Citation Nr: 1322093 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-12 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for avascular necrosis of the right hip, to include as secondary to service-connected lumbosacral strain with degenerative disc disease. 2. Entitlement to an increased rating for the orthopedic manifestations of a lumbosacral strain with degenerative disc disease, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from November 1977 to November 1980. This matter came to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2012, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In a September 2012 decision, the Board determined that new and material evidence had been received to reopen a previously denied claim of service connection for bilateral hearing loss. The Board remanded the underlying claim, as well the issues of entitlement to service connection for avascular necrosis of the right hip and an increased rating for lumbosacral strain with degenerative disc disease, to the RO for additional evidentiary development. While the matter was in remand status, in a February 2013 rating decision, the RO granted service connection for bilateral hearing loss and assigned an initial zero percent rating, effective March 7, 2008. The grant of service connection for this disability constitutes a full award of the benefits sought on appeal with respect to the claim of entitlement to service connection for bilateral hearing loss. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the appellant has disagreed with the initial rating or effective date assigned; thus, those matters are not in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Also in the February 2013 rating decision, the RO granted service connection for radiculopathy of the right and left lower extremities and assigned initial 10 percent disability ratings for each extremity, effective December 18, 2012. Again, absent any indication that the appellant has initiated an appeal with the downstream elements of initial rating or effective date, those matters are not before the Board. Id. The remaining issue concerning the evaluation of the back then concerns the orthopedic manifestations. The issue has been changed on the title page and the discussion herein is essentially limited to the orthopedic manifestations of the disorder. For the reasons set forth below, a remand is required with respect to the issue of entitlement to service connection for avascular necrosis of the right hip. This issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The appellant's service-connected lumbosacral strain with degenerative disc disease is manifested by complaints of constant pain with episodic flare-ups, as well as limitation of motion of the lumbar spine, including forward flexion most severely limited to 45 degrees. His service-connected low back disability is not shown to be manifested by incapacitating episodes of intervertebral disc syndrome totaling at least four weeks in any 12-month period, nor is his disability picture exceptional or unusual such that the schedular criteria are inadequate. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent rating for the orthopedic manifestations of the lumbosacral strain with degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In August 2009 and January 2010 letters, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). These letters included the additional notification requirements imposed by the U.S. Court of Appeals for Veterans Claims (Court) in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Since the issuance of these letters, the RO has reconsidered the appellant's claim, most recently in the February 2013 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In addition to the notice discussed above, at a conference held in connection with the January 2012 Board hearing, and during the hearing itself, the undersigned Veterans Law Judge discussed the issues on appeal with the appellant and his representative, including the type of evidence required in order to prevail in the claims. Questions designed to elicit evidence that may have been overlooked were asked and the Veteran and his representative had an opportunity to introduce evidence or pertinent argument. 38 C.F.R. § 3.103 (2012); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The appellant has not argued otherwise. The appellant's service treatment records are on file, as are all available post-service clinical records which the appellant has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2), (3). The appellant has also been afforded VA medical examinations in connection with his claim, most recently in December 2012. 38 C.F.R. § 3.159(c)(4). The Board finds that the examinations are adequate and contain sufficient reference to the pertinent schedular criteria. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The appellant has not argued otherwise. Sickels v. Shinseki, 643 F3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The Board also notes that the record does not show, nor has the appellant contended, that his service-connected lumbosacral strain with degenerative disc disease has increased in severity since the most recent examination was conducted. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Background The appellant's service treatment records show that he sought treatment for low back pain on multiple occasions, including in August 1979, after lifting a tool box; in January 1980, after reportedly falling approximately three feet and striking his back on a gun piece; and in June 1980, after falling over a bed and onto his back. Diagnoses included possible strain and bruise. In December 2002, the appellant submitted an original application for VA compensation benefits, seeking service connection for multiple disabilities, including residuals of a January 1980 back injury. In a March 2003 rating decision, the RO granted service connection for lumbosacral spine strain with degenerative disc disease and assigned an initial 10 percent disability rating, effective December 27, 2002. In August 2005, the appellant submitted a claim for a rating in excess of 10 percent for his service-connected low back disability. Based on the medical and other evidence obtained as part of this reopened claim, in an October 2007 rating decision, the RO increased the rating assigned for the appellant's service-connected lumbosacral spine strain with degenerative disc disease to 20 percent, effective August 18, 2006. The RO denied a total rating based on individual unemployability due to service-connected disabilities. This rating was not appealed and became final. In August 2009, the appellant submitted his most recent claim for an increased rating for his service-connected low back disability, claiming that he was experiencing constant pain, as well as limited motion and muscle spasm. He indicated that his disability had caused degradation in the quality of his life. In connection with his claim, the appellant was afforded a VA medical examination in September 2009. His complaints included constant back pain. He also claimed that he was limited to walking 200 yards or standing more than 20 minutes. He had a cane but tried not to use it. The appellant denied incapaciting episodes of intervetebral disc syndrome in the last 12 months. Examination showed spasm but the examiner indicated that it was not severe enough to cause an abnormal gait or abnormal spinal contour. The spine was normal in appearance and the appellant's gait was normal. Strength was normal with no atrophy. Sensation and reflexes were normal. There was no ankylosis. Range of motion testing showed flexion from zero to 45 degrees, although the examiner noted that the appellant had been able to sit in the examination room in a chair at 90 degrees with no evidence of pain. There was no additional loss of motion on repetitive use. Extension was from zero to 10 degrees due to the onset of pain but the examiner noted that the appellant exhibited a poor effort. Lateral flexion and rotation was from zero to 30 degrees without pain or additional loss of motion on repetitive use. The diagnosis was degenerative disc disease. The examiner noted that the appellant was not currently employed and claimed to have been fired from his previous job as a shipping clerk because he was unable to perform his duties. The examiner indicated, however, that it was his opinion that the appellant could probably perform whatever active or sedentary work he wished. He concluded that the appellant's disability had no effect on his ability to perform activities of daily living such as feeding, bathing, and dressing and caused only a mild impairment in his ability to perform activities such as chores, shopping, and exercise. In pertinent part, the record on appeal contains VA clinical records dated from July 2008 to October 2012 showing that the appellant was seen on multiple occasions during this period for various complaints, including low back pain. In May 2009, for example, he sought treatment claiming to have a flare-up of back pain. He indicated that his pain ranged from a 4 to 8 on a pain scale of 1 to 10. He denied radiation. Examination showed mild tenderness in the low back. In September 2009, the appellant sought treatment for low back pain. Examination showed a mild spasm but no deformity and straight leg raising was negative. The diagnosis was flare-up of back pain. In a November 2009 statement, the appellant indicated that he experienced severe spasms in his back which radiated to his legs and interfered with his sleep. He indicated that although some days were better than others, his constant back pain had limited some of his activities. The appellant was afforded another VA medical examination in January 2010. His complaints included mild to moderate back pain with episodes of severe flare-ups every three to six months. He indicated that he took pain medication and muscle relaxants with good results and no side effects. The appellant denied incapacitating episodes in the past 12 months. Examination showed an antalgic gait. Range of motion testing showed forward flexion to 50 degrees; extension to 20 degrees, left lateral flexion to 20 degrees; right lateral flexion to 15 degrees; left lateral rotation to 20 degrees; and right lateral rotation to 15 degrees. There was evidence of pain on motion but no decrease in motion after repetitive testing. There was spasm and guarding but no atrophy or wasting. The appellant exhibited an abnormal gait and spinal contour. Neurological examination was normal but for positive straight leg raising. The diagnosis was degenerative disease of the lumbosacral spine. In August 2010, the appellant submitted an application for a total rating based on individual unemployability due to service-connected disabilities, claiming that he had been unable to work since May 2010 due to his low back disability. Subsequent VA clinical records show that in December 2010, the appellant sought emergency treatment for multiple complaints, including chronic back pain for which he requested Percocet. He claimed that he was out of Percocet as he had accidentally dropped all of his pills in the sink. Objective examination showed no spinal point tenderness or paraspinal muscle spasm. Straight leg raising was adequate. The diagnosis was chronic low back pain. The appellant was counseled at length about narcotic use and advised that he could not receive another prescription. In a March 2011 statement, the appellant claimed that he was entitled to a 40 percent disability rating as he experienced forward flexion of his spine to 30 degrees of less as well as incapacitating episodes having a total duration of at least four weeks in the past year. He indicated, however, that he was unable to provide treatment records showing that his back disability required bed rest as he did not have health insurance and was unable to visit a physician. The appellant also claimed that he had limitation of motion, restricted activities, and increased functional impairment caused by pain during flare-ups. Additional VA clinical records show that in April 2011, the appellant sought emergency treatment for low back pain and muscle spasms. He claimed that he had a history of chronic low back pain and that the day prior, he began having low back spasms and pain radiating into both legs. He denied urinary incontinence and numbness or weakness to the extremities. He requested a shot of steroid. Examination showed muscle spasm with decreased range of motion especially of the lumbar spine. There was no point tenderness to the spinous processes or vertebral bodies. The assessment was chronic low back pain with sciatica symptoms. He was administered a shot of Toradol and Depo-Medrol. In June 2011, November 2011, and December 2011, the appellant visited the emergency room and requested a refill of his Percocet for back pain, stating that his prescription had not arrived in the mail. He was provided with medication. In January 2012, the appellant again presented to the emergency room and requested a refill of his Percocet for chronic back pain. The physician noted that records showed that this was the fourth time the appellant had come to the emergency room asking for additional refills. On the most recent occasion, he claimed that his suitcase had been stolen at the airport. He claimed that he had reported this to the authorities but that it would be a few days before he had any paperwork on the incident. The examiner noted that later in the conversation, the appellant claimed that his dosing is not strong enough and indicated that he was taking more than prescribed. He did not wish to discuss alternate chronic pain strategies. The examiner noted that, objectively, the appellant ambulated well with a full stride. He sat and arose with apparent ease and fluid movements. The examiner advised the appellant that he would not be refilling his medication through the emergency department. At his January 2012 Board hearing, the appellant testified that he took a significant amount of medication to treat his low back symptoms, including a muscle relaxer and pain medications. He indicated that he formerly received steroid shots, but had been advised that they were now contraindicated as they deteriorated his bones. He also indicated that he had been able to obtain temporary relief from physical therapy, massage, and applying heat and cold. The appellant estimated that he had missed about five days to two weeks of work every year over the past ten years due to his back pain. He indicated that he had not missed much time from his employment in the past year, however, as his job involved a lot of sitting and he wore a back brace. In February 2012, the appellant sought emergency treatment for chronic knee and back pain. He requested oxycodone. He reported that he had run out of his medication and it was taking some time for his refill to arrive through the mail. Upon chart review, the physician noted that the appellant had a history of multiple pain medication refills and taking more medication that prescribed. The assessment was chronic back pain. He was advised that he could not be prescribed additional medication. In March 2012, the appellant's back pain was noted to be progressive but stable. In August 2012, the appellant requested a back brace and TENS unit to help deal with chronic complaints of low back pain aggravated by sitting. He indicated that he had used bracing and TENS unit in the past and they worked well, but needed new equipment as it had "been a few years." Examination showed motion of the lumbar spine was limited by 25 percent in forward flexion and extension. It was within normal limits in all other planes. Strength was 5/5 throughout. The assessment was chronic, mechanical low back pain. The appellant was issued bracing and a TENS unit. The appellant underwent VA medical examination in December 2012. Range of motion testing showed flexion to 60 degrees, extension to 15 degrees, and lateral flexion and rotation to 20 degrees, bilaterally. The appellant reported pain throughout all ranges of motion. Repetitive testing did not result in additional loss of motion. The appellant reported functional loss, including pain on motion and interference with sitting, standing and weightbearing. Examination showed tenderness to palpation. There was no guarding or muscle spasm. The appellant exhibited decreased hip strength and atrophy in the lateral thigh muscles in the area of his total hip replacements. No loss of strength or atrophy in the low back was identified. Sensory examination was normal. Straight leg raising was negative. The appellant reported radicular pain. He denied periods of incapacitation over the past 12 months. The appellant indicated that he used a back brace and TENS unit regularly and occasionally used assistive devices for walking such as a cane. The diagnoses included lumbosacral sprain and degenerative disc disease. The examiner indicated that the appellant's low back disability affected his employment. He explained that the appellant worked for VA doing medical support assistance. His duties included lifting small files and paper boxes and that sitting longer than one hour or standing longer than 30 minutes increases functioning limiting back pain. Applicable Law 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. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see DeLuca v. Brown, 8 Vet. App. 202 (1995). The lumbar spine is considered a group of minor joints. 38 C.F.R. § 4.45(f). The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (pertaining to degenerative arthritis of the spine). That formula provides that with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Under Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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 (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. In addition to the General Rating Formula for Diseases and Injuries of the Spine, an intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the appellant's service-connected lumbosacral strain with degenerative disc disease for any period of the claim. As discussed in detail above, repeated range of motion testing conducted during the pendency of the claim has consistently shown that the appellant's thoracolumbar spine motion has never been limited to the extent necessary to meet the criteria for a schedular rating in excess of 20 percent as set forth in the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. For example, on VA examination in September 2009, forward flexion was to 45 degrees and the combined range of motion of the thoracolumbar spine was 175 degrees. On VA medical examination in January 2010, forward flexion was to 50 degrees and the combined range of motion of the thoracolumbar spine was 140 degrees. At the most recent VA medical examination in December 2012, forward flexion was to 60 and the combined range of motion of the thoracolumbar spine was 155 degrees. The Board has carefully reviewed the remaining claims folder in its entirety, but finds no other clinical evidence of record showing that the appellant's thoracolumbar spine motion has ever been limited to the extent necessary to warrant the assignment of a rating in excess of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5242, nor has the appellant identified any such evidence. Here, the Board notes that it has considered the appellant's March 2011 statement to the effect that he is entitled to a 40 percent disability rating as he experiences forward flexion of his spine to 30 degrees or less. The Board, however, concludes that the objective clinical evidence, which has consistently shown over repeated range of motion tests that the appellant's forward flexion exceeds 30 degrees, is entitled to far greater weight than to the bare assertions of the appellant which were offered in the context of a claim for monetary benefits. Although the limitation of motion criteria for a rating in excess of 20 percent as set forth in the applicable rating criteria have not been met, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, as well as the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). After considering the record, the Board finds that the evidence does not support the assignment of a rating in excess of 20 percent rating under these provisions. In that regard, the appellant has repeatedly reported that his low back disability is manifested by significant pain for which he takes pain medications, muscle relaxers, and steroid injections. The Court, however, has held that pain alone does not constitute a functional loss under VA regulations which evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that "the plain language of the regulation is unambiguous that, although pain may cause a functional loss, pain itself does not constitute functional loss"). Rather, in order to warrant a higher rating, the appellant's pain must be productive of functional loss, i.e. have some effect on the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Moreover, this must be objectively verified. In this case, the Board finds that the most probative evidence establishes that the appellant's low back disability is not objectively productive of additional range of motion loss due to pain or functional loss necessary to meet the criteria for a rating in excess of 20 percent. For example, at September 2009, January 2010, and December 2012 VA medical examinations, the appellant reported pain on motion but, as described above, the examiners identified the point at which pain began and those values have been considered in assigning the current rating. The examiners further concluded that the appellant exhibited no additional loss of motion on repetitive use. Although the appellant claims that his pain and functional loss increases with activities such as prolonged sitting and standing, the Board finds that such functional loss is contemplated in the current 20 percent rating and does not rise to the level of a 40 percent disability rating. The Board has reviewed the remaining evidence of record but finds no basis upon which to conclude that additional functional loss factors restrict motion to such an extent that the criteria for a rating in excess of 20 percent would be justified. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2011). In summary, although the Board has carefully considered the appellant's reports of pain and functional loss, there is an insufficient basis upon which to assign a rating in excess of 20 percent as the evidence shows that the appellant's pain is not productive of sufficient additional functional loss having some effect on the normal working movements of the body such as excursion, strength, speed, coordination, or endurance necessary to meet the Deluca factors for a rating in excess of 20 percent. The Board also observes that the record on appeal establishes that the appellant's service-connected low back disability has never been manifested by ankylosis or fixation of the spine, either favorable or unfavorable. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (defining ankylosis as fixation of the entire thoracolumbar spine); see also Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). In fact, as set forth in more detail above, repeated examinations have expressly shown that ankylosis is not present. The appellant does not contended otherwise. The Board has also considered the rating criteria for evaluating intervertebral disc syndrome. As set forth above, however, the clinical evidence consistently shows that his service-connected low back disability has never been productive of incapacitating episodes. Indeed, in clinical settings, including multiple VA medical examinations, the examiners have consistently noted that the appellant has denied any incapacitating episodes as a result of his service-connected low back disability. The Board has considered the appellant's March 2011 statement to the effect that he is entitled to a 40 percent disability rating as he had had incapacitating episodes of low back pain having a total duration of at least four weeks in the past year. He acknowledges, however, that there are no clinical records supporting his contentions as he did not visit a physician for treatment during these episodes because he did not have health insurance. As described above, the applicable rating criteria specifically define an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Questions of credibility notwithstanding, the appellant's contentions alone are insufficient to support a 40 percent disability rating as he acknowledges his claimed bed rest was not ordered by a physician. The Board further observes that the record on appeal contains VA and private clinical records spanning more than a decade. Although these records document treatment for back pain, they contain no indication that bed rest was prescribed by a physician. There is no other objective indication in the record of incapacitating episodes, particularly incapacitating episodes having a duration of at least 4 weeks in any 12 month period. In view of these findings, the preponderance of the evidence is against a rating in excess of 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered that the Rating Schedule specifically provides that neurological symptoms are to be rated separately under the appropriate diagnostic code. In this case, the appellant has been separately rated for radiculopathy of the right and left lower extremities. The evidence does not show, nor has the appellant contended, that he has any additional neurological symptoms associated with his service-connected low back disability which would warrant a separate rating. In reaching this decision, the Board has also considered whether the appellant may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321. Under 38 C.F.R. § 3.321, in exceptional cases where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). After reviewing the record, however, the Board finds no basis for further action on this question as there is no indication of an exceptional or unusual disability picture such that the schedular criteria for the appellant's service-connected low back disability are inadequate. As discussed above, the symptoms associated with the appellant's service-connected low back disability, including pain, limitation of motion, muscle spasm, and functional loss, are fully contemplated by the Rating Schedule and the currently-assigned 20 percent rating. Moreover, the appellant's service-connected low back disability has not necessitated frequent periods of hospitalization and he has not contended otherwise. Indeed, there is no indication that the appellant has ever been hospitalized in connection with his low back disability. Finally, the Board finds that the appellant's service-connected low back disability, in and of itself, has not been shown to cause marked interference with employment beyond that contemplated by the schedular criteria. Johnson v. Shinseki, --- Vet. App. ----, No. 10-1785 (Mar. 27, 2013) (en banc) (holding that the Board is not required to consider whether a claimant is entitled to extraschedular consideration for multiple disabilities on a collective basis). Although the record shows that the appellant is limited in the type of physical employment he can perform, examiners have repeatedly indicated that he is employable. In recognition of the industrial impairment caused by his service-connected low back disability, the appellant has been awarded a 20 percent disability rating. Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The record otherwise contains no indication that there are factors causing marked interference with employment beyond that contemplated by the schedular criteria. Under these circumstances, the Board finds no evidence to indicate referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, however, the record on appeal contains no credible indication that the appellant is unemployable as a result of his service-connected low back disability. Although he submitted an August 2010 application for a total rating based on individual unemployability, claiming that he had been unable to work since May 2010 due to his low back disability, the record shows that the appellant apparently remained employed. At his January 2012 Board hearing, for example, the appellant testified that he had lost five days to two weeks of work every year over the past ten years due to his back pain. He indicated that he had not missed much time from his employment in the past year, however, as his job involved a lot of sitting and he wore a back brace. At his most recent VA medical examination in December 2012, it was noted that the appellant remained employed as a medical support assistant. In any event, the Board observes that repeated VA medical examinations have consistently shown that the appellant's service-connected low back disability does not render him unemployable or incapable of obtaining and retaining substantially gainful employment. Absent probative evidence of unemployability, consideration of a total rating based on individual unemployability due to service-connected disability is not warranted. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative disc disease for any period of the claim. The benefit of the doubt doctrine is not for application as the weight of the evidence is against the claim. 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to a rating in excess of 20 percent for the orthopedic manifestations of a lumbosacral strain with degenerative disc disease is denied. REMAND The appellant seeks service connection for avascular necrosis of the right hip. He contends that his right hip disability was incurred during active service as a result of an injury he sustained when he fell on his back and/or right hip. Alternatively, the appellant claims that he developed avascular necrosis of the right hip secondary to his service-connected chronic lumbosacral strain with degenerative disc disease. In support of his claim, the appellant has submitted July 2005 and April 2007 statements from his private chiropractor. In the July 2005 statement, the private chiropractor indicated that the appellant's right hip disability was connected to an in-service injury in which he fell from a military tank. In the April 2007 statement, the private chiropractor indicated that although it is unlikely that the appellant's right hip avascular necrosis resulted from an in-service injury, it is at least as likely as not that his right hip disability developed after years of contending with chronic lumbar strain, degenerative disc disease, and neuralgia. The appellant has also submitted a January 2006 progress note from his private physician containing a notation to the effect that the appellant's back aggravated his hip, leading to a total right hip arthroplasty in April 2005. In support of his claim, the appellant was afforded a VA medical examination in March 2006. The examiner concluded that it is less likely than not that the appellant's avascular necrosis of the right hip is related to his service-connected low back disability. Rather, he concluded that a November 2004 work-related injury was the more likely cause of his right hip avascular necrosis. In its September 2012 remand, the Board concluded that the medical opinions discussed above were inadequate for entering a decision, having been provided without review of the entire history of the disability on appeal, to include newly acquired clinical records suggesting that the appellant may have sustained low back and/or right hip injuries in the late 1980's and/or early 1990s. Thus, the Board remanded the matter for the purpose of obtaining additional post-service clinical records as well as a medical opinion addressing the etiology of the appellant's avascular necrosis of the right hip, to include whether it was incurred in service or is causally related to or aggravated by his service-connected low back disability. A review of the record indicates that the appellant failed to respond to the RO's request that he submit or identify outstanding post-service clinical records. In December 2012, the appellant was afforded a VA medical examination. After examining the appellant and reviewing the record, the examining VA physician concluded that the appellant's avascular necrosis of right hip had not been caused by the in-service fall, nor had it been caused by his service-connected low back disability. The Board finds that the December 2012 VA medical opinion to be highly probative. It is based on a full review of the available record and contains sound reasoning for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The opinion, however, is incomplete. Although the examiner concluded that the appellant's avascular necrosis was neither incurred during active service nor is causally related to the service-connected low back disability, it does not address the question of aggravation. This omission must be corrected on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate); see also Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). There is judicial guidance that "not related to" language is not sufficient to address aggravation. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the appellant's claims folder to the physician who conducted the December 2012 VA medical examination, if available. He should also be provided with access to any additional records in the appellant's Virtual VA file, as appropriate. The physician should be requested to provide an addendum to his December 2012 opinion addressing the question as to whether it is at least as likely as not that the appellant's avascular necrosis of the right hip was aggravated (permanently made worse by) by his service-connected lumbosacral strain with degenerative disc disease. 2. If the physician who conducted the December 2012 VA medical examination is no longer available, the appellant should be scheduled for another VA medical examination for the purpose of obtaining an opinion regarding the etiology of his avascular necrosis of the right hip. The claims folder and access to the appellant's Virtual VA file must be provided to the examiner for review in connection with the examination. The examiner should be asked to provide an opinion regarding whether it is at least as likely as not the appellant's avascular necrosis was incurred during service or is causally related to or aggravated by any service-connected disability, including lumbosacral strain with degenerative disc disease. The examiner must provide a supporting rationale to all opinions provided. 3. Thereafter, the RO must review the claims folders and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO must review the examination reports to ensure that they are in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. After undertaking any additional development deemed necessary, the RO/AMC should readjudicate claim, considering all of the evidence of record. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond. The case should then be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs