S. noted that the Veteran had a spinal cord stimulator trial in February that did not go well. The Veteran said the trial increased his symptoms and "paralyzed" him. Symptoms otherwise remained the same. In March 2011, the Veteran's wife submitted a statement indicating that the Veteran's back spasms had returned and that he experienced an incapacitating episode days prior to her letter. She said the Veteran was bedridden and reduced to crawling to go to the bathroom for two days. Days later, he was still unable to bend over to pick things up. In March 2011 statements from the Veteran, he noted his episode of incapacitating back spasms and said that he was issued a cane because he was dragging his right leg as he moved. He said he could not do things such as chores, dress himself, or drive to the doctor, during flare-ups. His wife had been performing these things for him. He also said his spasms are why he has not been fully employed since 2007. A treatment record from urgent care shows treatment for his episode in March 2011. In August 2011, Dr. M.M. observed mild muscle spasms in the lower thoracic areas. He said the right sacroiliac pain was consistent for the arthropathy. In November 2011, Dr. M.M., performed diagnostic medial branch blocks and said the Veteran would be a good candidate for facet rhizotomy. In March 2012, the Veteran said his pain had been increasing in the last couple of weeks. Dr. M.M. performed medial branch radiofrequency neurolysis. In a March 2012 statement, the Veteran reported that he had had another flare-up in February. He sought treatment and was provided with a trigger point injections at an urgent care facility and at Dr. M.M.'s office. He said he was immobile and bedridden for a week during that episode. The Veteran had a VA examination in April 2012. The examiner reviewed the claims files and noted that recent treatment records from the Veteran's pain management physician were not available for review. Subsequent to the examination, these records were provided to the examiner and in an August 2012 addendum, the examiner said her diagnosis remained unchanged. During the examination, the Veteran said he had not missed work in the past year due to his spine. He also worked around the home managing three horses and cleaning the barn. He reported limitation with functional mobility and said he has to wear a lumbar brace by the end of the day. He denied weakness or numbness in the lower extremities and bowel or bladder impairment, but noted occasional cramping in the right buttock. He had radiofrequency ablation two months prior to his VA examination and said the treatment caused numbness of his left foot, which was slowly improving. Also noted was left leg-length discrepancy, which was treated once through osteopathic hip manipulation, with complete relief of his baseline pain for a day following his lumbar fusion. Also pointed out was that the lumbar spinal stimulator trial worsened his pain. He said pain improves with walking and mobilization. The examiner observed minimal leg-length discrepancy and said that the scar from his lumbar fusion surgery measured 4 cm by 0.5 cm and was asymptomatic. The right SI joint was tender into the right gluteal muscle. It worsened with passive right knee flexion and improved with posterior pelvic tilt. ROM testing showed forward flexion of the thoracolumbar spine to 70 degrees with pain at 60 degrees; extension to 20 degrees; right lateral flexion to 20 degrees with pain at the end range; left lateral flexion to 30 degrees; and lateral rotation to 30 degrees, bilaterally, without pain. Repetitive testing showed an increase to 25 degrees for right lateral flexion. All other test results were unchanged. In the diagnosis, the examiner found no evidence of radiculopathy but noted the leg-length discrepancy with reproducible pain in the right sacroiliac joint without radiation consistent with sacroiliitis or right sacral strain. In September 2012, the originating agency found that the April 2012 examination report was inadequate because the examiner did not indicate whether the Veteran had IVDS or incapacitating episodes or indicate whether the right sacroiliac joint dysfunction with accompanying leg-length discrepancy was productive of any limitation of motion or other findings associated with the right hip. Therefore, in February 2013, the Veteran had another VA examination. The examiner reviewed the claims files. ROM testing of the right hip showed flexion to 115 degrees with pain starting at 90 degrees. Right hip extension was greater than 5 degrees with no objective evidence of pain. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited such that the Veteran could not toe out more than 15 degrees. After repetitive motion, right hip flexion measured 120 degrees. All other test results remained the same. The Veteran's right leg measured 97 cm while his left leg measured 98 cm. The examiner noted that the Veteran's lumbar spine disability flares-up once per year and requires trigger point injections. She also said he has limitation of the thoracolumbar spine due to pain on movement. The soft tissue of the thoracolumbar spine was tender to palpation. The examiner found that the Veteran does not have IVDS and did not have incapacitating episodes over the prior 12 months; however, she noted that X-rays document arthritis. The Board has considered all of the evidence but finds no evidence of record that would warrant a rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability from May 1, 2008. Specifically, a rating in excess of 20 percent is not warranted based on incapacitating episodes because while the evidence shows that the Veteran said he had had incapacitating episodes and had self-treated his condition with bed rest, the evidence does not show that a physician had prescribed bed rest for four to six weeks in a twelve month period. A rating in excess of 20 percent is not warranted under the General Formula because forward flexion of the thoracolumbar spine was not limited to 30 degrees or less and the spine did not exhibit favorable or unfavorable ankylosis at any time since May 1, 2008. During this period, range of motion testing showed that forward flexion of the thoracolumbar spine ranged between 50 and 70 degrees. Ankylosis was not noted. The Board has considered the Veteran's complaints of pain and flare-ups but cannot find that his symptoms are of the severity to warrant a rating in excess of 20 percent. Simply, the additional limitation the Veteran experiences due to pain on repetition was accounted for by the VA examiners when determining his range of motion. There is no other evidence showing that the Veteran has more limitation of motion than that found at his VA examinations. The Board has also considered whether a separate rating is warranted for neurological impairment. Notably, in March 2010 the Veteran reported pain radiating to the right buttock and the mid-posterior thigh; however, the examiner noted that for radiculopathy, the pain would need to extend below the level of the knee. The examiner specifically found that the Veteran did not have radiculopathy or evidence of motor deficits. Further, while the examiner also indicated decreased sensation in the sural distribution, this deficit was not noted in any other examination reports or treatment records; therefore, the Board finds that there is no distinct period of time in which a separate compensable rating is warranted for neurological impairment. The Board has also considered whether a separate compensable rating is warranted under the criteria for rating the hip and thigh based on the right sacroiliac joint dysfunction with accompanying leg-length discrepancy associated with the service-connected lumbar spine disability. However, separate ratings are not warranted because the condition does not limit extension of the thigh to 5 degrees; limit flexion of the thigh to 45 degrees or less; limit rotation or prevent toeing out more than 15 degrees; or limit adduction to prevent crossing the legs. 38 C.F.R. § 4.71a, Diagnostic Codes 5251-5253. Finally, the Board notes that the surgical scar is well healed and asymptomatic. There is no basis for assigning a separate compensable rating for the surgical scar. Consequently, the Board finds that the preponderance of the evidence weighs against the assignment of a disability rating in excess of 20 percent from May 1, 2008. III. Other Considerations The Board has considered whether there is any other schedular basis for granting a higher rating or ratings, but has found none. Consideration has been given to assigning a higher staged rating; however, at no time during the periods in question has the disability warranted more than a 20 percent rating. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations 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 reflects that the manifestations of the lumbar spine disability are contemplated by the schedular criteria. Reports of flare-ups and emergency or urgent care treatment as well as the affect of the disability on employment have been considered in assigning the current ratings. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Finally, the Board has considered whether a claim has been raised for a total disability rating based on individual unemployability due to the service-connected back disability has been raised. In this case, the Veteran has not asserted his service-connected lumbar spine disability renders him unemployable and there is no other indication in the record that it renders him unemployable. ORDER The Board having determined that the Veteran's lumbar spine disability warrants a 20 percent disability rating, but not higher, during the period of the claim prior to February 13, 2008, and the period of the claim beginning May 1, 2008, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs