Citation Nr: 1321744 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 07-26 071 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for the period from May 12, 2005 to April 4, 2011, and in excess of 20 percent beginning April 4, 2011 for lumbar spinal pain with degenerative disc disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from March 2003 to February 2004, including service in Iraq. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for the Veteran's low back disorder and assigned a 10 percent disability rating, effective May 12, 2005, the date of the Veteran's claim. In May 2011, the Board remanded the Veteran's claim for additional development. In a June 2012 rating decision, the RO increased the rating for the Veteran's lumbar spine disorder to 20 percent, effective April 4, 2011. Since he is presumed to be seeking the maximum benefits available under the law for the appealed issue and he did not express satisfaction with the rating, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the June 2012 rating decision also granted service connection for neurological impairment of the left lower extremity associated with disc protrusion and assigned a 0 percent (noncompensable) rating under Diagnostic Code 8527, effective April 4, 2011. When a separate rating was assigned for disc protrusion, the AMC/RO recharacterized the issue on the appeal as lumbar spinal pain with degenerative disc disease. The Veteran has also been awarded a separate 20 percent rating for urinary frequency associated with his service-connected low back disorder, effective from April 4, 2011. The Veteran has not appealed the ratings assigned for his left lower extremity and urinary frequency. In the Board's remand of March 2011, it was noted that the issue of entitlement to service connection for a skin disorder, to include as due to undiagnosed illness, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The matter was referred to the RO for appropriate action, but no action appears to have been taken. Since the Board does not have jurisdiction over it and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to April 4, 2011, the service-connected low back disability was manifested by complaints of pain, weakness, stiffness, and infrequent flare-ups with objective evidence of forward flexion of the lumbar spine limited to 90 degrees; there was no evidence of a combined limitation of motion of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Beginning April 4, 2011, the service-connected low back disability was manifested by complaints of constant pain, painful motion, frequent and severe flare-ups, limited ambulation, and objective evidence of limitation of motion in forward flexion that met or approximated limitation to 30 degrees or less; there was no evidence of ankylosis of the thoracolumbar spine or associated neurological manifestation in the right lower extremity. CONCLUSIONS OF LAW 1. Prior to April 4, 2011, the criteria are not met for an initial rating in excess of 10 percent for the lumbar spine disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes (Codes) 5235-5243 (2012). 2. From April 4, 2011, the criteria for an initial rating of 40 percent, but no higher, are met for the lumbar spine disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), Codes 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the January 2006 rating decision on appeal granted service connection for a low back disability, and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A July 2007 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating. A June 2012 supplemental SOC (SSOC) readjudicated the matter after further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Regardless, the Veteran was provided VCAA notice by letters dated in May 2005, September 2005, and August 2006. The Veteran's pertinent treatment records have been secured. VA and non-VA treatment records have been obtained and associated with the record. The RO arranged for VA examinations in October 2005, April 2011, and March 2012 that are deemed to be adequate for rating purposes. See Barr v. Nicholson, 21. Vet. App. 303 (2007); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Thus, VA's duty is met. The RO complied with the Board's May 2011 remand in that the Veteran's updated VA treatment records were obtained, efforts were undertaken to obtain his private treatment records, and he was afforded two VA examinations. The duties to notify and assist have been satisfied. Legal Criteria and Analysis for a Higher Initial Rating for a Low Back Disability Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Here, staged ratings have been assigned by the RO. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In this regard, the Board notes that when, after careful consideration of all the procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40 , 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). In assessing the appropriateness of the ratings for the disability at issue, the Board has reviewed all of the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, however, it need not discuss each piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning these claims. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him or her. Id. The Veteran's service-connected low back disability is rated under Code 5237, lumbosacral strain. This disability may be rated under the General Rating Formula for Diseases and Injuries of the Spine set forth in 38 C.F.R. § 4.71a, Codes 5235-5243. Under this General Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of his thoracolumbar (thoracic and lumbar) spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and an even higher and maximum 100 percent rating requires unfavorable ankylosis of her entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees; backward extension is from 0 to 30 degrees; left and right lateral flexion (side bending) is from 0 to 30 degrees; and left and right rotation (twisting to each side) is from 0 to 30 degrees. See Note (2) in Codes 5235-5242, also referencing 38 C.F.R. § 4.71a, Plate V. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Note (5) in Codes 5235-5242 further explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The Veteran's lumbar spine disability also may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes found in Diagnostic Code 5243. IVDS is evaluated either on the total duration of incapacitating episodes over the past twelve months, so year, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation. Diagnostic Code 5243 provides a 10 percent rating when there are incapacitating episodes having a total duration of at least one but less than two weeks during the past 12 months. A 20 percent rating is assigned there are incapacitating episodes having a total duration of at least two but less than four weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least four but less than six weeks per year. A maximum 60 percent rating is available when there are incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. Note (1) in Code 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. Note (1) in the General Rating Formula also specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. A May 2005 VA treatment record notes the Veteran reported his back "locked up" and he had occasional back pain that was alleviated by medication. The assessment was degenerative joint disease with degeneration of intervertebral discs. On October 2005 VA examination, the Veteran reported his low back disability responded fairly well to medication and ice. The only side effect was that the muscle relaxants made him sleepy. He had not had surgery associated with the disability and there were no associated bowel or bladder problems, paresthesias, falls, or unsteadiness. He reported having flare-ups that lasted 2 to 3 days that were moderate in severity and occurred every 5 to 6 months. Precipitating factors included bending and alleviating factors were medication, heat, and rest. Additional symptoms included mild fatigue, decreased motions, stiffness, weakness, and spasms. His low back pain radiated to his right hip and included a stinging sensation. Pain was moderate in severity and occurred occasionally. He used a brace but there was no limitation in walking. On physical examination, the VA examiner noted that the Veteran's posture and gait were normal, and there was no evidence of abnormal spine curvature or thoracolumbar ankylosis. There was also no evidence of spasm, atrophy, guarding, pain with motion, tenderness, or weakness. Range of motion studies revealed forward flexion from 0 degrees to 90 degrees, extension from 0 degrees to 15 degrees, left lateral flexion from 0 to 30 degrees with pain beginning at the end range, right lateral flexion from 0 degrees to 35 degrees with pain beginning at the end range, left lateral rotation from 0 degrees to 18 degrees with pain at the end range, and right lateral rotation from 0 to 20 degrees. There was no additional limitation of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance. The motor examination revealed active movement against full resistance in the lower extremities and sensory and reflex testing was normal. X-rays revealed no abnormality. The effects on daily activities were mild for chores, shopping, recreation, and traveling, and moderate for exercise and sports. There was no impact on feeding, bathing, dressing, toileting, or grooming. He avoided bending, lifting, running, and quick movements to avoid flare-ups. In March 2006, the Veteran reported having some low back pain and right buttock aching with prolonged standing or when he ran; otherwise, he was well most of the time. His pattern of symptoms waxed and waned but had essentially been stable. He would have mild discomfort for up to 3 months before experiencing a more severe flare-up. Ibuprofen significantly relieved his symptoms. A June 2006 telephone contact record shows the Veteran reported having severe back pain and he was unable to get out of bed. He was advised to go the emergency room if his symptoms worsened or if he had trouble controlling his bowels or bladder. A July 2006 VA treatment records indicate the Veteran had a recent flare-ups of low back pain that resolved. The record indicated that running triggered his flare-ups. It was also noted that after his original back injury in November 2003, he was having numbness in both legs, but no radicular pain. This numbness resolved completely after about two months and the Veteran had no weakness in his legs and no sphincter symptoms. A July 2007 VA treatment record shows the Veteran reported having an increased number for flare-ups in low back pain; these episodes occurred twice a month. A July 2008 private treatment record indicates the Veteran's main complaint was low back pain at the waistline. His flare-ups were typical for a man of his age with disc degeneration, which included severe stabbing back pain with light motions and perhaps a small bend at the waist or light twist or stepping up a small height. He did not have symptoms of significant nerve irritation and he did not have any significant lasting L5 symptoms. There was also no foreleg weakness. Surgery was not recommended. Chiropractic records from August to November 2009 note the Veteran's complaints of low back pain with episodic flare-ups a couple of times a month, usually when engaged in sports or riding in his police car. During these episodes he was unable to straighten himself up. His low back pain was generally moderate and estimated as 4-5/10 in severity. In October and November 2009, the severity of low back pain improved to 2/10. He reported having radiation to the right lower extremity but no weakness or bowel/bladder changes. Neurologically, he was intact. There was moderate muscle rigidity and tenderness of the lumbar paravertebral soft tissue and inflammation over the right lumbosacral spine. There was also reduced lumbar range of motion with increased pain on extension and right lateral bending. There was stiffness throughout the ranges and a positive straight leg raise test at 45 degrees on the right for lower back and radicular complaints. X-rays revealed degenerative disc disease at L5-S1 and hyperlordosis. In August 2009, the chiropractor diagnosed lumbar disc displacement with radiculopathy. Neurological examination at that time showed normal peripheral sensation to pinprick; normal vibratory perception and proprioception; no atrophy in the lower extremity muscle groups; and deep tendon reflexes of 2+ in the knees and ankles. A September 2010 private treatment record indicates the Veteran had flare-ups every 3 weeks for the past 8 months. The pain radiated to the right buttock. Chiropractic treatment worsened the pain. He wore a tight brace and performed back exercises that provided some improvement. The Veteran did not complain of numbness, or tingling, but he indicated there was weakness in both legs that was aggravated by standing or running. There was no bowel or urinary incontinence, the bilateral straight leg raise test was negative, and muscle strength in each leg was 5/5. A current MRI was compared to a prior MRI in July 2008. The impression was at L5-S1, that there was a small right paracentral disc protrusion with mild to moderate associated right lateral recess narrowing that crowded the traversing right S1 nerve root; impingement was not excluded; there was no change found. There was also mild to moderate right neural foraminal narrowing at this level that crowded the right L5 nerve root, which was also unchanged. A very small disc protrusion and annular tear at the S1-2 disc without associated stenosis or impingement was unchanged. There was a transitional segment at the lumbosacral junction that was termed a partially lumbarized S1. On April 2011 VA examination, the Veteran indicated that his low back disability was treated with medication and therapy; the response to treatment was poor. Flare-ups occurred when his job required more aggressive movement. These episodes were severe, occurred every 2 to 3 weeks, and lasted for 3 to 7 days. During these times the Veteran was bedridden and stayed off his feet. The Veteran did have some urinary incontinence, erectile dysfunction, leg or foot weakness, falls, and unsteadiness unrelated to back disability except for falls, which the Veteran stated was caused by back pain, and bilateral leg weakness. There was a history of fatigue, decreased motion, stiffness, weakness, spasm, and spine pain. These occurred getting in and out of a car and when he performed responsibilities as a police officer. He reported having a radiation of pain and numbness in his right hip and legs. He wore a back brace and was limited to walking 1/4 mile. On physical examination, the examiner noted that the Veteran's pelvis tilted to the right and his body shifted slightly to the left. His gait was normal and scoliosis was noted. Ankylosis of the thoracolumbar spine was not found. There was bilateral muscle spasm, guarding, and tenderness but there was no atrophy, pain with motion, or weakness. The muscle spasm, localized tenderness, or guarding, was not severe enough to be responsible for the abnormal spinal contour. Reflex and sensory testing was normal. Past MRI findings revealed right paracentral disc protrusion at L4-5 superimposed on a diffuse disc bulge. Mild impingement of the descending right L5 nerve root was suspected. There was asymmetric disc bulge at L5-S1 with an associated small annular tear. Although no focal protrusion was present, the focal disc bulge resulted in a mild degree of right S1 neural impingement. On VA examination, range of motion studies revealed active flexion from 0 degrees to 40 degrees with pain throughout the range; on repetitive motion, there was additional limitation to 34 degrees of flexion due to pain. Active extension was from 0 degrees to 6 degrees with pain throughout the entire range; there was no additional limitation with repetitive motion. Active left lateral flexion was from 0 degrees to 11 degrees with pain throughout the entire range; there was no additional limitation with repetitive motion. Active right lateral flexion was from 0 degrees to 13 degrees with pain throughout the entire range; there was no additional limitation with repetitive motion. Active left rotation was from 0 degrees to 4 degrees with pain throughout the entire range; there was additional limitation to 2 degrees of right rotation with repetitive motion due to pain. The VA examiner noted that the Veteran's usual occupation was police officer. His lumbar disability resulted in increased absenteeism, and a limitation in supplies he carried on his duty belt, which jeopardized his and his partner's safety. The effect on daily activities was moderate for traveling, driving, recreation, grooming, and toileting; it prevented chores and sports. On March 2012 VA examination, the Veteran reported having daily low back pain with severe pain 3 to 4 times a month. Pain was exacerbated by heavy lifting and carrying, and he denied having neurological symptoms such as bowel or bladder dysfunction or radiating pain; he reported having occasional urinary detention which his primary physician told him this was due to an enlarged prostate. He reported occasionally having slight numbness in his left thigh that radiated to his foot; it only lasted for a couple of hours but it made his leg weak. He stated that he did not have any other symptoms other than his back hurting all the time. The VA examination of the lumbosacral spine revealed active flexion from 0 degrees to 16 degrees with pain throughout the entire range, and there was no additional limitation on repetitive use. Active extension was to 0 degrees with pain; he was unable to perform multiple repetitions due to pain. Bilateral lateral flexion was from 0 degrees to 10 degrees with pain throughout the entire range; he was unable to perform multiple repetitions due to pain. The Veteran reported he was unable to perform bilateral rotation due to pain. The examiner noted that neurological tests indicated that the Veteran had chronic lower back pain without any clinical evidence of radiculopathy. The Veteran worked full-time as a police officer and did not lose any time from work during the past 12 months due to his disability. A March 2012 VA neurology consult indicates the Veteran was referred by the VA examiner. His medical history was noted and the purpose of the examination was to determine the presence or absence of neurological deficit in relation to his low back pain. The neurologist noted the Veteran had normal muscle strength in all 4 extremities, proximal and distal. There was no atrophy or faciculations. There was a stocking-glove distribution to pain and vibration in the 4 extremities. He was able to feel well the position and vibration in the toes. There was no sensory deficit in a radiculopathic pattern in the lower extremities or upper extremities, which ruled out any type of radiculopathy in the lower back. There was no lumbar or sacral radiculopathy. The straight leg raise test was normal and there was no pain in the small or large joints in the small or large joints in both lower extremities or in the sacroiliac large joints in the upper extremities. The Veteran walked without major difficulties and his tandem gait was normal. The distal symmetric sensory distributed polyneuropathy was of unknown etiology. As noted previously, a January 2006 rating decision established service connection for the Veteran's low back disability, which was rated 10 percent disabling effective May 12, 2005, the date the claim was received. A subsequent rating decision assigned a higher rating of 20 percent, effective April 4, 2011, and thereby created an initial stated rating. See Fenderson, supra. Even though the low back disability, which was originally characterized as L4-5 herniation with possible right L5 nerve root impingement and L5-S1 mild broad based bulge, was recharacterized in the June 2011 rating decision as lumbar spinal pain with degenerative disc disease, but the disability continued to be rated under Code 5237. The Board finds that an initial rating in excess of 10 percent is not warranted for the low back disability prior to April 4, 2011. During the period from May 12, 2005 to April 4, 2011 VA examination, forward flexion of the lumbar spine was to 90 degrees. There was no additional limitation of motion on repetitive use due to pain, fatigue, weakness, or lack of endurance. Additional associated symptoms, such as pain, flare-ups, and weakness were primarily mild and infrequent with some episodes of moderate symptoms. The combined range of low back motion demonstrated on the October 2005 VA examination exceeded 120 degrees, and there was no evidence of abnormal spine curvature or gait. The preponderance of the evidence is against finding the disability at issue may be assigned a rating in excess of 10 percent prior to April 4, 2011. The Board finds that a higher rating is warranted for the low back disability beginning on April 4, 2011. The March 2012 VA examination findings clearly demonstrate the criteria for a 40 percent are met as forward flexion was limited to 16 degrees. And prior to that on VA examination in April 2011, the Veteran had forward flexion to only 34 degrees after repetitive use. The overall disability picture more closely resembles the criteria for a 40 percent beginning as of the April 2011 VA examination. See 38 C.F.R. § 4.7. Forward flexion was limited to 34 degrees on repetitive use, and when other factors were considered such as the frequency and severity of flare-ups, use of a back brace, and limitation in walking distance to 1/4 mile, and with reasonable doubt resolved in favor of the Veteran, the disability as likely as not approximated the criteria for a 40 percent rating. An even higher rating is not warranted for any orthopedic manifestations of the disability because the evidence does not show that there is unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The April 2011 and March 2012 VA examiners expressly found that there was no ankylosed spine. Alternately rating the disability based on incapacitating episodes would not result in a higher rating at any time during the appeal because even though the Veteran reported having some episodes of severe flare-ups that led to bed rest, the record contains no evidence that bed rest was prescribed by a physician at any time during the appellate period. The Board also considered whether a separate rating is warranted for any associated objective neurological abnormality. Since the Veteran has not appealed June 2012 rating decision that assigned a separate noncompensable rating for disc protrusion with nerve impingement of the left leg and a separate 20 percent rating for urinary frequency, both effective from April 4, 2011, the matter of higher ratings for those disabilities is not before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating the claimant must separately appeal for a higher rating and earlier effective date since these are "downstream" issues from the initial claim for service connection). Prior to April 4, 2011, the evidence did not support a finding of neurological impairment of the right or left lower extremity or bowel or bladder impairment; therefore, a separate rating for any such disability is not warranted prior to that time. For example, on October 2005 VA examination, there were no associated bowel or bladder problems or paresthesias. The motor examination revealed active movement against full resistance in the lower extremities and sensory and reflex testing was normal. In March 2006, the Veteran had no weakness in his legs and no sphincter symptoms. In July 2008, he did not have symptoms of significant nerve irritation and he did not have any significant lasting L5 symptoms. There was also no foreleg weakness. Although a chiropractor diagnosed lumbar disc displacement with radiculopathy in August 2009, neurological examination at that time was normal. There was normal peripheral sensation to pinprick; normal vibratory perception and proprioception; no atrophy in the lower extremity muscle groups; and deep tendon reflexes of 2+ in the knees and ankles. In September 2010, the Veteran did not complain of numbness or tingling, but he indicated there was weakness in both legs that was aggravated by standing or running. There was no bowel or urinary incontinence, the bilateral straight leg raise test was negative, and muscle strength in each leg was 5/5. With regard to the right lower extremity in particular, the Veteran had a few complaints but he was not shown to have any objective neurological deficits or radiculopathy stemming from the service-connected low back disability. See a September 2010 treatment and April 2012 treatment records and VA examinations in October 2005, April 2011, and March 2012. Thus, despite some subjective evidence, the competent medical evidence tends to show there is no objective neurologic abnormality associated with the service-connected low back disability and, therefore, a separate rating is not warranted for the right lower extremity at any time during the appeal, either prior to or after April 4, 2011. Extra-schedular The rating schedule represents, as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extra-schedular rating can be provided. 38 C.F.R. § 3.321(b). The Court recently clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. The Veteran's symptoms exhibited include pain, limitation of motion, flare-ups, and weakness, which are contemplated by the rating criteria, which reasonably describe the Veteran's disability. See 38 C.F.R. § 4.40, 4.45, 4.59. A July 2008 private treatment record indicates the Veteran's symptoms were typical. The Veteran's reported functional limitations, including pain on certain activities, are expected concomitants of the symptoms and pathology already compensated under the applicable schedular criteria, which are based on limitations of motion and excursion, as well as pain, weakness, and similar factors. Thus, such limitations are within the purview of the schedular criteria and have been considered in determining that the Veteran's lumbar spine disability more nearly meets the criteria for a higher rating. Indeed, the schedular criteria under all DCs and associated regulations ultimately have in view the functional effects contemplated by such criteria, whether or not such functional limitations are explicitly mentioned in them. See 38 C.F.R. § 4.1 (providing that the degrees of disability specified in the General Rating Criteria are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability); 38 C.F.R. § 4.2 (2012) (providing, in pertinent part, that in view of the number of atypical instances, it is not expected that all cases will show all the findings specified, but coordination of rating with impairment of function will be expected in all instances). Thus, the Veteran does not have symptoms, pathology, or functional limitations associated with his lumbar spine disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. As noted in Thun, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes. Id. at 115. Rather, the disability must be "exceptional" or "unusual." Consequently, the available schedular evaluations are adequate to rate this disability, and therefore the first Thun factor is not satisfied. In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. See id. ORDER Prior to April 4, 2011, an initial rating in excess of 10 percent for lumbar spinal pain with degenerative disc disease is denied. Beginning April 4, 2011, an initial rating of 40 percent for lumbar spinal pain with degenerative disc disease is granted, subject to the laws and regulations governing monetary awards. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs