Citation Nr: 1324369 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 99-15 628A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a disability manifested by sore throat, to include as due to exposure to herbicides. 2. Entitlement to ratings for lumbosacral strain in excess of 10 percent prior to November 22, 2010, and in excess of 40 percent from that date. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran served on active duty from June 1964 to May 1967, and from April 1970 until his retirement in August 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A February 1998 rating decision denied the Veteran service connection for a disability manifested by a sore throat. A July 2003 rating decision confirmed and continued the 10 percent rating in effect for the Veteran's low back disability. This case was previously before the Board in June 2007, August 2010 and March 2011, when it was remanded for additional development of the record and/or to ensure due process. A December 2010 rating decision increased to 40 percent the rating for the Veteran's low back disability, effective November 22, 2010. As he has not expressed satisfaction, the matter remains on appeal. AB v Brown, 6 Vet. App. 35 (1993). The issue is characterized to reflect that staged ratings are assigned, and that both "stages" remain on appeal. In May 2006 a Travel Board hearing was held before an Acting Veterans Law Judge. A May 2013 letter informed the Veteran that the Acting Veterans Law Judge was no longer employed by the Board, and he was offered the opportunity for another hearing before a Veterans Law Judge who would decide his appeals. He responded later that month, indicating he did not want another hearing. At a video conference hearing before the undersigned in January 2002, the Veteran provided testimony regarding the claim of service connection for disability manifested by a sore throat. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. With respect to the January 2002 hearing, the undersigned specifically noted that to establish service connection it must be shown you have a chronic problem and that it is related to service. The Veteran's testimony in response to the questions posed by the undersigned focused on the elements necessary to substantiate the current appellate claim; i.e., by his testimony he demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. At a hearing before a Decision Review Officer (DRO) at the RO in December 2004, the Veteran was assisted by his representative, and both the DRO and the representative elicited testimony regarding the severity of his low back disability. At the Travel Board hearing before an Acting Veterans Law Judge in May 2006, the Veteran was not advised of what is needed to substantiate his claims. Nonetheless, he was assisted by a representative, and pertinent testimony was given regarding his throat symptoms in service and his current treatment for his low back disorder. The Board finds that the Veteran is not prejudiced by any Bryant-mandated notice omissions, as he has been shown to have actual knowledge of the evidence needed to substantiate his claims that is lacking. At the hearings he was asked to clarify his contentions. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) , and he has not alleged any prejudice in the conduct of the hearings. A January 2013 rating decision granted the Veteran a total disability rating based on individual unemployability due to service-connected disabilities. FINDINGS OF FACT 1. It is not shown that the Veteran has a current disability manifested by sore throat that is related to service, to include as due to exposure to Agent Orange therein. 2. Prior to June 14, 2004, the Veteran's low back disability was manifested by no more than slight limitation of motion; from June 14, 2004, until November 22, 2010, the Veteran's low back disability was manifested by moderate limitation of motion, with forward flexion not more than 60 degrees; from November 22, 2010, forward flexion has been to no more than 30 degrees; the thoracolumbar spine is not ankylosed. CONCLUSIONS OF LAW 1. Service connection for a disability manifested by sore throat, to include as due to exposure to Agent Orange, is not warranted. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.307, 309 (2012). 2. The Veteran's service-connected low back disability warrants staged ratings of 10 percent prior to June 14, 2004; 20 percent from June 14, 2004 until November 22, 2010, and 40 percent but no higher from November 22, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 38 C.F.R. § 4.71a, Diagnostic Codes 5292 (as in effect prior to September 26, 2003), 5293(as in effect prior to September 23, 2002), 5237, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of his claims. While he did not receive complete notice prior to the initial rating decision, August 2003 and April 2008 letters provided essential notice prior to the readjudication of his claim. See Mayfield, 444 F.3d at 1328. The letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he/she was responsible for providing. An April 2006 letter also informed the appellant of disability rating and effective date criteria. An October 2012 supplemental statement of the case readjudicated the matters. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Factual background, legal criteria and analysis Service connection The Board has reviewed all of the evidence in the appellant's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 75 Fed. Reg. 53202 (August 31, 2010), 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which a veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 72 Fed. Reg. 32,395 (2007). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a nonpresumptive direct-incurrence basis. The Veteran's STRs show that he was seen on numerous occasions for complaints of a sore throat. The assessments included viral syndrome, sore throat, tonsillitis, laryngitis and an upper respiratory infection. On a report of medical history in May 1987 at the time of the separation examination, the Veteran denied throat trouble. On May 1987 service retirement examination the throat was normal on clinical evaluation. Service department medical records following service disclose the Veteran was seen in March 1991 and January 1993 for complaints including a sore throat. The assessment on each occasion was sinobronchial syndrome. On September 1997 VA general medical examination the Veteran reported intermittent throat problems, occurring once or twice a month, and lasting for two to three days. Following an examination, the diagnoses included gastroesophageal reflux disease, by history and throat pain secondary to allergic rhinitis. On VA ear, nose and throat examination in December 2002, the Veteran described a history of frequent sore throats, at least two per week. He said he lost his voice at least twice a month. The examiner noted the Veteran's primary complaint was recurring sore throat, but he was unable to render a diagnosis. He observed he felt the Veteran was trying to relate this to Agent Orange, but he was unable to provide a logical connection. He also felt the Veteran should have seen an immunologist or allergist a long time ago. On VA Agent Orange examination in October 2003, the Veteran asserted he had experienced frequent sore throats since 1967, and that he felt they were related to Agent Orange exposure. The impression was frequent sore throats. At the hearing before the undersigned in January 2002, the Veteran asserted his throat condition was an ongoing problem, during service and in retirement since. He explained that his sore throats were a recurring problem, and that he continued to have them at least two to three times a week. Regarding his service-connected lumbosacral strain, he stated that there was still pain after medication for such wore off. He also testified he cannot do any prolonged walking, and is in pain all the time. In a statement dated in May 2006, a private physician related she had treated the Veteran since November 2004. She reviewed some medical records from the Veteran's treatment in service and stated he was seen multiple times for sinusitis, bronchitis, laryngitis and conjunctivitis. She concluded such visits were most likely secondary to some allergy or exposure. She added the Veteran had recurrent sinusitis and laryngitis, and that these conditions were at least likely related to the conditions in service. On July 2007 VA examination the Veteran reported he had had intermittent problems with his sinuses since the 1970's. He also stated he had a sore throat two to three times weekly with associated laryngitis. The diagnosis was mild chronic sinusitis, and the examiner concluded the Veteran's disease process primarily involved the sinuses. On VA ear, nose and throat examination in April 2008, the examiner noted he reviewed the claims folder. He noted the Veteran had been evaluated in October 2007 and a laryngoscopy was normal, and that no ear, nose and throat pathology was found. It was stated that gastroesophageal reflux disease (GERD) could be a factor. The Veteran related he had had constant sore throats since the 1970's, while he was in service. The diagnosis was hiatal hernia with GERDe, with chronic sore throat. The examiner commented the Veteran's condition was less likely than not related to the medical condition noted in service, and was less likely than not related to Agent Orange. On VA examination of his throat in November 2010, the Veteran reported problems with a sore throat dating to the 1970's. He stated he loses his voice and his voice changes quality. It was noted that he was on medication for GERD, which resulted in improvement of his symptoms. He claimed that he used to have a sore throat daily, but not he had them once a week. The impression was GERD. On June 2011 VA nose, sinus, larynx and pharynx examination, the Veteran related he began to experience frequent sore throats in the 1970's, and they had continued since then. The diagnosis was recurrent pharyngitis, secondary to GERD. The examiner concluded the Veteran's sore throats were most likely caused by or a result of his GERD. He observed that the Veteran had had recurrent sore throats since the early 1970's, but that evaluations over the previous four years had not revealed a local throat condition. He pointed out the Veteran had an allergic rhinitis, and that post nasal drainage could cause throat irritation and his present symptoms, but this was not verified by examination. The examiner added that gastrointestinal studies demonstrated gastroesophageal reflux, which was likely the cause due to no throat/laryngeal abnormalities being present. This was suggested after multiple ear, nose and throat evaluations. He opined it was very unlikely that the Veteran's symptoms were related to herbicide exposure or an immunological condition as there were no reasonable findings of such. Based on his clinical experience, an examination and a review of the Veteran's medical records, he concluded the Veteran's symptoms were most likely caused by his long-standing gastroesophageal reflux. In September 2012, the examiner who conducted the June 2011 VA examination was asked to provide additional comments concerning the opinion he had expressed. He indicated it was less likely than not that the cause of the Veteran's sore throats in service was GERD. It was less likely than not that the Veteran's post-service sore throats are related to an event, injury or disease incurred in service, to include exposure to herbicides. He indicated that after another review of the STRs, it was evident that the sore throats the Veteran experienced in service were related to upper respiratory infections/tonsillitis. There were always confirming physical findings in the service treatment records. The Veteran's post service chronic sore throats did not appear to be related to upper respiratory infections and there were no throat/pharynx physical findings. The Veteran had GERD, which made it most likely that his present (postservice) sore throats were related to the reflux of acid into his posterior pharynx. It is not in dispute that the Veteran reported he had sore throats on many occasions during service, that his initial complaints of sore throats following service were in 1991, and that he has continued to have such complaints since. The Board acknowledges that a private physician apparently reviewed some of the Veteran's service treatment records and stated the Veteran was treated for sinusitis, bronchitis, laryngitis and conjunctivitis and that his current sinusitis and laryngitis were related to his in-service complaints. As noted above, a VA physician initially stated following his June 2011 examination that the Veteran had recurrent pharyngitis due to GERD; no throat condition had been recently demonstrated. He added that the Veteran's sore throats were related to GERD. Following a request from the RO for clarification, the examiner stated in September 2012, following another review of the service treatment records, that the Veteran's sore throats in-service were associated with upper respiratory infections. The sore throats he experienced following service are unrelated to such symptoms. He added there were no positive findings pertaining to the throat or pharynx. The Board acknowledges the conclusions of the Veteran's private physician to the effect the Veteran has sinusitis and laryngitis that are related to service. An evaluation of the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. The credibility and weight to be attached to such opinions are within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Here, the Board finds the June 2011 and September 2012 opinions of the VA examiner to warrant the greater probative weight. The Board concedes the Veteran's private doctor had access to some of the Veteran's service treatment records. She did not, however, review the entire medical record, and the opinion does not reflect familiarity with the complete disability picture. Furthermore, her opinion is unaccompanied by a rationale for her conclusion. In contrast, the VA examiner explained the reasoning by his opinion, specifically noting that the sore throats the Veteran experienced in service resulted from an etiology different from those the Veteran experienced following service based on clinical notations at the times. Accordingly, the Board finds the VA opinions to be more probative. The Veteran has, at times, suggested his sore throats are related to his exposure to Agent Orange. The Board concedes the Veteran served in Vietnam. However, his assertions that he has a throat condition that is related to exposure to Agent Orange are not competent evidence in the matter. The Board acknowledges the Veteran is competent to report his symptoms. Laypersons are competent to provide opinions on some medical issues; however, the specific questions in this case, the diagnosis and etiology of a throat disorder fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Whether a condition is related to exposure to Agent Orange is a medical question that requires medical expertise. The Veteran has not presented any medical opinion that relates a throat disorder specifically to exposure to Agent Orange in service. (The private medical opinion that the Board found lacking relates the throat problem to unspecified exposures in service. The only medical opinion directly addressing a nexus to Agent Orange is that offered on April 2008 and June 2011 VA examinations. It was then specifically indicated that the Veteran's symptoms were not related to exposure to Agent Orange. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a disability manifested by sore throats, to include as due to Agent Orange. Increased rating for a back disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board notes that, during the course of this appeal, specifically, on September 23, 2002 and September 26, 2003, new regulations for the evaluation of service-connected disabilities of the spine became effective. VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the Veteran. If the application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g) (West 2002). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3-2000 (April 10, 2000). Under the old version of the regulations, a 60 percent evaluation may be assigned for intervertebral disc syndrome which is pronounced, 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, little intermittent relief. Where severe, with recurring attacks with intermittent relief, a 40 percent evaluation is assignable. When moderate, with recurring attacks, a 20 percent evaluation may be assigned. When mild, a 10 percent evaluation may be assigned. Diagnostic Code 5293 (as in effect prior to September 23, 2002). Under the interim revised criteria for intervertebral disc syndrome which became effective September 23, 2002, a 10 percent evaluation was warranted when there was evidence ov incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation was indicated where there was evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation, under those same regulations, required demonstrated evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation required incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). Those criteria remained in effect with the revision effective September 26, 2003, except the Diagnostic Codes changed. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (effective September 26, 2003). For the purpose of evaluations under the revised criteria, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Pursuant to the interim revised rating criteria, intervertebral disc syndrome can also be evaluated by combining, under 38 C.F.R. § 4.25, separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. When evaluating on the basis of chronic manifestations, orthopedic disabilities should be evaluated using the criteria for the most appropriate diagnostic code or codes, and neurologic disabilities should be evaluated separately using the criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Codes 5293 (effective September 23, 2002) and 5243 (effective September 26, 2003). A 40 percent evaluation is assignable for severe limitation of motion of the lumbar spine. When moderate, a 20 percent evaluation may be assigned. When slight, a 10 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (as in effect prior to September 26, 2003). A 40 percent evaluation may be assigned for lumbosacral strain which is severe; 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. A 20 percent evaluation may be assigned for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 10 percent evaluation is assignable with characteristic pain on motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (as in effect prior to September 26, 2003) Under the General Rating Formula for Diseases and Injuries of the Spine which became effective September 26, 2003, a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 20 percent evaluation is warranted where there is evidence of 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 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is grater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of the height. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The Veteran submitted a claim for an increased rating for his low back disability in January 2002. VA outpatient treatment records show the Veteran had complaints of low back pain during 2002. No specific findings concerning the back were made. In May 2004 The Veteran reported that his back was getting stiffer and that he had more recurrent pain and difficulty with movements. An examination revealed he had poor range of motion, especially with forward flexion. His back was noted to be stiff generally. On June 14, 2004 VA examination of the spine, the Veteran reported sharp pain that radiated during flare-ups to the left lower extremity. It was noted that he walked with a cane. He said he was able to walk one mile every day. Examination revealed that he had pain throughout flexion and at the end of extension. Forward flexion was to 45 degrees; extension was to 20 degrees; lateral flexion was to 15 degrees, bilaterally; and rotation was to 30 degrees, bilaterally. There was a pulling sensation at the end of lateral flexion, and mild discomfort during rotation to both sides. There was decrease in range of motion and decrease in spine function during flare-ups and on repetitive movements. There was no tenderness or spasm. He did not have guarding. Sensory and motor examinations were normal. Lasegue's sign was positive. The diagnoses were degenerative disc disease and degenerative joint disease of the lumbosacral spine with episodic strain. There was no radiculopathy on examination. The examiner noted that no neurological deficit was found. The Veteran was seen in a VA outpatient treatment clinic in July 2004. He reported left lower back pain that radiated down his left leg. The pain was not controlled with medication. On examination, the Veteran experienced reproduced pain in the left lower back and left lower extremity upon lying down, bending the knee to 45 degrees and inversion of the left leg. He had hypersensitivity of the left leg. Reflexes were hyperactive at about 3/4 bilaterally. The assessments were chronic neuropathy of the sciatic nerve and chronic low back pain. His medication for the pain was increased. In a statement received in August 2004, the Veteran's spouse asserted that the his back hurt all the time. In October 2004 the Veteran reported occasional left lower extremity paresthesia. There was no weakness or bowel/bladder problem. An examination revealed no deformity, tenderness or muscle spasm of the spine. Straight leg raising was negative and deep tendon reflexes were 2+ and equal. A motor evaluation was 4.5/5 over the L3-4, L4-5 and L5-S1 distribution. The assessment was degenerative joint disease of the lumbar spine. Private medical records show the Veteran was seen for back complaints in November 2004. He had pain with raising the right leg to 60 degrees. At the DRO hearing in December 2004, the Veteran testified he had limited movement and pain due to his low back disability. He described how there had been many occasions when his back hurt so much he could not go to work. Statements from W.C., Sr., include one in November 2005, wherein he stated he had known the Veteran for more than 30 years, and had worked with him on many occasions. He related he had fist hand knowledge of the pain the Veteran experienced in his low back. Additional VA outpatient treatment records include a June 2005 notation that the Veteran had no symptoms of radiculopathy. It was indicated in April 2006 that there was no point tenderness over the back. There was decreased flexion and numbness over the L4, L5 and S1 distribution, but no objective weakness or sensory loss. There was decreased right ankle reflex. At the May 2006 hearing the Veteran related that when his medication wears off, the low back pain is still present. He also testified he cannot do any prolonged walking and that he was in pain all the time. In June 2008, a private physician wrote that she had recently examined the Veteran and his lumbar spine had become more severe and limiting over several years. On VA Agent Orange examination in September 2008, examination of the Veteran's back found no spinal tenderness. VA outpatient treatment records disclose the Veteran was seen in October 2010. An examination revealed tenderness in the lumbosacral area. A neurologic examination was normal. The assessment was chronic low back pain. On November 22, 2010 VA spine examination the Veteran complained of lower back pain radiating down the lower extremities, primarily the right lower extremity. He reported flare-ups of pain. He stated that he was bedridden for one to two days a month by severe back pain. He said he used a lumbosacral corset and a cane. He asserted he had increased pain and decreased mobility with flare-ups. It was noted he could walk about 1/2 a mile before he needed to stop and rest due to pain. He related he was able to do yard work, although it took him a lot longer to complete tasks. He stated he retired in December 2006 due to chronic low back pain and pain in his knees and shoulders. Examination revealed forward flexion was to 30 degrees; extension was to 15 degrees; and lateral flexion and rotation were each to 15 degrees, bilaterally. There was marked pain and guarding during range of motion testing. No fixed deformity was identified. No sensory deficits were noted. A marked tendency for give way weakness was present. There was no clear evidence of focal motor weakness. Reflexes were 2+ and symmetric at the knees and ankles. Lasegue's sign was negative. No additional limitations were noted with three repetitions of movement that were related to pain, fatigue, incoordination, weakness or lack of endurance. The diagnosis was chronic lumbar strain, severe, with residuals. On May 2011 VA chiropractor evaluation it was reported that active range of motion was decreased throughout due to pain. Passive motions were tight and restricted, though functional. There was no spasm. Straight leg raising was negative throughout, but caused pain in the low back. The assessments were chronic non-specific lumbalgia with mechanical features in the presence of multi-level degenerative changes, suspect possible facetal involvement of the lumbar spine; degenerative changes with disability protrusion, and nerve root impingement. On June 2011 VA spine the Veteran asserted he had daily low back pain, stiffness and periodic radicular pain. He stated he had severe flare-ups every one to two months, lasting for two to three days. There was no history of urinary or fecal incontinence, no numbness or paresthesias and no leg weakness. Examination found no spasm, atrophy or weakness. There was guarding, tenderness and pain with motion. Flexion was from 0-10 degrees; extension was from 0-5 degrees; lateral flexion was from 0-15 degrees, bilaterally; and rotation was 0-15 degrees, bilaterally. There was objective evidence of pain following repetitive motion, but no additional limitations after three repetitions of range of motion. Knee jerk and ankle jerks were 2+ bilaterally. A sensory evaluation of the lower extremities was normal. The diagnoses were degenerative joint disease and degenerative disc disease of the lumbar spine. The Board will first address whether a rating in excess of 10 percent is warranted for lumbosacral strain prior to November 22, 2010. As noted above, the Veteran filed a claim for an increased rating for his service-connected low back disability in January 2002. Thus, the Board will consider the regulations in effect prior to September 26, 2003, as well as those that became effective that date, as applicable. Although the Veteran reported low back pain when seen on a few occasions by the VA in 2002, the first clinical findings were recorded in May 2004. At that time, the examiner noted that the Veteran had poor range of motion, particularly on forward flexion. However, the outpatient report does not provide any specific range of motion of the lumbar spine. He was examined the following month, and the report establishes forward flexion was to 45 degrees. These findings support a 20 percent rating effective June 14, 2004. There is no basis in the factual data on which the 20 percent evaluation may be assigned prior to this date. The private and VA treatment records between June 2004 and November 2010 do not show that a rating in excess of 20 percent was warranted from June 14, 2004. There are relatively few records reflecting treatment for low back complaints. Just one month after the June 2004 examination, it was noted the Veteran had pain radiating to the left lower extremity and hypersensitivity. However, in June 2005, he did not have any symptoms of radiculopathy. Similarly, while in April 2006 he had limitation of motion (the degree of which was not reported) of the lumbar spine, there was no objective weakness or sensory loss. The Board acknowledges that there are some clinical findings suggestive of radiculopathy. However, while the Veteran stated he had radiculopathy, the examiner commented there was no neurological deficit. Therefore, the evidence does not warrant a separate rating for neurological symptoms. The Board finds, therefore, that a 20 percent evaluation is warranted effective June 14, 2004, but there is no basis on which a rating higher than 20 percent may be assigned prior to November 22, 2010 under any of the regulations in effect during the appeal. The analysis proceeds to whether a rating in excess of 40 percent is warranted for the Veteran's low back disability from November 22, 2010. This examination demonstrated forward flexion was to 30 degrees, supporting the assignment of a 40 percent evaluation from that date. To warrant a higher rating, the record must show ankylosis of the entire thoracolumbar spine. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's [Illustrated Medical Dictionary], at 86 [(27th ed. 1988]). Coyalong v. West, 12 Vet. App. 524, 528 (1999). All evaluations in the record, including on the most recent VA examination, found the Veteran had at least some range of low back motion, and ankylosis is not shown. The Board has also considered whether a higher rating could be assigned under any of the other Diagnostic Codes in effect during the Veteran's appeal. The Board notes the record does not establish that his disc disease is pronounced. While the Veteran recently stated he was bedridden for up to two days each month, he has not provided any evidence that bedrest was prescribed by a physician. Nothing in the record suggests that occurred. Thus, there is no basis for a higher rating based on incapacitating episodes. In sum, the evidence supports that a 20 percent rating for lumbosacral strain is warranted effective June 14, 2004, and that the preponderance of the evidence is against a finding that a rating in excess of 40 percent is warranted at any time. The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the Veteran's low back disability. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); and DeLuca v. Brown, 8, Vet. App. 202 (1995). Although the June 2004 VA examination shows the Veteran had decrease in spine function on repetitive testing, he did not have tenderness, guarding or spasm. While repetitive motion testing was not reported on the October 2005 VA examination, the Board finds that any pain the Veteran experienced was contemplated by the 10 percent rating in effect prior to June 14, 2004, and the 20 percent evaluation that has been assigned from that date. The Board is aware of the holding in Johnston v. Brown, 10 Vet. App. 80 (1997) that once a particular joint is evaluated at the maximum level in terms of limitation of motion, there can be no additional disability due to pain. However, although the Veteran has been in receipt of the maximum schedular disability rating available for the low back based on limited motion since November 22, 2010, it is necessary to consider whether additional functional loss due to pain and weakness on use results in the disability being comparable to ankylosis to the degree warranting a higher evaluation. The Board concludes that it does not. The Board finds that the range of motion of the low back remaining is inconsistent with a finding of ankylosis. Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's low back disability shown are contemplated by the applicable rating criteria. Therefore, those criteria are not inadequate, and referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Service connection for a disability manifested by sore throat, to include as due to Agent Orange exposure, is denied. A 20 percent rating for lumbosacral strain is granted, effective June 14, 2004, subject to the regulations governing payment of monetary awards. Ratings for lumbosacral strain in excess of 10 percent prior to June 14, 2004; in excess of 20 percent prior to November 22, 2010; and in excess of 40 percent from that date are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs