Citation Nr: 1324201 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-17 960 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for the service-connected degenerative disc disease of the lumbar spine for the periods beginning on October 16, 1998 to March 20, 2000, beginning on July 1, 2000 to March 16, 2010, and beginning on June 1, 2010. 2. Entitlement to a total disability evaluation based on individual unemployability by reason of service connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran had active duty service from April 1960 to June 1981. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the RO. The Veteran filed his original claim of service connection for a lumbar spine disability in March 1982. It was denied in a May 1982 RO rating decision. In February 2006, the RO determined that there was clear and unmistakable error (CUE) in the May 1982 decision. The RO thereafter issued a February 2006 rating decision granting service connection for a back disability. Since the May 1982 final RO decision was found to contain CUE, in the February 2006 rating decision the RO assigned an initial rating of 20 percent for degenerative disc disease of the lumbar spine, effective beginning on July 2, 1981. See 38 U.S.C.A. § 5109A. Additionally, in a February 2012 rating decision, the RO granted temporary total ratings based on periods of hospitalization and convalescence for his service-connected low back disability, for the periods from March 21, 2000, to June 30, 2000, and from March 17, 2010, to May 30, 2010. See 38 C.F.R. § 4.30 (convalescent ratings). In February 2011, the Board denied the claim for a rating in excess of 20 percent for the period prior to October 16, 1998 for the service-connected lumbar spine degenerative disc disease, assigned an increased rating of 40 percent for the service-connected low back disability for period beginning on October 16, 1998, and remanded the issue of an increased rating in excess of 40 percent for the period beginning on October 16, 1998 and the claim for a TDIU rating, to include on an extraschedular basis, to the RO via the Appeals Management Center (AMC) in Washington, DC. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that, when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for a TDIU rating will be considered part and parcel of the claim for benefits for the underlying disability. Id. As was discussed in February 2011, a claim for a TDIU rating was raised by the record in that the Veteran was in receipt of SSA disaiblity benefits, in significant part based on disability due to the service-connected low back disability. The issue of entitlement to a TDIU rating is being remanded to the RO via the AMC in Washington, DC. FINDINGS OF FACT 1. For the period beginning on October 16, 1998, the Veteran is not shown to have experienced intervertebral disc syndrome with pronounced impairment manifested by persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief or unfavorable ankylosis of the lumbar spine. 2. For the period beginning on September 23, 2002, the Veteran is not shown to have experienced neurological disability or radiculopathy due to the service-connected degenerative disc disease of the lumbar spine. 3. For the period of the appeal beginning on September 23, 2002, the service-connected low back disability is not shown to have been manifested by intervertebral disc syndrome with incapacitating episodes for at least six weeks out of a period of twelve months. 4. For the period of the appeal beginning on September 26, 2003, the service-connected low back disability picture is not shown to be manifested by ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for the assignment of an initial evaluation in excess of 40 percent for the service-connected degenerative disc disease for the periods beginning on October 16, 1998 to March 20, 2000, beginning on July 1, 2000 to March 16, 2010, and beginning on June 1, 2010 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a including Diagnostic Codes 5292, 5293, 5295 (as in effect prior to September 23, 2002); 38 C.F.R. § 4.71a including Diagnostic Code 5293 (as in effect on September 23, 2002 through September 25, 2003); 38 C.F.R. § 4.71a including Diagnostic Codes 5237, 5238, 5243 (as in effect on September 26, 2003); 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A March 2005 VCAA notice letter explained the evidence necessary to substantiate the claim for service connection for a back condition. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In February 2006, the RO granted the Veteran's claim for service connection for a back condition, effective from July 2, 1981, so that the claim was not only substantiated, it was proven. Thus, the purpose of VCAA notice was fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from a notice of disagreement received in August 2006 with the initial rating of 20 percent assigned for the Veteran's service-connected low back disability in the February 2006 RO rating decision that granted service connection for low back disaiblity. With the grant of service connection the Veteran's claim was not only substantiated, it was proven, so that the purpose of VCAA notice, originally provided to the Veteran in March 2005, had been fulfilled. Thus no further VCAA notice was required with respect to the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a March 2005 letter, prior to the date of the issuance of the appealed February 2006 rating decision. Additionally, in May 2008 and February 2011, the RO sent notice letters indicating what was required to substantiate the claim for a higher initial rating and providing notice as to how a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice was in excess of and supplemented what was required by VCAA, since, as discussed above, this appeal arises from a notice of disagreement with a February 2006 RO rating decision that granted service connection for low back disability and assigned an initial rating of 20 percent. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). With regard to the duty to assist, the claims file contains service treatment records, reports of VA post-service treatment, reports of private treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). Additionally, the Veteran was afforded VA examinations in November 2005; in July 2007 with an April 2008 addendum opinion; and in April 2011. The Board finds these examination reports adequate for the purposes of adjudication of the issue of a higher initial rating for degenerative disc disease of the lumbar spine. There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners). Examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo, 26 Vet. App. at 105. The November 2005 VA examination report did not include review of the medical records. Nonetheless, the physician's report included an interview with the Veteran, an accurate history, and results of clinical examination reflecting in a well-explained manner the present status of his lumbar spine. As a result this examination report is sufficient for adjudication of the claim on appeal and is of a high probative value. The July 2007 VA examination with April 2008 addendum opinion and the April 2011 VA examination and opinion reflect a full review of the claims file, interview of the Veteran, physical examination, and fully reasoned medical opinions by appropriately qualified healthcare providers. As a result these examination reports are sufficient for adjudication of the claim on appeal and are of a high probative value. Pursuant to and in compliance with the Board's February 2011 remand instructions, the RO sought and obtained additional relevant private and VA records of treatment and provided the Veteran with a new VA examination for his low back disaiblity. In July 2012 the Veteran identified as relevant recent VA treatment records; the identified records, for treatment though August 2012, were obtained. These include records of treatment from a specifically identified VA physician in April 2011. The newly received records of treatment also included previously sought private records of treatment with Dr. B.M. at the Mayfield Clinic for the period from November 1998 to June 2000. See 38 U.S.C.A. § 5103A(a)-(d); Stegall v. West, 11 Vet. App. 268, 271 (1998) ("a remand by . . . the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders."). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. Factual Background The X-ray studies of the lumbar spine taken during service in July 1979 revealed disc space narrowing at L5-S1. The examiner commented that these disc changes could reflect the presence of degenerative disc disease. The Veteran underwent a VA orthopedic examination in April 1982. He reported injuring his back in approximately 1978 and continuing to experience low back pain that occasionally radiated to the left lower hip. The examination noted a mild scoliosis of the thoracic spine. The Veteran's range of forward flexion was limited to 80 degrees; his backward and lateral bending were limited to 15 degrees. No neurological abnormalities were found. The X-ray studies showed mild narrowing of L5-S1 and some mild anterior wedging of L-1, L-3, and L-4. The examiner diagnosed lumbosacral strain with probable degenerative disc disease. The private medical records dated from 1996 through 2000 showed that the Veteran, on occasion, sought treatment for lumbar back strain. In February 2011, the Board found that the service-connected lumbar disc disease was not shown to have been productive of severe attacks with intermittent relief for the period of appeal prior to October 16, 1998. 38 C.F.R. § 4.71a, pre-amended Diagnostic Code 5293 (2002). The Board found the record prior to October 16, 1998, did not present a basis to award a rating in excess of 20 percent under either the pre-amended or amended rating criteria. The decision is final and will not to be addressed further in this decision. See 38 U.S.C.A. § 7104. On October 16, 1998, the Veteran complained of increasing low back pain and was found to have a herniated disc at L4-5. The Veteran received an injection for pain relief. As found in the February 2011, the October 16, 1998 private medical record marked the date on which it is factually ascertainable that the service-connected lumbar disc disease had increased in severity; herniated disc disease was later confirmed, necessitating an injection for pain relief. The private medical record dated on October 16, 1998 showed that the Veteran received a Toradol injection for pain relief and was advised to remain off work for five days until a scheduled MRI that noted disc herniations at L4-5 and L5-S1. The Board awarded a rating of 40 percent effective beginning on October 18, 1998, and remanded the matter of a higher initial rating for further development and adjudication. The treatment records dated in June 1999 showed that the Veteran's back pain increased to where he requested epidural pain relief treatment. He received epidural steroid injections with minimal pain relief. Neurological disorders were not found. The private records from January 2000 indicated that conservative treatment failed and spinal decompression surgery was recommended. During examination in January 2000, the physician described the Veteran as having discomfort with flexion and extension. Notably, in January 2000, the physician referred the Veteran for surgery and recommended that he continue to remain off work for three weeks. The private medical records from Mayfield Clinic, dated from November 1998 to June 2000, showed that, in March 2000, the Veteran underwent a lumbar decompressive laminectomy to reduce pain in his lumbar spine. Follow-up treatment records indicated that, after the surgery, the Veteran was able to return to work as of June 5, 2000. As a result, in February 2012, the RO granted a temporary 100 percent rating for the period from March 21, 2000, to June 30, 2000. See 38 C.F.R. § 4.30. The Veteran underwent an October 2003 medical examination for the Social Security Administration (SSA) in conjunction with a disability claim. He related having a history of intermittent back pain beginning in 1976. Approximately 14 years later, he reported that his pain became more noticeable and that, in 2000, he underwent surgery, which provided some pain relief. Presently, he reported having constant sharp low back pain that radiated into his left hip. He also reported having occasional weakness in his left leg and numbness over the anterior aspect of the left thigh. The October 2003 SSA examination included a finding that the Veteran had a normal gait. His forward flexion was to 90 degrees, and the Veteran could stand on either leg without difficulty. His neurological examination was normal. The SSA examiner diagnosed the Veteran with traumatic and degenerative joint disease of the lumbar spine. He commented that the ranges of motion were good. The examiner opined that the Veteran appeared capable of a mild amount of ambulating, standing, bending, stooping, and lifting heavy objects. Based in part upon the October 2003 examination, SSA determined that the Veteran was entitled to disability insurance benefits beginning on February 1, 2003. The disability determination was based upon a primary diagnosis of discogenic and degenerative disorders of the back with a secondary diagnosis of obesity. The Veteran underwent a November 2005 VA spine examination. He related having a history of back pain beginning in the mid-1970's. By history, at his civilian job, he experienced gradually increasing low back pain. The pain increased to the extent where it was recommended that he have spinal decompression surgery in 2000. He believed the surgery was partially successful in alleviating his symptoms. Presently, the Veteran reported having chronic back pain that waxed and waned in severity. He denied having incapacitating episodes since at least 2002. Notably, he affirmed having weakness in his left lower extremity. An examination showed that he had a mildly antalgic gait slightly favoring the left lower extremity. His forward flexion was limited to 45 degrees with pain at the end of motion. Lumbar extension was limited to 15 degrees, and right and left lateral flexion was to 20 degrees. The examiner noted right and left rotation to 30 degrees. Moderate guarding was observed during motion. No changes were noted due to repetitive movement. He noted a 13 centimeter midline lumbar scar. Tenderness upon palpation was not found. The X-ray and MRI studies confirmed multilevel degenerative disc and joint disease. Neurological disorders were not found upon clinical testing. An electromyography report (EMG) of the left lower extremity did not reveal radiculopathy. The examiner diagnosed lumbar degenerative disc and joint disease status post L5, S1 herniated disc and surgical decompression. Although the Veteran was presently retired, the examiner opined the back disability would limit bending, lifting, leaning, carrying, twisting, turning and prolonged sitting and standing activities. The VA treatment records in March 2006 show that the Veteran visited the primary care clinic as a new patient. He reported continuing back pain; however, no new findings were noted. The Veteran was examined by VA in June 2007. The examiner thoroughly reviewed and discussed the medical history. He also interviewed the Veteran, who related having increased back pain in 2000 and missing several days of work. By history, he noted undergoing surgery which alleviated numbness symptoms of his left lower extremity, but did not alleviate his back pain. Following the surgery, the Veteran reportedly worked for a few months and then retired. Now he complained of a constant sharp pain in his lumbar area and the left buttock. The pain was not severe during rest, but increased upon movement. The Veteran denied associated neurological symptoms. An examination revealed a stable scar over the lumbar vertebrae that was not tender without skin breakdown or adherence to underlying tissue. Slight tenderness to palpation over the left side paralumbar spinal muscles was observed. The examination as to the Veteran's range of motion measurements showed the following: forward flexion limited to 50 degrees by severe pain; extension to 10 degrees limited by pain; normal left and right lateral flexion and lateral rotation. The examiner commented that the range of motion was limited due to pain rather than weakness, fatigue or incoordination. A neurological examination showed the lower extremity muscle strength, sensation, and deep tendon reflexes to be normal and equal, bilaterally. The examiner also noted that the Veteran did not report any incapacitating episodes of back pain during the past year. He diagnosed degenerative disc disease and degenerative joint disease of the lumbar spine. As part of his Substantive Appeal filed in June 2007, the Veteran expressed concern that VA inaccurately rated his back disability, since SSA found him to be 100 percent disabled. He reported having restricted motion, pain and incapacitating episodes necessitating bed rest. In April 2008, the VA examiner provided an addendum and clarified that, during range of motion testing, there was no additional loss following repeated movement against resistance. The VA treatment notes, dated in July 2008, showed that the Veteran described his back pain as stable. The examiner instructed him to continue his medication. The VA records of treatment from March 2006 to August 2012 revealed that, on March 17, 2010, the Veteran underwent an L4/5 foraminotomy for his spinal pain. The treatment records dated on March 30, 2010, noted a restriction of no lifting or bending, and the Veteran was to return in one month. After episodes of follow-up care, it was noted on May 25, 2010, that most of the pain had resolved, but that there was still some. The treating clinician noted that the Veteran was doing well after surgery and was encouraged to follow a lifetime restriction in lifting of 35 to 40 pounds. The clinician noted that there was no need to return to see the neurosurgery clinic unless his groin pain did not improve as planned. (As noted, in February 2012, the RO granted a temporary total rating for the period from March 17, 2010, to May 30, 2010, based on the Veteran's hospitalization and convalescence. See 38 C.F.R. § 4.130.) At a VA examination in April 2011, the examiner reviewed the claims file and accurately recounted the relevant medical history. The examiner found the Veteran to be a well nourished and well developed and in no acute distress. The spine, limbs, posture, gait, position of the head, curvatures of the spine, symmetry of appearance, and symmetry and rhythm of the spinal motion were all found to be within normal limits. The examiner found no objective evidence of pain. Range of motion was tested using a goniometer. Unless otherwise noted by the examiner, both active and passive range of motion were found to be identical. Except where otherwise noticed, range of motion upon three repetitions yielded identical results. Lumbosacral flexion was initially performed from 0 to 20 degrees, but with some encouragement, went from 0 to 95 degrees and then 0 to 110 degrees. Likewise, extension was initially just 0 degrees, but with encouragement became 0 to 35 degrees for each of the next two attempts. Both left and right lateral flexion was from 0 to 35 degrees on all 3 attempts. The range of motion was not affected by the Veteran's body habitus. However, the examiner found that the range of motion had been affected by the Veteran's very poor effort on initial testing. The examiner opined that, during a flare-up or following repetitive use, the Veteran would not be additionally limited by pain, weakened movement, excess fatigability, incoordination, or functional loss. The April 2011 examiner found that there was objective evidence of painful motion, spasm, weakness, and tenderness. The examiner found that there was no postural abnormality, fixed deformity (ankylosis), or abnormality of the musculature of the back. On neurological testing, the April 2011 VA examiner found that the Veteran had a strength of 5/5 throughout. Both tone and rapid alternating movements were within normal limits. Pronator drift was negative. There was no atrophy, fasciculation, or tremor. Deep tendon reflexes were 2/4 throughout and were symmetrical, bilaterally. Toes were down going, bilaterally. Sensory testing revealed a normal light touch and pinprick except in the left foot, which had a stocking glove fashion loss in the ankle. The examiner elaborated that this was not a dermatomal pattern such as would be consistent with being due to the service-connected back condition, but rather was in a pattern consistent with peripheral neuropathy and loss of the subcutaneous unmyelated C fibers in the dermal layer of the skin, which the examiner determined not to be related to the service-connected back condition in any way. Both vibration and double simultaneous extinction were intact. Cerebellar testing revealed a normal finger-to-nose and toe-to-finger test bilaterally. The Veteran's gait was unremarkable. He could rise to his toes and heels without difficulty. Romberg test was normal. He had moderate difficulty with a tandem gait. The examiner found that the Veteran had no incapacitating episodes during the past 11-year period since surgery in 2000 that required bed rest prescribed by a physician and treatment by a physician. In the diagnosis section of the examination report, the examiner stated the diagnostic impression of lumbosacral degenerative disc disease with mild anteriolisthesis of L3 on L4. The examiner opined that that the Veteran had full range of motion if encouraged, and that the Veteran had no incapacitating episodes of due to intervertebral disc syndrome. Rather, the Veteran stated that no one had sent him home to rest since he healed from his back surgery in 2000, 11 years ago. The examiner asserted that there was no objective evidence of pain, painful motion, functional loss due to pain, any weakened movement, excess fatigability or incoordination. There were no noted to be no additional limits on functional ability during flare-ups or additional limitation of motion during flare-ups. There were no separately ratable neurological deficits due to the service-connected low back disability. The April 2011 examiner noted that the Veteran did express the subjective finding of sensory loss due to pinprick in the left ankle, but reiterated that this was in a stocking glove fashion rather than a dermatomal fashion, so this would not be due to his back condition but rather due to loss of the small subcutaneous unmyelated c fingers in the dermal layer of the skin since there was no anatomical linkage between the back and these nerves. The examiner elaborated that it was a findings that could only be due to peripheral neuropathy of some other etiology. It was the opinion of the VA examiner that after all indicated studies had been performed, the Veteran's condition of peripheral neuropathy of the left lower extremity was not caused by or a result of his service-connected lumbosacral condition, since there was no anatomical nexus to link the two conditions; the peripheral neuropathy was completely unrelated to the service-connected back disability and due to another etiology entirely. The April 2011 VA examiner provided credentials including an MD and a Ph.D.; being certified by the American Board of Neurology; and being eligible for certification by the American Board of Interventional Pain Physicians. The VA records of treatment in April 2011 indicated that the Veteran complained of having back pain with the left leg being weaker than the right. He was referred to neurosurgery. Consistent with the April 2011 VA examination results, the July 2011 VA neurology consult report indicated that strength of the left lower extremity was 4/5 or 5/5 at all levels and reflexes of the left lower extremity to be +2 or +3 at all levels. The diagnoses were those of multilevel lumbar disc disease, and persistent numbness of the left lower extremity. The loss of sensation of the left lower extremity was noted to be in a glove distribution throughout the calf and foot, a loss of sensation that was described extensively in the Veteran's VA treatment records over the years, and a pattern that the April 2011 VA examiner carefully explained was not related to the Veteran's degenerative disc disease of the lumbar spine. Analysis Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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. A claim such as this one, placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved, is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The recitation of evidence and analysis will focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the claim on appeal. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran was assigned a 20 percent rating for the service-connected degenerative disc disease of the lumbar spine, effective on July 2, 1981, and a 40 percent disability rating, effective on October 16, 1998. In its February 2011, the Board denied the claim for a rating in excess of 20 percent for the period prior to October 16, 2008. See 38 U.S.C.A. § 7104. Thus, the rating for the period prior to October 16, 1998, is no longer before the Board. Id. Also in its February 2011 decision, the Board assigned a rating of 40 percent for the period beginning on October 16, 1998, and remanded the matter of whether a higher rating was assignable beginning on that date. For the period from October 16, 1998, forward the Veteran asserts that a rating in excess of 40 percent is appropriate, particularly in light of SSA awarding a 100 percent disability rating is warranted in his case. The Board notes the regulatory criteria governing SSA determinations are significantly different than the rating schedule governing VA disability determinations. In this instance, by following applicable VA regulations, VA has assigned the present 40 percent rating. Also as noted, in light of newly received evidence, the February 2012 RO rating decision additionally assigned temporary total ratings for the periods beginning on March 21, 2000, to June 30, 2000, and from March 17, 2010, to May 30, 2010, based on periods of hospitalization and convalescence for service-connected degenerative disc disease of the lumbar spine. The schedular criteria for evaluating disabilities of the spine have undergone revision twice during the period in question. The first amendment, affecting Diagnostic code 5293, was effective on September 23, 2002. The next amendment affected general diseases of the spine and became effective on September 26, 2003. The new regulations may only be applied from the date they became effective forward, regardless of whether the new criteria are more favorable to the claim; however, as of the effective date of new regulations that took effect during the pendency of the claim, the Veteran's claim should be rated pursuant to the set of criteria which is more favorable to his claim. See VAOPGCPREC 3-2000. The Board will analyze this matter under each of the three consecutive sets of applicable rating criteria in turn. Higher Initial Rating for degenerative disc disease of the lumbar spine, with consideration of the criteria as in effect from October 16, 1998, to September 22, 2002. The Board will first consider whether a rating in excess of 40 percent for the service-connected degenerative disc disease of the lumbar spine is justified based on the schedular criteria in effect prior to September 23, 2002. After careful review of the record, the Board finds that the service-connected disability picture more nearly resembled the criteria for a 40 percent rating under pre-amended Diagnostic Code 5293 for the period of the appeal beginning on October 16, 1998. See 38 C.F.R. § 4.71a, including Diagnostic Code 5293 (2002). Under the pre-amended Diagnostic Code 5293, the 40 percent rating criteria contemplates severe intervertebral disc syndrome with recurring attacks and intermittent relief. For the time period prior to September 26, 2003 (which includes the time period prior to September 23, 2002), Diagnostic Code 5292, concerning limitation of motion of the lumbar spine, provides for a rating no higher than 40 percent. Thus, an initial rating higher than the one currently assigned is not possible under that Code section. Prior to September 26, 2003, Diagnostic Code 5295 provides a 10 percent evaluation for lumbosacral strain with characteristic pain on motion. A 20 percent rating applies where there is evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating is assigned for severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Thus, for the period in question, Diagnostic Code 5295 does not provide for a rating in excess of 40 percent. As such, this Code section also cannot serve as a basis for a higher evaluation here. Because there is no showing of vertebral fracture or ankylosis, Diagnostic Codes 5285, 5286 and 5289 are not for application. The only remaining relevant provision for consideration prior to September 23, 2002, is Diagnostic Code 5293, pertaining to intervertebral disc syndrome. Under that Code section, a 60 percent rating is warranted for pronounced impairment, with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. The condition is rated as 40 percent disabling if severe, with recurring attacks with intermittent relief. Moderate disability with recurring attacks is rated as 20 percent disabling. The Board finds that the preponderance of the evidence is against claim for a 60 percent rating pursuant to the pre-amended Diagnostic Code 5293 since there is no showing of neurological impairment due to pronounced intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293. (Emphasis added.) Although the record references complaints of numbness symptoms prior to the March 2000 surgery, it does not include findings of persistent sciatic nerve neuropathy, such as absent ankle jerks, or that the Veteran had little intermittent relief. Id. The newly received records of treatment at Mayfield Clinic, beginning in November 1998, show that the Veteran had mild weakness of his left extensor halluces longus muscle and that that he had "no other other objective neurologic deficit." A record of treatment at Mayfield Clinic in February 2000 indicates that the Veteran had symptoms "classic for neurogenic claudication," but also that lower extremity reflexes were 2+ at the knees and 1+ at both ankles. He was noted to have normal bulk, strength and tone, and sensation was noted to be unimpaired. These symptoms are no consistent with degenerative disc disease that is pronounced in severity, with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Thus, on this record, the disability picture prior to March 2000 does not warrant the assignment of higher than a 40 percent rating. For the period after the Veteran's convalescence from the March 2000 surgery, beginning July 1, 2000, the treatment and examination records consistently show that there has been no radiculopathy or other neurological disability associated with the service-connected degenerative disc disease of the lumbar spine. The VA examination results and treatment records show by a preponderance of the evidence that the Veteran has not experienced sciatic neuropathy or other neurological findings appropriate to the site of the diseased disc since his post-surgery period of convalescence ended in June 2000. An EMG was negative and clinical evaluation for associated neurological findings has repeatedly been negative. The April 2011 VA examiner explained this aspect of the examination very well, and reasoned that the Veteran's left ankle symptoms were in a stocking glove pattern that indicated a peripheral neuropathy that had nothing to do with the service-connected low back disability. The Board notes that this loss of sensation and loss of sense of pain is described extensively in the Veteran's VA treatment records through the years and has been a substantial source of impairment for the Veteran; however, the April 2011 VA examiner's opinion is highly persuasive that this loss of sensation and loss of sense of pain in the left ankle and foot is not related to his degenerative disc disease of the lumbar spine. The April 2011 VA examiner provided credentials including an MD and a Ph.D.; being certified by the American Board of Neurology; and being eligible for certification by the American Board of Interventional Pain Physicians. The examiner's opinions and findings are thorough and well-explained and he appears to be expert in two relevant fields of medicine-neurology and pain intervention. As a result, the April 2011 VA examiner's opinion is of a very high probative value. Accordingly, the Veteran is not entitled to a rating in excess of 40 percent under the schedular criteria for disabilities of the spine as in effect prior to September 23, 2002. In conclusion, under the rating criteria as in effect prior to September 23, 2002, the preponderance of the evidence is against a rating in excess of 40 percent for the Veteran's degenerative disc disease of the lumbar spine for the periods from October 16, 1998 to March 20, 2000, from July 1, 2000 to March 16, 2010, or beginning on June 1, 2010. Consideration of Criteria as in effect beginning on September 23, 2002, to September 25, 2003 Effective on September 23, 2002, the rating criteria for intervertebral disc syndrome under Code section 5293 underwent revision. As revised, for the period from September 23, 2002 to September 25, 2003, Diagnostic Code 5293 states that intervertebral disc syndrome is to be evaluated either based on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 the separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under Diagnostic Code 5293, as in effect from September 23, 2002, to September 25, 2003, a 10 percent rating is warranted for incapacitating episodes of intervertebral disc syndrome having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for 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 for incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent disability rating is assignable where the evidence reveals incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to this newer version of Diagnostic Code 5293 defines an "incapacitating episode" as "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." "Chronic orthopedic and neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so." The evidence does not establish that the Veteran experienced incapacitating episodes, as defined by Note 1 to Diagnostic Code 5293, with a total duration of at least 6 weeks during a previous 12-month period, at any time, beginning on and after September 23, 2002. Therefore, the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 to September 25, 2003, cannot serve as a basis for the next higher rating of 60 percent due to incapacitating episodes. There is no evidence of any bed rest prescribed by a physician. The highly probative medical opinion of the April 2011 medical examination found that the Veteran had not experienced incapacitating episodes since the time of his surgery in the year 2000. This was based on a detailed review of the medical opinion evidence of record and according to the history provided by the Veteran at the April 2011 VA examination. There is no evidence of substantial probative weight indicating otherwise. Thus, the preponderance of the evidence is against a higher rating of 60 percent based on the Veteran having incapacitating episodes for six weeks more out of a period of twelve months under Diagnostic Code 5293 as in effect from September 23, 2002, to September 25, 2003. Also under the revised version of Diagnostic Code 5293, as in effect from September 23, 2002 to September 25, 2003, the Board must consider whether separate evaluations for chronic orthopedic and neurologic manifestations of the service-connected back disability, when combined under 38 C.F.R. § 4.25 with evaluations for all other disabilities, results in a higher combined disability rating. The Board will first analyze the orthopedic manifestations of the service-connected degenerative disc disease of the lumbar spine. As noted, one relevant Diagnostic Code for consideration in this regard is Diagnostic Code 5292, concerning limitation of motion of the lumbar spine. No other section provides for a rating in excess of 40 percent. As the medical evidence does not demonstrate functional impairment comparable to ankylosis, even with consideration of additional functional impairment due to pain, Diagnostic Codes 5286 and 5289 are not for application. Moreover, Diagnostic Code 5295, for lumbosacral strain, does not provide a rating in excess of 40 percent. There are no other relevant Code sections to consider in evaluating orthopedic manifestations. As discussed, in the present case, there are no objective neurological findings relating to the lower extremities shown from June 2000 forward. Objective neurological testing of the lower extremities has been essentially normal for disability potentially referable to service-connected discogenic disease. The April 2011 VA examiner was very thorough as to why this is so, and the medical opinion to this effect is of a very high probative value. Thus, Diagnostic Codes 8522 to 8530 are not potentially applicable. As instructed by the revised version of Diagnostic Code 5293, as in effect from September 23, 2002, through September 25, 2003, the Board has considered the chronic orthopedic and neurologic manifestations of the service-connected degenerative disc disease of the lumbar spine. It has been determined that the Veteran is entitled to a 40 percent rating under Diagnostic Code 5293. Nor is he entitled to a separate rating under Diagnostic Code 8520, 8521, 8524, 8525 or 8526 based on separately ratable neurologic manifestations because there have been none since June 2000. As discussed at length by the April 2011 VA examiner, and as is reflected by several reports of VA examinations, there are no separate neurologic manifestations to combine with the orthopedic manifestations, such as between Diagnostic Code 5292 (limitation of motion of lumbar spine, with a maximum available rating of 40 percent) and neurological ratings codes for disabilities that may relate to diseased discs of the lumbar spine, such as 8520, 8521, 8524, 8525 or 8526, under 38 C.F.R. § 4.25. Thus, a rating in excess of 40 percent is not possible under this methodology. Therefore, in considering the revised version of Diagnostic Code 5293 in effect from September 23, 2002 to September 25, 2003, the Veteran does not warrant an increased service-connected disability evaluation for any time beginning on September 23, 2002, if he is rated separately for the orthopedic and neurologic manifestations of the disability at issue. As such, a grant of such separate ratings is not for application here. Rather, the current single rating of 40 percent for degenerative disc disease of the lumbar spine pursuant to Diagnostic Code 52983 remains the highest rating assignable under the criteria in effect from September 23, 2002 through September 25, 2003, for the period in question. The Veteran is in receipt of the highest rating available under the earlier criteria contain in Diagnostic Codes 5292 and 5295. Because the preponderance of the evidence shows that the Veteran has not experienced neurological disability of either lower extremity as a result of his service-connected degenerative disc disease, the criteria for a rating of 60 percent under pre-amended Diagnostic Code 5293, for pronounced disability with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the disease disc, with little intermittent relief, are not met. Thus, on this record, a rating in excess of 40 percent is not assignable for the period beginning on October 16, 1998, under the version of Diagnostic Code 5293 as in effect prior to September 26, 2003. Based on the analysis of those criteria, the Veteran remains entitled to no more than a 40 percent evaluation for service-connected degenerative disc disease of the lumbar spine for the period beginning on September 26, 2003. Period from September 26, 2003, with consideration of criteria as in effect from September 26, 2003, forward. The diagnostic criteria pertinent to spinal disabilities in general were again revised effective on September 26, 2003 (as codified in relevant part at 38 C.F.R. § 4.71, Diagnostic Codes 5237, 5238, 5243 (2004-2012). Under these relevant provisions, the General Rating Formula for Diseases and Injuries of the Spine provides that a 40 percent evaluation is assignable based on forward flexion of the thoracolumbar spine restricted to 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Finally, unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. As there is no showing of ankylosis of the entire thoracolumbar spine, the preponderance of the evidence is against the next higher rating of 50 percent pursuant to the General Rating Formula for Diseases and Injuries of the Spine. All evidence indicates that the Veteran has useful range of motion of the spine. As instructed by Note (1) to the General Rating Formula for Disabilities of the Spine, the rater is to separately evaluate any associated objective neurologic abnormalities. Moreover, unlike under the schedular criteria in effect from September 23, 2002, to September 25, 2003, assignment of a neurologic rating is not dependent on whether it results in an increase to the Veteran's combined rating for all disabilities. As discussed, as shown in all relevant VA examinations, and as discussed in the highly probative medical opinion of the April 2011 VA examiner, there is no indication of neurological disability or radiculopathy of either lower extremity that is associated with the service-connected degenerative disc disease of the lumbar spine, at any time since June 2000, prior to the effective date of the criteria, September 26, 2003. Thus, a separate compensable rating based on neurological disability associated with the lumbar spine disc disease is not assignable under the criteria as in effect from September 26, 2003. In addition to evaluating intervertebral disc syndrome (Diagnostic Code 5243) under the General Rating Formula for Diseases and Injuries of the Spine, outlined above, it may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. The rating criteria for intervertebral disc syndrome based on incapacitating episodes remain the same as those effective September 23, 2002, as outlined above. The preponderance of the competent clinical evidence of record is against an evaluation in excess of 40 percent for the service-connected low back disability at issue based on incapacitating episodes of intervertebral disc syndrome, because there is no showing of incapacitating (to include bed rest prescribed by a physician) episodes for the period beginning on September 26, 2003. As the April 2011 VA examiner outlined, with a very fully reasoned explanation of very high probative value, and as discussed, the Veteran has not experienced incapacitating episodes due to his service-connected intervertebral disc syndrome at any time since his surgery in the year 2000, prior to the date regulations pertaining to rating with consideration of incapacitating episodes went into effect. Thus, as discussed, the preponderance of the evidence indicates that the Veteran has not experienced incapacitating episodes over a period of six weeks or more during a twelve-month period for any time for the period beginning on October 16, 1998. Thus, on this record, a higher rating based on the Veteran having incapacitating episodes is not assignable in this case. In sum, the preponderance of the evidence is against a rating in excess of 40 percent for the period beginning on September 26, 2003 as considered under the rating criteria in effect on that date. Additional Matters Considered In view of the Court's holding in Fenderson, the Board has considered whether the Veteran was entitled to a "staged" rating for his service-connected disability, as the Court has indicated can be assigned in this type of case. However, upon reviewing the entire record in this case, the Board finds that at no time since October 16, 1998, with the exception of the two periods when a temporary total rating had been awarded pursuant to 38 C.F.R. § 4.30, is a higher rating assignable. The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration for rating of the Veteran's service-connected degenerative disc disease of the lumbar spine. The governing norm in such 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 periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). 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 referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the criteria reasonably describe the Veteran's level of disability. This is particularly true in light of the April 2011 VA examination results, which indicate that once the Veteran applied full effort rather than poor effort, he had full range of motion of the lumbar spine with no incapacitating episodes, no additional disability on repetitive testing, and no additional disability due to factors such as pain, fatigability, or incoordination. As discussed and reflected at length in the highly probative examination report of the April 2011 VA examination, the Veteran's disability of the lumbar spine is not shown to be exceptional or unusual. Accordingly, referral to the Director, Compensation and Pension, for extraschedular consideration of the Veteran's claim for a higher initial rating for the service-connected degenerative disc disease of the lumbar spine is not warranted. As will be discussed, the matter of entitlement to a TDIU rating was referred by the RO to the Director, Compensation and Pension, for extraschedular consideration. See generally 38 C.F.R. § 4.16(b) (Re: referral to Director, Compensation and Pension, for consideration of extraschedular TDIUs). ORDER An increased rating in excess of 40 percent for the service-connected degenerative disc disease of the lumbar spine for the periods beginning on October 16, 1998 to March 20, 2000, from July 1, 2000 to March 16, 2010, or beginning on June 1, 2010 is denied. REMAND As noted, the Board finds that a claim for a TDIU rating must be addressed, as the Veteran asserts that he has been rendered unemployable by his service-connected degenerative disc disease of the lumbar spine. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter was previously remanded to the RO in February 2011 decision. The Board notes that, in February 2012, the RO received the Veteran's formal application for a TDIU rating (VA Form 21-8940) and, in June 2012, obtained an opinion from the office of the Director, Compensation and Pension Service that found that a TDIU rating on an extraschedular basis was not warranted. However, the claims file contains no indication that the RO has issued a rating decision regarding the current claim for a TDIU rating. Accordingly, this remaining matter is REMANDED for the following action: After completing any indicated development, the RO should readjudicate the claim for a TDIU rating to include on an extraschedular basis in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative with a fully responsive Supplemental Statement of the Case as to issue of a TDIU rating and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs