Citation Nr: 1322993 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-04 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating higher than 10 percent for a lumbar strain prior to March 19, 2009. 2. Entitlement to a rating higher than 20 percent for a lumbar strain from March 19, 2009 to October 20, 2011. 3. Entitlement to a rating higher than 40 percent for a lumbar strain from October 21, 2011. 4. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy prior to March 19, 2009. 5. Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy from October 21, 2011. 6. Entitlement to a service connection for bladder and bowel impairment associated with the service-connected lumbar strain. 7. Entitlement to a separate rating for a low back scar. 8. Entitlement to a total disability rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from May 1993 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied entitlement to a rating higher than 10 percent for a lumbar strain. The Veteran appealed that decision to the Board, and the case was referred to the Board for appellate review. In a May 2009 rating decision the RO increased the rating for the lumbosacral strain to 20 percent effective March 19, 2009. The RO also granted entitlement to service connection for left lower extremity radiculopathy and assigned a 10 percent evaluation effective March 19, 2009. In an October 2012 rating decision the RO increased the rating for lumbar strain to 40 percent effective October 21, 2011, and increased the rating for left lower extremity radiculopathy to 20 percent effective October 21, 2011. In April 2011, the Board remanded the issues on appeal for a VA examination to determine the extent of the orthopedic and neurological impairment resulting from the service-connected lumbar disability. The Veteran was afforded such examinations in October 2011, November 2011, and in August 2012. The Board's April 2011 remand instructions were substantially complied with regards to all orthopedic manifestations and neurological impairment pertaining to the right lower extremity. The Board also took jurisdiction of the issue of entitlement to a total disability evaluation on the basis of individual unemployability rating pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In April 2013, the representative notified the Board that the Veteran's name has changed. The Veteran's current name is indicated on the title page. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. The issues whether the Veteran is entitled to service connection for bladder and bowel impairment secondary to low back disability, and what ratings are warranted at differing times for left lower extremity radiculopathy are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to March 19, 2009, the appellant demonstrated forward lumbar flexion greater than 60 degrees, the combined range of thoracolumbar motion exceeded 120 degrees, there was no evidence of muscle spasms severe enough to cause an abnormal gait or spinal contour, and there was no evidence that the disorder was manifested by at least two weeks of incapacitating episodes in any 12 month term. 2. From March 19, 2009 to October 20, 2011, the appellant's lumbar strain was not manifested by lumbar flexion to 30 degrees or less, or by at least four weeks of incapacitating episodes in any 12 month term. 3. Since October 21, 2011, the appellant's lumbar strain has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine, or by incapacitating episodes having a total duration of at least 6 weeks during any 12 month term. 4. During the appeal period, there is a painful surgical scar that is related to the service-connected lumbar sprain, which at most is 11 centimeters long. 5. In March 2013, prior to the promulgation of a decision in the appeal, the Veteran withdrew her claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. CONCLUSIONS OF LAW 1. Prior to March 19, 2009, the criteria for a rating in excess of 10 percent for a lumbar strain were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). 2. From March 19, 2009 to October 20, 2011, the criteria for a rating higher than 20 percent for a lumbar strain were not met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 3. From October 21, 2011, the criteria for a rating higher than 40 percent for a lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 4. The criteria for a separate 10 percent, but not higher, for a low back surgical scar have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). 5. The criteria to withdraw the appeal regarding entitlement to a total disability evaluation based on individual unemployability due to service connected disorders have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Individual unemployability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by her authorized representative. Id. In the present case, the Veteran in March 2013, through her authorized representative, withdrew her appeal with regard to the claim of entitlement to a total disability evaluation on the basis of individual unemployability. Hence there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the appeal regarding the issue of entitlement to benefits based on individual unemployability rating and it is dismissed. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. In October 2006, VA notified the Veteran of the evidence needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and the effective dates. While the VCAA notice did not specifically refer to an increased rating claim for left lower extremity radiculopathy, under a reasonable person standard, she could be expected to understand from the notice that the evidence needed to substantiate the claim for an increased rating for the lumbar sprain also applied to the increased rating for radiculopathy of the left lower extremity. VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Additionally, the Veteran was afforded multiple VA examinations during the appeal period, to include examinations in March 2007, October 2011, November 2011, and August 2012. She also was afforded a VA consultation in March 2009. While the Veteran has challenged the adequacy of various examinations, the Board finds that the examinations are completely adequate to rate her low back disorder when viewed in the totality of all the evidence of record. No additional examinations are in order. Lumbar spine A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board, however, is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Robinson v. Peake, 21 Vet.App. 545, 553 (2008). Moreover, the Board "is not obligated to consider 'all possible' substantive theories of recovery" and "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed.Cir.2009). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca, 8 Vet. App. at 206. Significantly, notwithstanding the guidance set forth in DeLuca under the facts of this case the general rating formula for lumbar disorders is controlling because VA must follow its own regulations. Browder v. Derwinski, 1 Vet. App. 204, 205 (1991). Here, the provisions of 38 C.F.R. § 4.71a specifically require that lumbar disorders are to be rated under the prescribed criteria with or without symptoms such as pain (whether or not the pain radiates), with or without stiffness, and with or without aching in the area of the spine affected by residuals of injury or disease. Simply put, the presence of pain is already taken into account in the formula. 68 Fed.Reg. 51454-5 (Aug. 27, 2003) ("Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine.") (emphasis added). The Board acknowledges that the Court in Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010), held that the Board must discuss any additional limitations a claimant experiences due to pain, weakness or fatigue. The obligation to discuss, however, is not an obligation to ignore the clear language of the controlling general rating formula. Under the General Rating Formula for Diseases and Injuries of the Spine 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 apply: a 20 percent disability 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. When rated based on incapacitating episodes, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The normal ranges of lumbar motion are forward thoracolumbar flexion from 0 to 90 degrees, and extension, lateral flexion, and lateral rotation from from 0 to 30 degrees in each plane of movement. 38 C.F.R. § 4.71a, Plate V. By way of history, an April 1998 rating decision granted entitlement to service connection for a chronic lumbar strain and assigned a 10 percent rating effective August 19, 1997. In September 2006, the Veteran filed a claim of entitlement to an increased rating which initiated the current appeal. The analysis below pertaining to neurological abnormalities associated with the service-connected lumbar strain focuses on the right lower extremity. As noted above, the issues of entitlement to separate ratings for bladder and bowel impairment, and entitlement to increased ratings for left lower extremity radiculopathy are being remanded for further development. Prior to March 19, 2009--Facts The representative argues that the Veteran is entitled to a 20 percent rating for her service-connected low back disability effective March 5, 2007 as she had pain with flexion at 45 degrees. In this regard, private medical records in August 2006 show the Veteran complained of low back pain. This physical examination did not record any range of motion findings. On VA examination in March 2007, the examiner noted that the Veteran underwent L4 to S1 discectomy in 2000. There were no flare-ups. The Veteran had no incapacitating episodes within the last 12 months. Physical examination revealed no paraspinal muscle spasms. Forward flexion was to 70 degrees, with pain from 45 to 70 degrees; extension was to 10 degrees with pain, bilateral lateral rotation was to 30 degrees without pain in each plane, and bilateral lateral flexion was to 20 degrees with pain in each plane of movement. The Veteran had normal strength of 5/5 in the right lower extremity in all muscle groups. Sensation was intact on the right. Reflexes were 1+ in knee and ankle jerks. In an April 2007 addendum the examiner indicated that there were no additional limitations with repetitive motion other than increased pain with no further loss of motion. There were no flare-ups and there was no incoordination, fatigue, weakness or lack of endurance. The diagnosis was myofascial lumbar pain with the left lower extremity give way weakness and decreased sensation. Analysis The Board finds that the evidence during this period preponderates against entitlement to a 20 percent rating for a lumbar strain. While the Veteran complained of low back pain in August 2006, and while the March 2007 examination noted complaints of pain with flexion to 45 degrees, the appellant remained capable of forward flexion to 70 degrees, and the combined range of lumbar motion totaled 180 degrees, i.e., well in excess of the 120 degrees required for a 20 percent rating. While the examiner found lower extremity weakness, the examiner did not report evidence of lumbar weakness or fatigue. Lower extremity weakness is not a lumbar disorder, but rather is a manifestation of a lower extremity disorder. While it is clear that the appellant's lumbar disorder was manifested by pain, "Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine." 68 Fed.Reg. 51454-5 (Aug. 27, 2003) (emphasis added). There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Finally, there was no evidence of bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 2 weeks but less than 4 weeks during any 12 month period during this term. Hence, the Veteran did not meet the criteria for a 20 percent rating. 38 C.F.R. § 4.71a. The Board considered the Veteran's lay statements that describe her back pain. While she is competent to describe what she feels the objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support a rating higher than 10 percent for a lumbar strain during this period. For the reasons articulated above, the Board finds that entitlement to a rating in excess of 10 percent for a lumbar strain is not warranted prior to March 19, 2009. March 19, 2009 to October 20, 2011--Facts A March 19, 2009 VA consultation shows the Veteran complained of pain in low back. Flexion was 45 degrees, extension was 45 degrees, right and left lateral flexion was 25 degrees, and right and left rotation was 20 degrees. Muscle strength was 4/5 on the right for the quadriceps, ankle plantar flexion, right ankle dorsiflexion, right ankle inversion, and for right ankle eversion. There was decreased sensation in the left knee lateral side to light touch and proprioception. All other areas were normal. Patellar and Achilles reflexes were present. Reflexes were absent in the hamstring muscles. The slump nerve test was negative on the right side and positive on the left side. The assessment was severe pain at the L4 and L5 interspinous spaces with radicular symptoms involving the left lower extremity. VA records in May 2009 shows the Veteran's flexion was limited to 60 degrees. Analysis Once again, the Board finds that the preponderance of the evidence during this period does not more nearly approximate the criteria for a rating in excess of 20 percent for lumbar strain. During this period, flexion at most was limited to 45 degrees, which does not more nearly approximate or equate to the functional equivalent of forward flexion to 30 degrees or less even when considering any evidence, of which there is none, of atrophy, fatigue, weakness, incoordination, and flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a. There also is no evidence, neither lay or medical, of incapacitating episodes, that is, bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 4 weeks but less than 6 weeks during the past 12 month period. Therefore, the Veteran did not meet the criteria for the next higher rating of 40 percent under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board has considered the Veteran's lay statements that describe her back pain and discomfort. Her statements are competent and credible, however, the Board finds that objective medical findings by skilled professionals are more persuasive which, as indicated above, do not support a rating higher than 20 percent for lumbar strain during this period. The Board specifically finds the range of motion measurements taken by trained professionals to be most probative. The Board does not doubt the appellant's assertion that her back disorder is manifested by painful motion, but pain is encompassed in the assigned rating. 68 Fed.Reg. 51454-5. As the criteria for a rating higher than 20 percent for lumbar strain were not demonstrated during this period, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Since October 21, 2011--Facts On VA examination on October 21, 2011, the Veteran reported that flare-ups impacted lumbar function. Forward flexion was to 25 degrees with pain beginning at 20 degrees, extension was 10 degrees with pain, bilateral lateral flexion was to 15 degrees with pain, and bilateral lateral rotation was to 20 degrees with pain. The Veteran was able to perform repetitive use testing with three repetitions. While the examiner found that the Veteran had additional limitation thoracolumbar motion following repetitive-use, post-test findings never revealed ankylosis in any plane of movement. The Veteran's functional loss and functional impairment after repetitive use included less movement. Muscle strength, reflexes, and sensory exams were normal in the right lower extremity. Straight leg test was negative in the right leg. There was no right lower extremity radiculopathy. The examiner stated that the Veteran had intervertebral disc syndrome of the thoracolumbar spine with incapacitating episodes of at least 2 weeks but less than 4 weeks in the past twelve months. A X-ray of the thoracolumbar spine showed arthritis. On VA examination in November 2011, the Veteran complained of daily moderately severe mechanical low back pain. The examiner noted that the Veteran did not report that flare-ups impacted the function of her thoracolumbar spine. Flexion was to 45 degrees with pain, extension was to 10 degrees with pain, right lateral flexion was to 25 degrees with pain, left lateral flexion was to 20 degrees with pain., and bilateral lateral rotation was to 25 degrees with pain. The Veteran was able to perform repetitive-use testing with three repetitions. While the examiner found an additional limitation thoracolumbar motion following repetitive-use, post-test findings never revealed ankylosis in any plane of movement. The examiner noted that the Veteran had additional limitation in range of motion of the thoracolumbar spine after repetitive-use testing as well as functional loss and functional impairment, which included less movement than normal and pain on movement. Lower extremity muscle strength was normal and there was no evidence of muscle atrophy. Reflex exam and sensory exams were normal. Right leg straight leg test was negative, and there was no right lower extremity radiculopathy. The examiner reported that there were no incapacitating episodes over the prior 12 months. On VA examination in August 2012, the Veteran complained of daily severe mechanical low back pain. The examiner noted that the Veteran had underwent a L4-S1 lumbar multilevel discectomies in 2000, and a L4/5 left lumbar laminectomy in 2002. The Veteran did not report that flare-ups impacted the function of the thoracolumbar spine. While pain was present at the beginning of movement in each plane of movement, i.e., at zero degrees, thoracolumbar ankylosis was never demonstrated. Again, it bears repeating that pain is encompassed in the rating formula. 68 Fed.Reg. 51454-5 (Aug. 27, 2003) ("Pain is often the primary factor limiting motion, for example, and is almost always present when there is muscle spasm. Therefore, the evaluation criteria provided are meant to encompass and take into account the presence of pain, stiffness or aching, which are generally present when there is a disability of the spine."). The examiner opined that functional loss and functional impairment of the thoracolumbar spine after repetitive use included less movement than normal and pain on movement. Right lower extremity muscle strength was normal, and there was no muscle atrophy. Right lower extremity reflexes were normal, as was sensation. Straight leg test was negative in the right lower extremity. There was no right lower extremity radiculopathy. There was no evidence of any incapacitating episodes over the prior 12 months. Analysis The evidence during this period preponderates against finding that the appellant's lumbar disorder more nearly approximated the criteria for a rating in excess of 40 percent for lumbar strain. There is no evidence of any unfavorable ankylosis as the evidence shows that the lumbar spine was never fixed in either flexion or extension. Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). There also is no evidence, neither lay or medical, of incapacitating episodes, that is, bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 6 weeks during any 12 month period. Therefore, the Veteran does not meet the criteria for the next higher rating of 60 percent under Diagnostic Code 5243 for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. During this period, the evidence shows that there was no neurological impairment on the right side associated with the service-connected lumbar strain. On VA examination in October 2011, muscle strength, reflexes, and sensory exams were normal in the right lower extremity. Straight leg test was negative in the right leg. There was no right lower extremity radiculopathy. On VA examination in November 2011 and in August 2012, there was no right lower extremity radiculopathy, and reflex and sensory examinations were normal with straight leg testing being negative in the right leg. The Board also has considered the Veteran's lay statements that describe her back pain and flare-ups. While her statements are competent and credible, the objective medical findings by skilled professionals are more persuasive which, as indicated above, preponderate against finding entitlement to a rating higher than 40 percent for a lumbar strain during this period. As the criteria for a rating higher than 40 percent for lumbar strain have not been demonstrated during this period, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Scar The Veteran has a residual surgical scar from her back surgery in 2000. At a VA examination on October 21, 2011, the examiner noted that the Veteran had a back surgical scar due to a L4 to S1 discectomy in 2000. The examiner stated that the Veteran had one 10 centimeter, trunk area postsurgical scar that was painful with movement. The scar was not unstable, and it did not involve frequent loss of covering of skin over the scar. At an August 2012 VA examination, the examiner found a painful, 11 centimeter midline posterior trunk area scar. The scar was not unstable, and it did not involve the frequent loss of covering of skin. In sum, the evidence shows that the Veteran has a painful scar related to surgery associated with her service-connected lumbar sprain. Therefore she is entitled to a separate 10 percent rating for a painful scar under Diagnostic Code 7804, for a painful superficial scar, in effect prior to October 23, 2008, as her claim for an increased rating for the lumbar sprain was received in September 2006. While the criteria for rating scars under Diagnostic Codes 7800-7805 were amended effective October 23, 2008, those amendments apply to all claims received by VA on or after October 23, 2008. While claimants who filed a claim before October 23, 2008 may request a review under the revised Diagnostic Codes the Veteran has not requested that her scar be rated under the revised criteria and the criteria prior to October 23, 2008 apply. The only rating available under Diagnostic Code 7804 is 10 percent and the other diagnostic codes in effect prior to October 23, 2008 are not applicable as the Veteran's scar did not exceed 6 inches (39 square centimeters) and was not unstable. Extraschedular rating While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to her service-connected lumbar strain. The Veteran's lumbar strain is manifested by pain, limitation of motion, and a painful scar. The ratings assigned contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a rating in excess of 10 percent for a lumbar strain prior to March 19, 2009 is denied. From March 19, 2009 to October 20, 2011, entitlement to a rating higher than 20 percent for a lumbar strain is denied. From October 21, 2011, entitlement to a rating higher than 40 percent for a lumbar strain is denied. Entitlement to a separate 10 percent rating, but not higher, for a lower back scar is granted subject to the laws and regulations governing the payment of monetary benefits. The issue of entitlement to a total disability evaluation based on individual unemployability is dismissed. REMAND Radiculopathy of the Left Lower Extremity During the current appeal period, which began in September 2006 when the Veteran's claim was received, the evidence has been inconsistent regarding any left lower extremity radiculopathy. On VA examination in March 2007, the Veteran's sensation was diminished in all left lower extremity dermatomes. Following a VA examination in March 2009, the assessment was severe pain at the L4-L5 interspinous spaces with radicular symptoms involving the left lower extremity. On VA examination in November 2011, the examiner found that only the sciatic nerve was involved and that the Veteran's radiculopathy in the left lower extremity was manifested by moderate pain, paresthesias and/or dysthesia, and numbness, however the examiner concluded that the radiculopathy was mild. On VA examination in August 2012, the examiner indicated that both the sciatic nerve and femoral nerve were involved. While the examiner found that there was moderate paresthesia, dysthesia, and numbness, the examiner concluded there was mild radiculopathy on the left side. In light of this conflicting evidence under VA's duty to assist another VA examination is necessary to determine what, if any, nerves affected by radiculopathy to the left lower extremity from September 2006 to the present, as well as the severity of each impaired nerve during the current appeal period. Bowel and Bladder Impairment In the April 2011 remand, the Board noted that where a service-connected disability causes multiple problems or has multiple, separate and distinct manifestations, separate ratings may be assigned. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). As a VA examination in March 2007, and as VA medical records in June 2008 and in March 2009 indicate urinary incontinence, the Board found that it was necessary to address whether that symptomatology was due to the Veteran's service-connected lumbar spine disability. The Board instructed that the Veteran be provided with an examination that addressed whether there was any bowel or bladder incontinence related to the Veteran's lumbar spine disability. Regrettably, for the reasons explained below, the Board's remand instructions were not complied with and further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the Board's April 2011 remand, the Veteran was afforded multiple VA examinations, however the opinions rendered were either inconsistent or lacked a rationale. On VA examination in October 2011, the examiner stated that the Veteran had a bladder/urethra condition that has not yet been diagnosed and it was uncertain whether it was related to the spine. The examiner concluded that the Veteran had a constant burning sensation in her urethra that is more likely than not, not related to her spinal condition. On VA examination in November 2011, a different examiner noted that the Veteran had chronic urge incontinence that most likely was a gynecologic/urologic disorder and not related to the lumbar spine. While on VA examination in August 2012, a third examiner indicated that the Veteran did not have any other neurologic abnormalities or findings, to include bowel or bladder problems, the examiner did not provide a rationale for the opinion. The Veteran is service connected for lysis due to a peritoneal adhesion and recurrent urinary tract infections. Under the circumstances of this case, she should be afforded a VA examination to determine whether she has any independent bladder and/or bowel disorder that is related to her service-connected lumbar sprain. Further, examination is in order to differentiate all pathology caused by lysis of peritoneal adhesion and recurrent urinary tract infections from any finding of any other bladder or bowel disorder. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA neurological examination to determine the extent of the neurological impairment resulting from the appellant's service connected lumbar strain. The examiner must be afforded access to the claims files and Virtual VA prior to the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. Any further studies deemed relevant by the examiner must also be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. The examiner must fully assess the nature, etiology and severity of any left leg radiculopathy. The examiner must indicate which left leg nerves have been affected by radiculopathy, i.e., whether the sciatic nerve or the femoral nerve or both have been affected by the left leg radiculopathy. The degree of any left lower extremity impairment must be addressed. The examiner must determine if the severity of each impaired nerve has been consistently the same since September 2006. If there has been a change in severity of each impaired nerve since September 2006, the examiner must provide an approximate date (month and year) for the change in severity. The examiner also must specifically address whether it is at least as likely as not that the Veteran has either bowel and/or bladder incontinence due to her service connected lumbar strain. If not, is it at least as likely as not that bowel and/or bladder incontinence is aggravated by the service connected lumbar strain. The examiner must provide a full description of any symptomatology and/or manifestations pertaining to any urinary and/or bowel incontinence. If present the symptoms of each must be differentiated from symptoms caused by lysis of peritoneal adhesions and/or recurrent urinary tract infections. 2. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs