Citation Nr: 1322837 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 09-27 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to an initial compensable evaluation from December 1, 2008, to September 14, 2011, for a service-connected low back disability. 2. Entitlement to an initial evaluation in excess of 20 percent beginning September 15, 2011, for a service-connected low back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to November 2008. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Service connection was granted and an initial noncompensable evaluation was assigned effective December 1, 2008, the day after the Veteran's separation, therein for a degenerative disc disease. He perfected an appeal as to this determination. In May 2011, the Veteran testified before the undersigned at a hearing held at the RO. The Board remanded this matter for additional development in August 2011. An August 2012 rating decision of the Appeals Management Center (AMC) recharacterized this matter as one of lumbosacral strain. The noncompensable evaluation was increased to 20 percent effective September 15, 2011, therein. The Veteran's appeal continued because the increase did not go back to December 1, 2008, and because evaluations higher than 20 percent are possible. AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded this matter, recharacterized as lumbar strain, a second time in November 2012. All directed additional development has been completed or at least substantially completed. Adjudication thus may proceed if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is 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 (Fed. Cir. 2002). No potential problems with adjudication are found at this time. Thus, the following determinations are made based on review of the Veteran's claims file and Virtual VA "eFolder." Recharacterization of this matter into one regarding a low back disability is undertaken at this time for the sake of simplicity. FINDINGS OF FACT 1. For the period from December 1, 2008, to September 14, 2011, the Veteran's low back disability manifested muscle spasm not resulting in abnormal gait or spinal contour but did not manifest forward flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees, or incapacitating episodes. 2. Beginning September 15, 2011, the Veteran's low back disability has not manifested forward flexion of 30 degrees or less, favorable ankylosis, or incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but no higher, for a service-connected low back disability have been met for the period from December 1, 2008, to September 14, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5237, 5243 (2012). 2. The criteria for an initial evaluation in excess of 20 percent for a service-connected low back disability beginning September 15, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.31, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5237, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty of notification regarding a claim for VA benefits. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. VA must notify the claimant and his representative prior to initial adjudication by the agency of original jurisdiction (AOJ) of any information or evidence not of record that is necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notification that an initial evaluation and an effective date will be assigned if service connection is granted for a disability also must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)). None is found. A September 2008 letter informed the Veteran and his representative of the criteria for establishing service connection, the evidence required in this regard, his and VA's respective duties for obtaining evidence, and how evaluations and effective dates are assigned. This letter is dated prior to the initial adjudication by the AOJ, which in this case also is the RO, via the February 2009 rating decision. The purpose that notice is intended to serve was fulfilled in that the benefit sought, which initially was service connection, was granted therein. Dingess, 19 Vet. App. at 473. In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This includes a requirement to aid the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Service treatment records and VA treatment records regarding the Veteran have been obtained by VA. The most recent VA treatment records were obtained in compliance with the Board's remands. Pertinent private treatment records from the one provider identified by the Veteran have been obtained by VA. The Veteran has had opportunities to identify additional such records. This includes responding to August 2011 and December 2012 letters sent to him in this regard pursuant to the Board's remands. However, he did not do so. Yet he did submit statements from private providers on his own behalf. VA medical examinations were conducted in January 2009, January 2010, and, as directed by the Board's first remand, on September 15, 2011 (with a January 2013 addendum, pursuant to the Board's second remand). Specifically, a detailed explanation regarding flare ups was requested. A terse but sufficient explanation was provided. Each examiner reviewed the claims file. There is no indication whether or not any examiner reviewed the "eFolder." Since the Veteran gave an accurate account of his medical history to all, this potential lack of review is of no great import. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008). All of the examiners also interviewed the Veteran and undertook a physical assessment of him. These actions have provided enough detail so that the determinations made herein are fully informed. Thus, the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). This is true with respect to the January 2009 examination whether or not it was brief, as the Veteran indicated in April and July 2009 statements. How short or how long an examination was indeed does not matter as long as enough detail is provided. The aforementioned also is true with respect to the January 2010 examination whether or not all of the Veteran's reports were accurately set forth. He indicated they were not in a statement dated later that month. The discrepancies he highlights are considered herein. However, the findings made at the examination stand unchallenged. Of further note is the Veteran's indication in the aforementioned statement that he was not asked to remove any clothing at this examination. He believes that the gait and contour of his spine therefore could not be inspected. This belief is incorrect. Gait means a manner of walking or moving on foot. Merriam-Webster 's Collegiate Dictionary 511 (11th ed. 2003). It follows that removal of clothing is unnecessary to assess it. While assessment of spinal contour can be via visual inspection which necessitates the removal of clothing, other methods are possible. One other method is feeling or palpating the spine through clothing. It is significant that neither the Veteran nor his representative has identified any further development necessary for fair adjudication on the merits that has not been completed. The record also does not indicate any further development. Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183. Appellate review therefore may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Of final note, the individual presiding over a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The undersigned identified a higher evaluation (then higher than noncompensable) for a service-connected low back disability as the sole issue on appeal at the outset of the May 2011 hearing. The undersigned and the Veteran's representative elicited information from him concerning his relevant symptoms and their impact on his life. Information also was elicited from him concerning his treatment. Remands for updated VA treatment records and pertinent private treatment records followed, as noted above. II. Higher Evaluation A. Schedular Evaluations are assigned pursuant to VA's Schedule for Rating Disabilities. Separate Diagnostic Codes identify various disabilities and the criteria for a specific evaluation to be assigned for that disability. The evaluations represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C.A. § 1155. An evaluation is assigned by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the evaluation criteria. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that evaluation of the disability is accurate. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower evaluation is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however. 38 C.F.R. § 4.3. He thus prevails if the evidence supports a higher evaluation or is in relative equipoise but does not prevail when it is against a higher evaluation. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For initial evaluations, consideration must be given to whether a staged evaluation is or staged evaluations are warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In staged evaluations, two or evaluations are assigned because a disability meets the criteria for one evaluation during one period on appeal but meets the criteria for another evaluation or evaluations during another or other periods on appeal. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness. 38 C.F.R. §§ 4.40, 4.59. It also may be due to excess fatigability or incoordination. 38 C.F.R. § 4.45. A higher evaluation for functional loss, to include during flare-ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.71a, Diagnostic Code 5003, addresses degenerative arthritis. It provides that this condition must be established by X-ray evidence. Evaluations for it are to be made on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If evaluation on this basis results in a noncompensable evaluation, a 10 percent evaluation is assigned for each major joint or group of minor joints affected by limitation of motion. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation. The same with occasional incapacitating exacerbations warrants a 20 percent evaluation. Degenerative arthritis of the spine is the subject of Diagnostic Code 5242. It, like other back conditions such as Diagnostic Code 5237 for lumbosacral strain which has been used to assess the Veteran's service-connected low back disability, is evaluated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Evaluations are to be made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching under the General Formula. For the thoracolumbar spine, a 10 percent evaluation is merited when forward flexion is greater than 60 degrees but not greater than 85 degrees, combined range of motion is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness is present but does not result in abnormal gait or abnormal spinal contour, or there is a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires forward flexion greater than 30 degrees but not greater than 60 degrees, combined range of motion 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 evaluation is assigned when forward flexion is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine results in a 50 percent evaluation. The maximum 100 percent evaluation is reserved for unfavorable ankylosis of the entire spine. Normal range of motion is from 0 to 90 degrees forward flexion and from 0 to 30 degrees extension, left and right lateral flexion, and left and right lateral rotation for a combined range of motion of 240 degrees. General Formula, Note (2); 38 C.F.R. § 4.71a, Plate V. Normal combined range of motion is 240 degrees. Id. Additionally, the General Formula provides for the assignment of separate evaluations under appropriate Diagnostic Codes for any objective neurologic abnormalities associated with a disease or injury of the spine. General Formula, Note (1). This includes, but is not limited to, bowel or bladder impairment. It also includes radiculopathy and similar conditions of the lower extremities. The Veteran's service-connected low back disability also has been assessed under Diagnostic Code 5243 concerning intervertebral disc syndrome (IVDS). It calls for evaluation under either the above General Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever results in the higher evaluation. Incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months is needed for a 10 percent evaluation. A 20 percent evaluation is for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months results in award of a 40 percent evaluation. The maximum evaluation of 60 percent is awarded for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. IVDS Formula, Note (1). The probative value of the evidence must be determined. 38 C.F.R. § 4.6. In other words, the Board must account for evidence which it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert, 1 Vet. App. at 49. This includes the lay evidence in addition to the medical evidence. The competency and credibility of the lay evidence therefore must be addressed. Layno v. Brown, 6. Vet. App. 465 (1994) (noting that competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Only the most relevant evidence need be discussed, however, even though all the evidence has been reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). In service treatment and private records dated in the last few years before the Veteran's separation, he complained of low back pain to include with motion that is quite bad and becomes worse with coughing, straining, sitting, lifting, bending, and standing. He also usually complained of radiation of this pain down his right leg, right sacroiliac joint pain, and right leg weakness after sitting. Medication and epidural steroid injections were utilized as treatments. His spine was straight without listing, but mild spasms were detected on one occasion. Range of motion was decreased on a few occasions but full on another. The Veteran could bend forward to a nearly normal degree. Indeed, he could or almost could touch his toes. X-rays were normal, but magnetic resonance imaging (MRI) at that time showed multilevel degenerative disc disease (DDD) from L2-3 through L4-5 and normal sacroiliac joints. The Veteran was able to walk on his heels and toes, and he had normal reflexes, strength, and sensation. Straight leg raise (SLR) testing was negative. Reference was made to radicular symptoms bilaterally on one occasion. He was placed on a temporary three month restriction from bending at the waist, climbing, crawling, kneeling, crouching, pushing, pulling, lifting or carrying more than 15 pounds, running, jumping, swimming, diving, and wearing load bearing equipment. Later, he was permanently restricted to light or sedentary work. It was determined that he would have continued difficulty with heavy lifting, bending, or carrying heavy objects. The same determination was made in an October 2008 statement from a private physician. The Veteran complained of constant low back pain that is worse with prolonged positions, standing, and walking as well as with repetitive bending and lifting at the January 2009 VA examination. He described this pain as a dull ache and indicated that it occasionally radiates into his legs. He endorsed rest, activity modification, and medication as current treatments with seeing a chiropractor as past treatment. The Veteran stated that he could walk 2 miles. He denied other symptoms, bowel and bladder complaints, and erectile dysfunction. His posture and gait were normal. There was no loss of normal spinal curvature and no tenderness of the low back on palpation. Range of motion was normal in every direction without any indication of discomfort. Repetition did not produce any limitation of motion. Reflexes were normal, and there was no sensory or motor impairment. X-rays showed L5 stenosis. Use of osteopathic manipulation and a transcutaneous electrical nerve stimulation unit by the Veteran were mentioned in addition to the aforementioned treatments in a March 2009 statement from a private physician. In an April 2009 statement, the Veteran noted that he cannot stand up straight or walk upright after sitting for periods as short as 30 minutes due to low back pain. He also noted that his daily average pain level is a 6 to 8 out of 10. Finally, he noted that he maintains a fair amount of motion without a great increase in his pain as long as he does no physical activity such as mowing the lawn, carrying groceries inside, and riding a bicycle. This was reiterated in a July 2009 statement. The Veteran additionally indicated therein that his constant pain is increased with bending and that he will have to limit his bending, lifting, and running, and similar activities for the rest of his life. June 2009 private treatment records reference sciatica. The Veteran's spine did not list, and he could bend forward normally. He was able to walk on his heels and toes. SLR testing was negative. Sensation and strength were normal. A epidural steroid injection was provided. An August 2009 VA treatment record contains the Veteran's complaint of low back pain radiating into his right leg. Motor and sensory function was intact. Lumbar radiculopathy was diagnosed. September 2009 VA treatment records contain the Veteran's complaint of constant low back pain then rated a 4 (presumably out of 10) that is worse with activity, bending, and carrying heavy objects. He indicated that this pain occasionally shoots down his left leg. He further indicated having good bowel and bladder function. The Veteran's gait was very stable. He could walk on his heels and toes without difficulty. SLR testing was negative, and neurological testing to include of his reflexes, strength, and sensation was normal. Upon VA examination in January 2010, the Veteran reported constant low back pain then rated a 7 or 8 out of 10 which radiates into his right leg. He described it as ice pick pressure-like. He endorsed medication and injections as current treatment with seeing a chiropractor as past treatment. The Veteran indicated that he could walk 1 mile on a track but avoids jogging, running, and weight lifting. Finally, he denied other symptoms, bowel and bladder complaints, and erectile dysfunction. His posture, spinal contour, and gait were normal. There was no tenderness in or spasms of his low back. Range of motion was normal in every direction without any expression of pain. Repetition did not produce any limitation of motion. Neurological testing to include of the Veteran's reflexes, strength, and sensation was normal. August 2009 X-rays were noted to have shown anatomic alignment of the lumbar spine. It also was noted that there was no lumbar radiculopathy. In a January 2010 statement, denied having received chiropractic treatment. He indicated that he reported spikes of his low back pain rated a 10 out of 10 at least twice a week and spasms as well as that he was not asked about bowel and bladder problems or erectile dysfunction. He further indicated that he did not say he could walk 1 mile on a track. Rather, the Veteran recounted stating that he cannot walk on a treadmill without intense pain and cannot run, lift, or do bending or twisting exercises. He noted that upon bending forward, he was unable to touch his knees. This he equated with a 50 percent loss of motion since he used to be able to touch his toes. The Veteran finally noted that he has pain anytime he bends or moves and that he cannot vacuum, mow the yard, or carry or lift anything over 15 to 20 pounds. Testimony from the Veteran at the May 2011 hearing included his description of low back pain which radiates into his right leg and muscle spasms mainly in the mornings or with activity. He indicated that his pain increases with bending. Finally, he indicated that he has used medications and injections to treat his symptoms but that they prevent him from carrying, lifting, pushing to include a lawn mower, and sitting or standing for prolonged periods. The Veteran complained of moderate chronic low back pain described as dull to sharp in nature which radiates into his right leg at the September 15, 2011, VA examination. He further complained of daily flare ups, which were noted to result in functional loss, due to static positioning. He indicated that he could walk 1 mile. The Veteran denied other symptoms, bowel and bladder complaints, erectile dysfunction, and incapacitating episodes with the past 12 months. His posture revealed a slight right shoulder droop, but his spinal contour and gait were normal. There was localized tenderness. Neither muscle spasms nor guarding was detected. Ankylosis also was not present. Range of motion was from 0 to 60 degrees forward flexion with pain shown by facial expression at the end of the range, from 0 to 20 degrees extension without pain, and from 0 to 25 degrees left and right lateral flexion as well as rotation with minimal discomfort at the end of the range. Repetition did not produce any further limitation of motion. SLR testing was negative. Muscle strength was good. Reflexes were normal, and sensation was normal with the exception of at the L4 distribution in the right leg where it was slightly diminished. It was noted in the January 2013 addendum to the aforementioned examination that the Veteran's flare ups require rest and medication. Further noted was that any limitation of motion he experiences during flare ups beyond that he normally experiences cannot be specified. The rationale was that he was not experiencing a flare up at the time of the examination. Mild right L4 radiculopathy was diagnosed. Given the above, the Board finds that an initial evaluation of 10 percent is warranted under the General Formula for the Veteran's service-connected low back disability for the period from December 1, 2008, to September 14, 2011. There indeed was muscle spasm, guarding, or localized tenderness that did not result in abnormal gait or abnormal spinal contour. Such a finding renders discussion of the other General Formula criteria for a 10 percent evaluation unnecessary. At no point during the aforementioned period was any abnormality detected in the Veteran's gait or spinal contour. Rather, his spine always was found to be straight or anatomically aligned with normal contour/curvature. This includes no listing. The Veteran's gait always was found to be very stable and normal. Guarding was not referenced at any point despite that he was treated and examined. A lack of notation where notation would be expected, such as in these circumstances, is noteworthy. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). Localized tenderness specifically was not found upon examination. Neither were muscle spasms. However, the Veteran reported spasms as well as testified concerning them. He is a lay person because there is no indication he has a medical background. His report and testimony is competent because such would have been experienced by him. Layno, 6 Vet. App. at 465. Competent lay evidence may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran's report is credible as is his testimony because there is no significant reason to doubt them. While he clearly is self-interested given the possibility for his receipt of increased compensation benefits, it is facially plausible that he had at least some spasms outside of examinations. His demeanor at the hearing conveyed veracity. His report and testimony are consistent with one another. His history further includes spasms notwithstanding that they were not detected during the aforementioned period. They indeed were detected near the end of his service. The Board next finds that an initial evaluation higher than 10 percent is not warranted for the Veteran's service-connected low back disability for the period from December 1, 2008, to September 14, 2011. Diagnostic Code 5003 is not applicable because it has not been established by X-rays that the Veteran has arthritis. Indeed, the only abnormality shown by X-rays was L5 stenosis. MRI is a type of diagnostic test like X-rays, but the Veteran's showed DDD instead of arthritis. Even assuming that DDD is a form of arthritis or that arthritis had been established otherwise, the lumbar vertebrae are considered a group of minor joints. 38 C.F.R. § 4.45(f). 10 percent accordingly is the maximum evaluation allowable under Diagnostic Code 5003, regardless of whether or not there was limitation of motion. With respect to the General Formula, none of the criteria for even a 20 percent initial evaluation were met during the aforementioned period. It is reiterated that the Veteran did not have an abnormal gait or spinal contour in the aforementioned period. He thus could not have had muscle spasm or guarding severe enough to result in any such abnormality. The Veteran also did not have forward flexion greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees. His forward flexion initially and with repetition was much higher than 60 degrees upon examination, while his combined range of motion initially and with repetition was much higher than 120 degrees upon examination. Indeed, his forward flexion always was to a normal 90 degrees. He could bend forward normally. His combined range of motion always was to a normal 240 degrees. These findings correspond to his history of sometimes having full or near full range of motion, to include being able to bend forward and almost touch his toes, toward the end of his service. The Veteran's report that he cannot bend forward and touch his knees, which he determined constituted forward flexion of approximately 45 degrees (50 percent of normal), is inconsistent with the above. A lack of notation where notation would be expected may be considered. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). At least some documentation of significantly reduced forward flexion or combined range of motion would be expected if such had existed. That there is none here suggests that the Veteran is motivated by his self-interest in financial gain to exaggerate the severity of his forward flexion and combined range of motion limitations. His report is competent for the same reason previously specified but is not credible, in other words. Acknowledgement is given to the Veteran's history of sometimes having decreased motion toward the end of his service. However, this does not connote forward flexion between 31 and 60 degrees or combined range of motion equal to or less than 120 degrees. It rather connotes forward flexion to any degree less than the normal 90 degrees and combined range of motion at any degree less than the normal 240 degrees. Forward flexion thus could have been between 61 and 89 degrees and combined range of motion could have been between 121 and 239 degrees. Such is most likely, given the numerous findings of full or nearly full combined range of motion to include bending. Without precise measurement, however, there is no way to tell. Pure speculation and remote possibility are insufficient when considering the degree of disability present. 38 C.F.R. § 3.102. Absent a history of the required reduction in forward flexion and combined range of motion, it cannot be concluded that there was the same at least sometimes during the aforementioned period notwithstanding the measurements upon examination. Reference was not made to fatigue, weakness, lack of endurance, or anything similar impacting the Veteran's motion upon examination. It always was noted that the Veteran did not manifest pain or discomfort in moving his spine upon examination during the aforementioned period. He disputes this, reporting that any bending or moving produced pain and testifying concerning increased pain with bending. This report and testimony is competent for the same reason as above. Credibility need not be addressed. It is of no consequence whether or not the Veteran's forward flexion or motion in any other direction was with pain. Painful motion is not in and of itself functional loss, and it does not constitute limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Concerning flare-ups, the Veteran's reports of such are competent for the same reason as above. They also are credible because there is no significant reason to doubt them. That the Veteran would have experienced flare-ups is facially plausible. He indeed consistently described increased pain with movement and activity. Significantly, however, he did not report additional reduced forward flexion or combined range of motion during flare-ups as a result of his increased pain. No forward flexion or combined range of motion measurements were made during a flare-up. None were estimated. To the extent there was any additional reduced forward flexion or combined range of motion during flare-ups, it thus cannot be concluded without resort to pure speculation that forward flexion greater than 30 degrees but not greater than 60 degrees or combined range of motion not greater than 120 degrees existed. Of further note is that such forward flexion and combined range of motion during flare-ups is only a remote possibility given they generally were normal. A slight to moderate decrease in forward flexion and combined range of motion indeed would be expected over a substantial decrease. The decrease required here would amount to ? of the Veteran's measured forward flexion and 1/2 of his measured combined range of motion. For the period beginning September 15, 2011, the Board finds that an initial evaluation in excess of 20 percent is not warranted under the General Formula for the Veteran's service-connected low back disability. The criteria for even the next highest evaluation of 40 percent have not been met. There indeed is no indication that the Veteran's entire thoracolumbar spine is favorably ankylosed or that his forward flexion is to 30 degrees of less. Ankylosis is immobility and consolidation of a joint. Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007); Lewis v. Derwinski, 3 Vet. App. 259 (1992); Nix v. Brown, 4 Vet. App. 462 (1993); Shipwash v. Brown, 8 Vet. App. 218 (1995). In other words, it is stiffening or fixation of a joint. Dinsay v. Brown, 9 Vet. App. 79 (1996). The difference between favorable and unfavorable ankylosis is the position of it and whether or not it causes associated difficulties. General Formula, Note (5). Ankylosis, whether favorable or unfavorable, specifically has not been found. The Veteran further has some motion in all directions initially and with repetition, as discussed below. He had full motion in all directions initially and with repetition prior to September 15, 2011, as discussed above. It follows that there is no immobility, consolidation, stiffening, or fixation of his spine at a specific point. The Veteran's forward flexion initially and with repetition was much higher upon examination. It particularly was to 60 degrees. That there was pain at the end of this range is of no consequence, just as it was not above. No reference was made to the Veteran's forward flexion being impacted by fatigue, weakness, lack of endurance, or the like. Like above, he competently and credibly reported flare-ups. It was noted that they result in functional loss. No measurement of forward flexion was made during a flare-up, as the aforementioned measurements upon examination were made not during a flare-up. No forward flexion measurement during a flare-up has been estimated, whether by a medical professional or by the Veteran. Concluding that forward flexion is to 30 degrees of less during flare-ups accordingly once again would require resort to pure speculation. Of further note is that such forward flexion during flare-ups is only a remote possibility given they generally are normal. A slight to moderate decrease in forward flexion indeed would be expected over a substantial decrease. The decrease required here would amount to ? of the Veteran's measured forward flexion. Regarding a separate evaluation under the General Formula, none is warranted for bowel or bladder impairment or for erectile dysfunction associated with the Veteran's service-connected low back disability during either the period from December 1, 2008, to September 14, 2011, or the period beginning September 15, 2011. There is no indication of bowel impairment, bladder impairment, or erectile dysfunction. The Veteran always denied such. While he disputes having made these denials on one occasion, he has not disputed having made them on any other occasion. He further has not lodged any complaints of the aforementioned, to include when he raised his dispute. The Veteran's denials are competent for the same reason as above. They are credible because there is no significant reason to doubt them. No objective findings of bowel or bladder impairment or of erectile dysfunction have been made during treatment or examination. The Board notes at this juncture that a March 2013 rating decision of the AMC granted a separate 10 percent evaluation effective September 15, 2011, for radiculopathy of the right lower extremity associated with the Veteran's service-connected low back disability. He has not initiated much less perfected an appeal as to this evaluation or effective date. As such, no discussion is needed concerning his right lower extremity. A separate evaluation is not warranted for radiculopathy of his left lower extremity associated with his service-connected low back disability during either of the aforementioned periods. The Veteran has a history of radicular symptoms in his left leg. He has reported that his back pain occasionally radiates to his left leg. These reports are competent for the same reason as above. Their credibility need not be addressed. Even assuming they are credible, SLR testing always has been negative on the left. Reflexes, strength, and sensation in the Veteran's left leg additionally always have been normal. No objective findings have been made with respect to this left, unlike for the right leg, in other words. It indeed was indicated on one occasion that there was no lumbar radiculopathy in the left leg. This corresponds with the diagnoses of lumbar radiculopathy made concerning only the right leg. Turning lastly to the IVDS Formula, the Board finds that it is not applicable for either the period from December 1, 2008, to September 14, 2011, or the period beginning September 15, 2011. The Veteran has not been diagnosed with IVDS. Yet DDD, a similar condition, was shown on his MRI. There is no indication of any incapacitating episodes of any duration, however. Nothing of the sort has been reported by the Veteran. He instead denied incapacitation within the past year on one occasion. At no point has he sought treatment for acute symptoms. All of his treatment indeed has been routine instead of on an emergent basis. Even if this were not the case, bed rest never was prescribed by the treating physician or other medical professional. Acknowledgement is given to the Veteran's reports of sometimes having to rest due to his symptoms. These reports are competent for the same reason as above. They are credible because there is no significant reason to doubt them. To the extent, if any, they imply bed rest, it is clear that such has self-imposed instead of prescribed. It was at the Veteran's own initiative rather than at that of physician or other medical professional, in other words. Use of the IVDS Formula therefore would result in a noncompensable evaluation. 38 C.F.R. § 4.31. The 10 percent evaluation for the period from December 1, 2008, to September 14, 2011, and the 20 percent evaluation for the period beginning September 15, 2011, assigned pursuant to the General Formula thus stand as the higher evaluations. Consideration has been given to reasonable doubt in making the above determinations. However, it does not apply because they were based on the preponderance of the evidence. Consideration also has been given to staged evaluations within the period from December 1, 2008, to September 14, 2011, and within the period beginning September 15, 2011. None are warranted because the above determinations cover these entire periods. B. Extraschedular The alternative to assigning an evaluation schedularly is to assign one on an extraschedular basis. 38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). There are 3 steps to be taken regarding extraschedular evaluations. Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the evidence presents such an exceptional disability picture that the applicable schedular evaluation criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made. If these criteria are inadequate, it second must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. Here, neither the Veteran nor his representative specifically has argued for an initial extraschedular evaluation for his service-connected low back disability. There is no indication that this disability cannot be contemplated adequately by the applicable schedular evaluation criteria discussed above. The Veteran's symptoms, which primarily have consisted of pain, spasms, and decreased range of motion, specifically are accounted for by these criteria and associated statutes, regulations, and caselaw. Evaluation has been based on these sources. Higher evaluations and separate evaluations exist pursuant to them. As explained above, however, an evaluation of 10 percent for the period from December 1, 2008, to September 14, 2011, and of 20 percent beginning September 15, 2011, accurately described and describes the severity of the Veteran's low back disability. The effect this disability had and has on him is encompassed by the aforementioned evaluations, in other words. This includes his various treatments and that he must limit movement of his back and therefore activity. Reports in this latter regard by him are competent for the same reason as above. They are credible because no significant reason is found to doubt them. Because the applicable schedular evaluation criteria are adequate, the Board does not find an exceptional low back disability picture. Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary, as referral for consideration of the assignment of an extraschedular evaluation is not warranted in this situation. Yet it is of note that there is no indication that the Veteran ever has been hospitalized due to his disability. Of further note is that some interference with his employment is conceded despite the January 2010 examination determination that his disability has no occupational effects. He reports and has testified that, although he has a desk job, he cannot sit for prolonged periods. This report is competent for the same reason as above and credible because there is no significant reason to doubt it. The inability to sit after a prolonged period does not rise to the level of marked interference, however. The Veteran is not prohibited from getting up to walk or stretch as needed. It follows that there is no reason he has had to restrict the amount he can work, whether in the number of hours per day or in the number of days, due to his disability. He indeed has indicated that he works full-time. III. Total Disability Evaluation Based on Individual Unemployability "A request for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by a [V]eteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities . . . as part of a claim for increased compensation." Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, the Veteran has not contended that his service-connected low back disability is so severe that it has rendered him unable to work. The evidence further does not indicate this to be the case. It is reiterated that he has a full-time desk job notwithstanding his disability. Consideration of a TDIU as a component of this matter therefore is not warranted. ORDER An initial evaluation of 10 percent for the period from December 1, 2008, to September 14, 2011, for a service-connected low back disability is granted, subject to the statutes and regulations governing the payment of monetary benefits. An initial evaluation in excess of 20 percent beginning September 15, 2011, for a service-connected low back disability is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs