Citation Nr: 1321600 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 07-28 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to August 4, 2011, and in excess of 20 percent thereafter for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction. 2. Entitlement to service connection for degenerative joint disease of the cervical spine, claimed as a cervical spine disability. 3. Entitlement to service connection for left knee osteoarthritis. 4. Entitlement to service connection for right knee osteoarthritis. 5. Entitlement to service connection for a peptic ulcer. 6. Entitlement to service connection for gastroesophageal reflux disease (GERD). 7. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran had active service from May 1979 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In this regard, the September 2006 rating decision granted service connection for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction and assigned an initial 10 percent rating, effective April 16, 2001. The Veteran perfected his appeal with respect to the propriety of the initially assigned rating. In July 2011, the Board remanded the case for further development. While on remand in May 2012, the agency of original jurisdiction (AOJ) granted an increased rating of 20 percent for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction, effective August 4, 2011. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, this issue remains on appeal and has been characterized as shown on the first page of the decision. Additionally, the August 2012 rating decision denied service connection for degenerative joint disease of the cervical spine, left knee osteoarthritis, right knee osteoarthritis, a peptic ulcer, and GERD. The Veteran has entered a notice of disagreement as to such denials; however, a statement of the case has not been issued. The Board observes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the Veteran submitted a claim for TDIU in May 2011 with evidence contending that he ceased work and is unemployed because of his service-connected lumbar spine disability. Therefore, the Board has jurisdiction over the issue as part and parcel of his initial rating claim and has listed such on the title page of this decision. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file reveals February 1995 and July 2012 VA treatment records that were not considered by the AOJ; however, as relevant to the initial rating claim decided herein, such are either irrelevant or duplicative of the evidence already of record. 38 C.F.R. § 20.1304(c) (2012). Therefore, a remand for AOJ consideration of such evidence is not necessary. The Board further observes that additional evidence was obtained in the AOJ's processing of the Veteran's service connection claims. In this regard, such includes private treatment records and VA examinations referable to the service connection claims. Such documents were not considered by the AOJ in the adjudication of the Veteran's claim for a higher initial rating for his back disability. However, while such reference the Veteran's back disability, they provide duplicative findings to those already of record. Therefore, as the additional evidence is essentially duplicative of the evidence previously considered by the AOJ and, as such, is not relevant to the current matter, the Board may proceed with a decision without prejudice to the Veteran. Id. The issues of entitlement to service connection for degenerative joint disease of the cervical spine, left knee osteoarthritis, right knee osteoarthritis, a peptic ulcer, and GERD, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction results in functional loss that more nearly approximates no more than moderate limitation of motion, i.e., forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, due to pain, fatigue, incoordination, tenderness, and flare-ups, without lumbosacral strain with muscle spasms on extreme forward bending and unilateral loss of spine motion in the standing position or severe symptoms, or recurring attacks, or incapacitating episodes. 2. Prior to August 4, 2011, the Veteran's degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction did not result in neurological impairment. 3. As of August 4, 2011, the Veteran's degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction results in no more than moderate incomplete paralysis of the left and right sciatic nerves without evidence of additional neurological impairment. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial rating of 20 percent, but no higher, for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5292, 5010-5242, 8520 (2002), (2003), (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his back disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his back disability was granted and an initial rating was assigned in the September 2006 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of private and VA treatment as well as records from the Social Security Administration (SSA). The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in September 2005, November 2007, and August 2011 in conjunction with the claim on appeal. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected back disability as they include an interview with the Veteran, a review of the record, and a physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination report of record is adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. The Board remanded the appeal in July 2011 in order to provide the Veteran an opportunity to identify all current treatment for his service-connected disabilities and obtain a VA examination so as to assess the current nature and severity of his back disability. In response, the Veteran submitted two statements with a waiver of consideration by the RO. The Veteran noted that he had not received additional treatment from providers other than VA clinics. Also, pursuant to the remand, the Veteran was afforded an adequate VA examination in August 2011. Therefore, the Board finds that the AOJ has substantially complied with the July 2011 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran served as a U.S. Army noncommissioned officer with service in infantry and armored units. He contends that his service-connected degenerative disc disease of the lumbar spine with left sacroiliac joint dysfunction is more severe than is contemplated in the initially assigned ratings. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, if there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. The Board also observes that disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, supra. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. In the instant case, a September 2006 rating decision granted service connection for degenerative disc disease L5-S1 and left sacroiliac joint dysfunction and assigned an initial 10 percent rating, effective April 16, 2001 pursuant to Diagnostic Code 5010-5242. The Veteran appealed with respect to the initially assigned rating. During the course of the appeal, a May 2012 rating decision increased the Veteran's rating for his back disability to 20 percent, effective August 4, 2011, pursuant to Diagnostic Code 5010-5242, and assigned separate 20 percent ratings for moderate radiculopathy of the right and left lower extremities, effective August 4, 2011, pursuant to Diagnostic Code 8520. For the entirety of the appeal period, 38 C.F.R. § 4.71a , Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a , Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The regulations for rating disabilities of the spine were twice revised during the pendency of the Veteran's claim (i.e., since April 16, 2001), effective September 23, 2002, and September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies. Only the former criteria can be applied for the period prior to the effective date of the new criteria. However, both the old and new criteria can be applied as of that date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); see also 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. The RO has notified the Veteran of all applicable regulatory changes and considered his claim under such regulations. Therefore, there is no prejudice to him in the Board considering all applicable diagnostic codes. Prior to September 23, 2002, intervertebral disc syndrome warranted a 10 percent rating for mild symptoms; a 20 percent rating for moderate symptoms with recurring attacks; and a 40 percent rating for severe symptoms, with recurring attacks and with intermittent relief. A 60 percent rating was warranted when the intervertebral disc syndrome was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. There was no higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Effective September 23, 2002, intervertebral disc syndrome is rated under the same criteria as now provided in Diagnostic Code 5243 discussed below. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003), (2012). Prior to September 2003, lumbosacral strain warranted a 10 percent rating if there was characteristic pain on motion. A 20 percent rating was warranted for muscle spasms on extreme forward bending and unilateral loss of spine motion in the standing position. A 40 percent rating was warranted if symptoms were severe, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). Also prior to September 2003, limitation of motion of the lumbar spine warranted a 10 percent rating if mild, 20 percent if moderate, and 40 percent if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Effective September 26, 2003, the regulations for rating disabilities of the spine were revised, and the diagnostic codes were reclassified. These reclassified diagnostic codes include 5237 (lumbosacral or cervical strain), 5242 (degenerative arthritis of the spine), and 5243 (intervertebral disc syndrome). The code for intervertebral disc syndrome (Diagnostic Code 5243) permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. Lumbosacral strain and degenerative arthritis of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine. 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 Formula provides for ratings as follows. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more body height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. Associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1. Normal ranges of motion for the lumbar spine are 90 degrees flexion, and 30 degrees extension, lateral flexion, and rotation. 38 C.F.R. § 4.71a, Plate V (2010). Intervertebral disc syndrome permits evaluation under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, as there is no evidence of incapacitating episodes as defined by VA regulations, these criteria do not apply. As indicated previously, the Veteran's disability also involves partial paralysis of the sciatic nerve of the bilateral legs. In this regard, effective August 4, 2011, the Veteran was assigned separate 20 percent ratings for moderate radiclopathy of the right and left lower extremities pursuant to DC 8520. Such diagnostic code addresses the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted where there is moderate incomplete paralysis. A 30 percent rating is assigned for severe incomplete paralysis, and a 40 percent rating is for application where there is severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for foot drop and no active movement below the knee. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124a. As noted, in applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. At the time of the Veteran's April 2001 claim, he reported increased pain radiating to the left leg and foot with decreased range of spinal motion and an inability to sit or stand for extended period of time. In March 2001, a VA physician noted that the Veteran was working full time as a janitor scrubbing floors with a machine. The Veteran reported episodic low back pain radiating to the left iliac crest and down the left leg. The Veteran reported leg weakness and stumbling but no bowel or bladder dysfunction. Lumbar flexion and bilateral "glide" was full and painless but extension was "painful, blocked." The physician diagnosed piriformis syndrome on the left (compression of the sciatic nerve by the piriformis muscle). In June 2001, a magnetic resonance image showed degenerative changes at L5-S1 and disc bulging at three levels with no stenosis or nerve impingement. In August 2001, a private chiropractor noted the magnetic resonance image results and additional concurrent X-rays that showed misalignment and degenerative disease at several levels. The chiropractor observed normal flexion but mild to moderate limitations of motion in other directions. The Veteran underwent a course of physical therapy. In March 2002, a VA physician noted the Veteran's reports of continued low back pain radiating to the left leg that was progressively interfering with his janitorial duties with additional pain on lifting and bending while moving furniture. On examination, the physician noted tenderness in the lumbosacral area with markedly limited range of motion especially in flexion. There was no loss of muscle bulk or tone and no weakness. The physician diagnosed chronic lumbago with disc degeneration, administered an injection, and advised weight loss. In statements in March 2003, the Veteran, his spouse, and his mother noted that the Veteran had missed eight weeks of work because of back pain. He also experienced falls that he attributed to left leg weakness. On August 18, 2003, the Veteran's private physician noted that the Veteran continued to work full time cleaning floors at a hospital. In the recent past, he received several spinal injections and used a variety of pain medications with some relief. He continued to experience left side radiating pain and foot numbness but no foot drop. Range of motion was 60 degrees flexion and 20 degrees extension. Motor strength was normal, but there was some loss of lower extremity reflexes and sensation to pinprick. The physician noted left hip scouring and sacroiliac loading. In September 2003, the Veteran underwent electrodiagnostic testing at a private clinic. The Veteran reported increased low back pain and tingling of the left foot but denied leg weakness, bowel or bladder dysfunction. An examiner noted no loss of lower extremity sensitivity, strength, or leg length discrepancy. Electrodiagnostic studies were all normal with no indications of radiculopathy. After review of the test results, the private physician diagnosed mechanical low back pain due to SI joint dysfunction. In a December 2003 Board hearing, the Veteran testified on the etiology of his lumbar spine injury but did not discuss his current symptoms or limitations. In September 2004, the Veteran's employer authorized a rolling program of unpaid medical leave throughout the year, and the Veteran reported missing nine workdays over six months because of back pain. He also reported drowsiness at work caused by pain medication. In September 2005, a VA physician noted a review of the claims file and summarized the history of the lumbar spine disorder. The Veteran reported that he continued to work 60 to 70 hours per week but missed work occasionally because of back pain and flare-up pain four to five times per week. In a February 2006 statement, the Veteran corrected the work regimen to 60-70 hours biweekly. The Veteran did not use a cane and no longer used a back brace because it did not provide any benefit. On examination, the physician noted no abnormal gait or posture and no muscle spasms. Range of motion was 70 degrees flexion, 25 degrees extension, 25 degrees bidirectional lateral flexion, and 30 degrees bidirectional rotation with increased pain on motion. There was no additional loss of function on repetition, but the physician expected some unquantifiable loss during a flare-up. The combined range of motion was 200 degrees. Concurrent X-rays were normal, but the physician noted the inconsistency with earlier imaging studies. The physician diagnosed degenerative disc disease and left sacroiliac joint dysfunction. In May 2006, the Board granted service connection for a low back disability, and in June 2006, the RO assigned a 10 percent rating under Diagnostic Code 5010-5242. Although the RO cited both the older and new criteria, the RO assigned the rating based on the most recent VA examination report of flexion to 70 degrees under the new criteria. In a November 2006 notice of disagreement with the assigned rating and in a July 2007 substantive appeal, the Veteran noted that he was using several medications for muscle spasms that that the medications affected his range of spinal motion. The Veteran underwent several disability evaluations associated with a claim for SSA benefits. In a May 2007 functional capacity assessment, a physician noted that the Veteran's reported symptoms were only partially credible. The Veteran's back pain was reasonable in view of the imaging study indications of degenerative spinal disease, but the claim of an inability to work was not consistent with his reported ability to cook, clean, and drive. In a September 2007 assessment, the Veteran reported that he continued to work as a janitor but experienced increasing pain aggravated by bending, stooping, or lifting. On examination, the physician noted a normal gait and posture. Range of motion was measured passively as 37 degrees flexion, 10 degrees extension, and 11 degrees bidirectional lateral flexion. A March 2007 magnetic resonance image showed slight grade I anterolisthesis of L5 on S1 with slight disc protrusion but no nerve impingement. An X-ray in September 2007 showed mild to moderate facet arthritis on the left at L5-S1 but otherwise negative for degenerative or posttraumatic changes. The physician also concluded that the Veteran's subjective complaints were out of proportion to the objective evidence. In statements in November 2007, the Veteran, a pastor, and two family members reported that the Veteran missed or left early from work and had to sleep in a chair because of back pain. The Veteran reported that SSA denied disability benefits. In a November 2007 VA examination, a VA physician's assistant (PA) did not have access to the claims file but accurately summarized the history and noted the results of the imaging studies earlier in the year. The physician noted the Veteran's reports of his left leg giving way on several occasions, the need to use machinery for support when working, and drowsiness at work caused by pain medication. He reported constant moderate pain with severe flare-ups four times per week that included spasms and left leg radiating pain. The Veteran reported that the symptoms were negatively affecting his work evaluations. The PA observed an erect posture and slow gait with no support devices. There was some loss of lower leg reflex but no loss of sensation or muscle atrophy. Range of motion was very limited, but measurements were inaccurate because of suboptimal effort. The PA concluded that the subjective complaints were inconsistent with the objective evidence. In May 2011 and July 2011, the Veteran reported that he had been working part time for 22 hours per week but ceased work in September 2010 because of his low back disability. This information was later confirmed by his employer in June 2012. The Veteran also noted that consideration should be afforded to the length of time he experienced the disability and its impact on his employment. He further reported that he was using a cane and experienced constipation from the pain medication. In the July 2011 remand, the Board noted the previous inconsistent and suboptimal evaluations and remanded the claim to afford the Veteran the opportunity to submit additional evidence and to obtain a current VA examination. On August 4, 2011, a VA physician noted a review of the claims file and accurately summarized the history of symptoms, imaging studies, and diagnoses. The Veteran reported that he no longer worked, could walk up to about four blocks, but did not perform housework or drive an automobile. He was able to dress and eat but needed assistance rising from a bath tub. The physician noted a normal posture but an antalgic gait. The Veteran used a cane and knee brace for ambulation. He continued to experience chronic back pain with severe flare-ups and interrupted sleep. The Veteran denied any episodes of incapacitation requiring bed rest in the previous twelve months. Range of motion was 65 degrees flexion with pain starting at 60 degrees, 20 degrees extension with pain starting at 15 degrees, and bidirectional lateral flexion and rotation of 20 degrees with pain starting at 15 degrees. After three repetitions there was additional reduction of range of motion to 60, 15 and 15 degrees respectively caused by pain, fatigue and incoordination. The physician observed guarding and muscle spasms that did not result in an abnormal gait or spinal contour. The most limiting combined range of motion was 135 degrees. Reflexes, sensation, and muscle strength of the lower extremities were all normal. However, the physician noted severe radiculopathy and moderate parethesias and numbness of both lower extremities indicating nerve root impingement. The physician referred to the 2007 imaging studies and diagnosed degenerative disc disease and spondylosis at L5-S1 and bilateral motor and sensory radiculopathy with moderate functional limitations. The physician noted that the Veteran was not precluded from sedentary employment because of the service-connected disabilities. In May 2012, the RO granted and increased rating of 20 percent for degenerative disc disease of the lumbar spine and granted service connection and 20 percent ratings each for radiculopathy of the bilateral lower extremities under Diagnostic Code 8520, all effective on August 4, 2011, the date of the most recent VA examination. The Board concludes that an initial rating of 20 percent, but not higher, is warranted for degenerative disc disease of the lumbar spine with left sacroiliac joint dysfunction for the entire period of time covered by this appeal. Specifically, the Board finds that such disability results in functional loss that more nearly approximates no more than moderate limitation of motion, i.e., forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, due to pain, fatigue, incoordination, tenderness, and flare-ups, without lumbosacral strain with muscle spasms on extreme forward bending and unilateral loss of spine motion in the standing position or severe symptoms, recurring attacks, or incapacitating episodes. Therefore, the Veteran is entitled to a 20 percent rating based on functional loss resulting in moderate limitation of motion, i.e., forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. In this regard, the Board acknowledges that there are three sets of rating criteria that may be applied in the instant case. First, with respect to the rating criteria governing intervertebral disc syndrome, as in effect prior to September 2002, while the Veteran has a back disability with documented disc involvement, there is no evidence that such results in intervertebral disc syndrome with recurring attacks. In this regard, the rating criteria under Diagnostic Code 5293 specifically considers neurological impairment associated with such disability; however, in the instant case, there is no confirmed evidence of neurological impairment prior to August 2011. Furthermore, there is no evidence that the Veteran's back disability results in "recurring attacks." Relevant to the rating criteria governing intervertebral disc syndrome as in effect as of September 2002 and September 2003, which is essentially the same, a higher rating for intervertebral disc syndrome is not warranted because the Veteran's symptoms did not require best rest ordered by a physician with treatment by a physician. Moreover, as of August 2011, as there was confirmed evidence of radiculopathy, the Veteran was assigned separate ratings for his neurological impairment. However, pertinent to the rating criteria in effect prior to September 2003, the Board finds that a 20 percent rating for moderate limitation of lumbar spine motion is warranted under Diagnostic Code 5292. Specifically, while ranges of motion of the spine were not well quantified prior to August 2003, one examiner noted normal flexion but "blocked" extension. A chiropractor also noted normal flexion but mild to moderate limitation in other directions. In March 2002, a VA physician characterized the limitation as "marked" especially in flexion. The earliest measurement of thoracolumbar flexion was in August 2003 when flexion was noted as 60 degrees. When the new criteria became effective in September 2003, such limitation of flexion also warranted a 20 percent rating under Diagnostic Code 5242 because the limitation was greater than 30 degrees but not greater than 60 degrees. The Board acknowledges that subsequent measurements were 70 degrees and 37 degrees with the most recent measurement in August 2011 of 60 degrees after repetition. Considering the Veteran's progressive deterioration in work endurance, continued pain with flare-ups, and supporting pathology, the Board concludes that a 20 percent rating best contemplates the Veteran's level of disability under both the old and new criteria. Higher ratings under the old or new criteria for limitation of motion are not warranted as the limitation of flexion was not severe in the earlier years nor less than 30 degrees after the new criteria became effective. In reaching such determination, the Board finds that the Veteran's back symptomatology, to include pain, fatigue, incoordination, tenderness, and flare-ups, does not result in functional loss that more nearly approximates such limitation of motion. The Board has considered whether a higher or separate rating under Diagnostic Code 5295 (2003) referable to lumbosacral strain is warranted; however, as the Veteran's back disability did not result in spasms on extreme forward bending and unilateral loss of spine motion in the standing position or severe symptoms with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, such Diagnostic Code is not applicable. As of September 2002 (and thereafter, to include as a result of the regulation changes in September 2003), separate ratings for orthopedic and neurologic impairments are available. However, prior to August 4, 2011, the Board finds that the Veteran's degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction did not result in neurological impairment. In this regard, while the Veteran complained of pain radiating to his legs, weakness in his legs, and, in August 2003, there was some loss of lower extremity reflexes and sensation to pinprick, objective testing, to include magnetic resonance imaging in June 2001 and March 2007, electrodiagnostic studies in September 2003, revealed no nerve impingement and no evidence of radiculopathy. Moreover, for the entire appeal period, the evidence fails to show, and the Veteran has not contended otherwise, bowel or bladder impairment. Additionally, as of August 4, 2011, the Veteran's degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction resulted in no more than moderate incomplete paralysis of the left and right sciatic nerves without evidence of additional neurological impairment. In this regard, while the August 2011 VA examiner indicated that the Veteran had severe radiculopathy, such description is in contradiction to the physical findings and the examiner's ultimate conclusion. Specifically, only moderate parethesias and numbness of both lower extremities was found. Moreover, reflexes, sensation, and muscle strength of the lower extremities were normal on examination. Furthermore, the examiner concluded that the Veteran's disability, to include his bilateral radiculopathy resulted in only moderate functional limitations. Therefore, ratings in excess of 20 percent for radiculopathy of the left and right lower extremities are not warranted. In conclusion, the Board finds that an initial rating of 20 percent, but no higher, for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction is warranted for the entire appeal period. In making its determinations in this case, the Board has also carefully considered the Veteran's contentions with respect to the nature of his service-connected back disability, to include the associated radiculopathy of the bilateral lower extremities, and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities. The Board concludes that the Veteran and his friends and relatives are competent to report on the symptoms that are observable to a lay person. In this regard, such history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran's testimony, as well as that of the other lay witnesses, with regard to the matters they are competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected back disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected back disability with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. In this regard, the Veteran's 20 percent rating for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction contemplates pain, fatigue, incoordination, tenderness, and flare-ups, and loss of motion. Moreover, as of August 4, 2011, the date where there was confirmed evidence of radiculopathy, he was assigned separate 20 percent ratings for the symptoms associated with such disabilities. There are no additional symptoms of the Veteran's back disability that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of the issues decided herein for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). As indicated in the Introduction, in Rice, supra, the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. However, as the Veteran's TDIU claim is being remanded for additional development, no further discussion of such is necessary at this time. In conclusion, the Board finds that the criteria for an initial rating of 20 percent, but no higher, for the entire appeal period for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction have been met. In denying such a higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER For the entire appeal period, an initial rating of 20 percent, but no higher, for degenerative disc disease at L5-S1 with left sacroiliac joint dysfunction is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND In an August 2012 rating decision, the RO denied service connection for degenerative joint disease of the cervical spine, left knee osteoarthritis, right knee osteoarthritis, a peptic ulcer, and GERD. The Veteran expressed timely disagreement in September 2012. A statement of the case has not been issued for these claimed disabilities. When there has been an initial AOJ adjudication of a claim and a timely notice of disagreement, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26 (2012). Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). As indicated previously, the issue of entitlement to a TDIU is deemed already on appeal as a component of the increased rating claim appealed to the Board. See Rice, supra. However, the aforementioned service connection claims remain pending and may affect his eligibility for a TDIU. The Board thus finds that the claim of entitlement to a TDIU is inextricably intertwined with the claims which are being remanded by the Board. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Therefore, consideration of this claim is deferred. Accordingly, the case is REMANDED for the following action: 1. Provide to the Veteran and his representative a statement of the case for the claims for service connection for degenerative disc disease of the cervical spine, left knee osteoarthritis, right knee osteoarthritis, a peptic ulcer, and gastroesophageal reflux disease, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on those issues. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for a TDIU should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs