Citation Nr: 1325113 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-16 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased disability evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine prior to May 18, 2007; in excess of 20 percent for degenerative arthritis of the lumbar spine from May 18, 2007 to July 9, 2009; and in excess of 50 percent from July 9, 2009. 2. Entitlement to an increased (compensable) disability evaluation for osteoarthritis of the bilateral feet prior to January 22, 2013. 3. Entitlement to a disability evaluation in excess of 10 percent for osteoarthritis of the bilateral feet from January 22, 2013. 4. Entitlement to a disability evaluation in excess of 10 percent for bilateral metatarsalgia from January 22, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Kelly. Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from April 1962 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio, which, in pertinent part, continued a 10 percent disability evaluation for degenerative arthritis of the lumbar spine and bilateral feet. The Veteran's claims file was subsequently transferred to the RO in Los Angeles, California, who has assumed jurisdiction of the claim. This matter was previously before in May 2012, at which time it was remanded for additional development, to include a VA examination. The Veteran was afforded the requested VA examination in January 2013 and the Appeals Management Center (AMC), acting on behalf of the RO, assigned a 20 percent evaluation for degenerative arthritis of the lumbar spine from May 18, 2007 to July 9, 2009, and a 50 percent evaluation for degenerative arthritis of the lumbar spine from July 9, 2009. The AMC also assigned a 10 percent for osteoarthritis of the bilateral feet from January 22, 2013 and a separate 10 percent evaluation for bilateral metatarsalgia from January 22, 2013. As a result of the AMC's actions, the Board has listed the issues as such on the title page of this decision. The Board finds that the AMC complied with the May 2012 Remand directives as it relates to the lumbar spine issue. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to an increased (compensable) disability evaluation for osteoarthritis of the bilateral feet prior to January 22, 2013; an evaluation in excess of 10 percent for osteoarthritis of the bilateral feet from January 22, 2013; and an evaluation in excess of 10 percent for bilateral metatarsalgia from January 22, 2013, are remanded to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required on his part. In a February 2013 memorandum from the Appeals Management Center (AMC), it was indicuated that an inferred, non-AMC issue of a total disability rating based on individual unemployability (TDIU) has been raised and the RO was requested to develop and adjudicate the issue. It was noted that 2007 evidence indicated that the Veteran was working. The claims file shows more recent evidence in April 2009 indicating that the Veteran was working. The issue of TDIU is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to April 6, 2009, lumbar disc/joint disease was productive of a kyphosis deformity; there was no demonstration of unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine. 2. Resolving reasonable doubt in favor of the Veteran, limitation of motion akin to that of unfavorable ankylosis of the entire thoracolumbar spine was demonstrated as of April 6, 2009; there has been no demonstration of unfavorable ankylosis of the entire spine at anytime. 3. There has been no showing of incapacitating episodes having a total duration of at least six weeks during the past 12 months during any period. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation, and no more, for degenerative disc/joint disease of the lumbar spine were met prior to April 6, 2009. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012). The criteria for a 50 percent evaluation, and no more, for degenerative disc/joint disease of the lumbar spine were met prior from April 6, 2009. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran's status has been substantiated. The Board observes that in an August 2005 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. An August 2009 letter provided the Veteran with notice as to the disability rating and effective date elements of the claim. Although the August 2009 notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and been given ample time to respond, the RO has also readjudicated the case by way of a supplemental statement of the case issued after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the Veteran and his representative have presented detailed argument which shows they are aware of what is needed to substantiate the claim. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder. No other relevant records have been identified. The Veteran was afforded VA examinations in November 2005 and January 2013. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination reports set forth a history, assessments of social and industrial impairment, and detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be adequate for rating purposes. The examination reports provided a history supplied by the Veteran and detailed examination results. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and by being afforded the opportunity to appear at a hearing if so desired. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Increased Evaluation Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might 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). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Diseases and injuries to the spine are to be evaluated under diagnostic codes 5235 to 5243as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine: 100 percent Unfavorable ankylosis of the entire thoracolumbar spine: 50 percent Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine: 40 percent Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine: 30 percent Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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: 20 percent Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 or more of the height: 10 percent Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, General Rating Formula for Disabilities and Diseases of the Spine (2012). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: With incapacitating episodes having a total duration of at least six weeks during the past 12 months 60 percent With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months 40 percent With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months 20 percent With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months 10 percent Note (1): For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating for Formula and Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes disabled on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is to be considered in evaluating the degree of disability, but a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (indicates that pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain may be the basis for a rating for a disability rated based on limitation of motion, regardless of whether or not the limitation of motion specified in the Diagnostic Code criteria is shown). Ankylosis" is defined as the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003); see also Augustine v. Principi, 18 Vet. App. 505, 506 (2004) (defining "ankylosis" as the "immobility and consolidation of a joint."(citing to DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 86 (28th ed. 1994)). Put differently, an "ankylosed joint" is one that is fused or obliterated. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 93. In conjunction with his request for an increased evaluation, the Veteran's wife, a registered nurse, indicated that the Veteran's arthritis in his back had been progressive. She stated that he could not walk upright with straight legs. She noted that he walked with his knees bent at a 45 degree angle. She stated that the Veteran could straighten out but could not sustain the position without pain. She indicated that he was undergoing physical therapy and exercises. She reported that he could not walk a city block without stopping to rest his back. At the time of a November 2005 VA examination, the Veteran reported having difficulty with walking. He indicated that he was unable to stand upright and that he hunched forward all the time. The Veteran stated that he was forced to walk bent over. He noted that physical therapy had been helpful but his back was getting worse overall every day. The Veteran stated that flare-ups consisted of pain but there was no weakness, fatigability, lack of endurance, or lack of coordination. The Veteran reported that he was able to walk about 10 feet before his back pain limited him. He did not use a cane or brace and had not been incapacitated. He refused to miss work as he stated he was not the kind of person that would do so. Physical examination revealed lumbar kyphosis instead of lordosis. Palpation revealed no focal tenderness. Range of motion revealed forward flexion to 90 degrees, extension to 10 degrees, side to side bending to 30 degrees and rotation to 30 degrees. Range of motion was limited because of pain but not because of weakness, fatigability, lack of endurance, or lack of coordination. Strength was reported as 5/5. Sensation in the L3 to L1 dermatomes was normal. As to reflexes, the Veteran had 2+ patellar reflexes, bilaterally, and cross patellar reflexes. There was no Achilles reflex. Lasegue sign was negative. X-rays of the back showed severe degenerative changes with loss of disc space height, flat back deformity, and flowing osteophytes from one vertebral body to the next. The examiner rendered a diagnosis of progressive lumbar kyphosis deformity secondary to degenerative spondylosis, getting worse. In a December 2005 statement in support of claim, the Veteran reported that his lower back had been a problem for years. He indicated that he had learned to live with it and had adjusted his walking, standing, and other movements to reduce the pain and still be able to function. He stated that the pain had not been a major problem as he had modified his gait to adjust to the increasing reduction in his strength. The Veteran reported that he had difficulty lifting any weight to shoulder height and could only walk about 100 feet before having to stop and rest. He indicated that he gave the appearance of being handicapped as he could not stand up straight or walk upright. Treatment records obtained in conjunction with the Veteran's claim reveal that he underwent physical therapy for his back problems from September 2005 to December 2005. The Veteran indicated that he was unable to walk more than 10 minutes without fatigue and unable to golf as he had in the past. Short term goals were that he be able to walk for approximately 10 minutes with improved upright position and a decrease his low back pain. In a December 2005 treatment record, the Veteran was noted to have range of motion of the lumbar spine within functional limits. In his November 2006 notice of disagreement, written on a VA Form 9, the Veteran indicated that he had difficulty walking and was unable to stand upright. He stated that he was hunched over at all times. He reported that his back was getting progressively worse. The Veteran indicated that he was unable to walk more than 100 feet before his back bothered him. Additional physical therapy records associated with the claims folder reveal that the Veteran reported that he was having real difficulty keeping an upright position during periods of walking later in the day in January 2007. Later in the month, the Veteran was noted to have gone golfing and found to have had more rotation in the spine. In a February 2007 treatment record, the Veteran reported having difficulty standing upright along with having fatigue. He indicated that it was very difficult for him to stand erect for 1-2 hours at work. In March 2007, the Veteran stated that he was not having pain and just having trouble standing upright. Trunk stretching was noted to be continuing to help in March and April 2007 treatment records. In an April 2007 treatment record, the Veteran was noted to be able to stand more upright. In an undated letter, received in May 2007, J. S., DPT, indicated that the Veteran had a condition that was influenced by his severe degenerative osteoarthritis not only of his lumbar spine but of his hip that had perpetuated a functional loss of both mobility with his normal activities of daily living as well as a limitation with his ability to perform recreational activities. He noted that the Veteran remained in a semi-fixed posturing trunk extension which was placing a significant strain on his iliofemoral ligaments in his hips and he demonstrated a reversal of the normal lordosis of the lumbar spine which, through radiological evidence, had confirmed lumbar spine kyphosis. He stated that the lumbar spine kyphosis was an affixed deformity which he felt would not change with continuance of physical therapy and over time would continue to perpetuate further disability. Dr. S. indicated that the Veteran wore an abdominal binder to help alleviate his lumbar spine pain that he experienced with excessive activity and that his inability to stand upright greatly impacted his stability both statically and dynamically. He stated that there had been a definite progression of arthropathy over the past few years which he felt would continue to increase due to the length of time that the Veteran had remained in the lumbar kyphotic position. In a May 2007 treatment record, the Veteran reported having low back pain without radiation into the bilateral lower extremities. Physical examination performed at that time revealed mild paraspinal tenderness to palpation. Spasm was noted in the bilateral lumbar regions. Range of motion was decreased secondary to stiffness and pain. Forward flexion was to 60 degrees while extension was to 10 degrees and lateral bending to 15 degrees on the left and right. X-rays revealed diffuse wedging of the vertebral bodies with diffuse osteophyte formation throughout the lumbar spine. The degenerative changes were noted to have increased when compared to prior films. A diagnosis of lumbar spine osteoarthritis was rendered. In a July 2009 treatment record, the Veteran was noted to be almost two months post-op following back surgery. It was also indicated that he had undergone physical therapy. At the end of the day, he was still hunched. In a September 2009 treatment record, the Veteran was noted to have started playing golf. The physical therapy had helped and he was straighter than he was often but not always. Physical examination revealed that the Veteran still walked bent forward. When he straightened, he would bend his knees. There was no pain or weakness. The Veteran was scheduled for a VA examination in August 2010 to determine the severity of his degenerative arthritis of the lumbar spine and failed to appear. In a December 2011 letter, the Veteran indicated that his back had further deteriorated and that he had had back surgery that had not been successful. As noted above, the Board remanded this matter in May 2012 to attempt to obtain any VA or private treatment records since May 2007 and to afford the Veteran a VA examination to determine the current severity of his lumbar spine disability. In June 2012, the Veteran's representative indicated that the Veteran had no further medical evidence to submit. In January 2013, the Veteran was afforded the requested VA examination. The examiner indicated that the Veteran's claims folder was available and had been reviewed. The examiner rendered a diagnosis of degenerative disc disease. The examiner indicated that the Veteran denied any chronic pain; however, he had difficulty walking due to his inability to stand upright. The Veteran stated that he had to use a cane and had to be very careful due to the position his head was in when walking fully flexed forward with a cane. The Veteran denied any trouble breathing. The Veteran stated that the chronic flexion problems began in the 1980's with weakness in his back muscles making it difficult to stand upright, progressively worsening to this permanent flexed position. The Veteran reported that it was his belief that if his muscles were not so weak he would be able to erect his spine. The Veteran stated that he was able to erect his spine more when laying down, having the support of the bed. He denied having any flare-ups. Physical examination revealed range of motion testing of flexion to 70 degrees, extension to 0 degrees, left and right lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. There was no objective evidence of additional limitation of motion upon repetitive testing. The examiner indicated that the Veteran's range of motion was limited by weakness of his erector spinae and cumulative back muscles. He was unable to get his back into an upright position and was chronically in at least a 40 degree flexion. The Veteran was unable to get his spine to 0 degrees. The examiner indicated that the Veteran's functional losses were less movement than normal; weakened movement; excess fatigability; disturbance of locomotion; and interference with sitting, standing, and/or weight bearing. The was no localized tenderness or pain to palpation. There was also no guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 4/5 with no muscle atrophy. Deep tendon reflexes were 1+ for the knee and ankle. Sensory examination was normal throughout and straight leg raising was also normal. The examiner specifically indicated that the Veteran did not have radiculopathy. There were no other neurological abnormalities. The examiner noted that while the Veteran had intervetebral disc syndrome, there had been no incapacitating episodes in the past 12 months. The Veteran used both a cane and walker as a result of his back condition. The examiner indicated that the Veteran had a palpable bony protrusion of the lumbar spine and stated that his posture and gait were abnormal due to the ankylosis and weakness of the spine, not due to muscle spasm. X-rays of the lumbar spine revealed a slightly deep greater degree of rightward curvature with the apex at L2-3. L5 appeared to be a transitional vertebra with partial fusion to the sacrum on the right. Postsurgical body height was demonstrated at multiple levels, but was essentially unchanged. There were advanced degenerative changes at the L5-S1 interspace. It was the examiner's impression that the Veteran had progressive right curvature and multilevel degenerative changes, maximum L5-S1. As to impact on the Veteran's ability to work, the examiner noted that the Veteran would be extremely limited in any type of employment due to his spine condition. He required assistance with his mobility, could not lift, and would need prolonged sitting. Subsequent to the January 2013 VA examination, additional treatment records were associated with the claims folder. A March 2009 MRI of the lumbar spine revealed degenerative disc disease at multiple levels throughout the lumbar spine from L1 to S1; mild spinal stenosis at L4-5; foraminal stenosis at multiple levels; and mild retrolisthesis at L5-S1 associated with small disc protrusion. At the time of an April 6, 2009, visit, it was noted that over the last several years, the Veteran had had progressive difficulty with ambulating in a straightforward posture. He had begun to walk progressively more bent forward at the waist, and was now only able to walk 100 feet. The Veteran noted that even walking from the golf cart to the ball now caused difficulty. His wife stated that the more he walked the more bent forward he was. He tended not to walk more than 100 feet before sitting down. As soon as the Veteran sat or laid down the pressure would go away. There was no numbness or tingling and the Veteran was not aware of any weakness. Physical examination performed at that time revealed that the Veteran walked in a significantly bent forward posture and was unable to stand upright without bending his knees. Lumbar extension was essentially nil and the Veteran could bend forward and bring his fingertips to one foot of the floor. In a May 2009 treatment record, it was indicated that the Veteran still worked as a financial adviser. This position was predominantly desk or sedentary type. The Veteran was noted to walk with a significantly bent forward posture and was unable to stand upright without bending his knees. Lumbar extension was essentially nil. He could forward flex and bring his fingertip to 1 foot from the floor. In the supine position, he could straight leg raise to 60 degrees. Lasegue sign was negative and motor strength was intact. Sensation was diminished in a nondermatomal distribution throughout the lower extremities and deep tendon reflexes were absent. Later that month, the Veteran underwent a laminectomy and foraminotomy. Physical therapy records covering the time period from June 2009 to September 2009 reveal the Veteran to be able to stand more upright, with a notation that the Veteran could start golfing again in August 2009 on a limited basis. In September 2009, the Veteran was noted to walk 25-300 feet without posterior trunk lean. Rating prior to April 6, 2009 As it relates to the Veteran's degenerative disc/joint disease, the Board notes that as early as the Veteran's initial November 2005 VA examination, he was found to have a kyphosis deformity. At the time of the November 2005 VA examination, the examiner rendered a diagnosis of progressive lumbar kyphosis deformity secondary to degenerative spondylosis, getting worse. As demonstrated above, one of the listed criteria for a 20 percent disability evaluation is abnormal kyphosis. As such, the Veteran has met the criteria for a 20 percent disability evaluation throughout this time period. A 40 percent evaluation, the next higher evaluation, is not warranted as the Veteran was not shown to have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine during this time period. At the time of the Veteran's November 2005 VA examination, he was noted to have flexion to 90 degrees. Physical therapy records associated with the claims folder reveal that the Veteran had range of motion of the lumbar spine within functional limits at the time of a December 2005 physical therapy session. Although the Veteran was noted to have difficulty keeping an upright position in January 2007, it was noted only towards the latter part of the day, with a notation in the treatment records that the Veteran had been able to go golfing in the latter part of that month. Although difficulty remaining erect was noted throughout the next several months, the Veteran was still able to stand erect for certain periods of time, which coincided with physical therapy treatments. Moreover, at a May 2007 visit, the Veteran was found to have forward flexion to 60 degrees, with extension to 10 degrees and lateral bending to 15 degrees on the left and right. Range of motion akin to that of unfavorable ankylosis was not demonstrated until April 6, 2009, when the Veteran was noted to walk in a significantly bent forward posture and was unable to stand upright without bending his knees, with lumbar extension being reported as essentially nil at that time. The competent evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Even when considering the additional limitation of motion caused by fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 20 percent for limitation of motion based upon the appropriate codes governing limitation of motion for the time period prior to April 6, 2009. Rating Subsequent to April 6, 2009 The Veteran has not been shown to have unfavorable ankylosis of the entire spine at any time, including the most recent VA examination performed in January 2013, as is required for the next higher evaluation of 100 percent. The Veteran has not been shown nor has he claimed to have ankylosis of the entire spine. The competent evidence reflects consideration of the Veteran's complaints of pain, weakness, and fatigability by medical professionals. Even when considering the additional limitation of motion caused by fatigue, weakness and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 50 percent for limitation of motion based upon the appropriate codes governing limitation of motion for this time period subsequent to April 6, 2009. As to incapacitating episodes, the Veteran has not been shown to have nor has he reported any incapacitating episodes during the appeal period. As such, an evaluation in excess of 20 percent prior to April 6, 2009, or in excess of 50 percent from April 6, 2009, onward, is not warranted under the criteria for intervertebral disc syndrome. The normal neurologic findings at the time of the VA examinations and in numerous private treatment records support a finding that no additional rating can be awarded on the basis of neurologic impairment. Accordingly, the Board finds that the criteria for entitlement to ratings greater than those currently assigned are not met. The preponderance of the evidence is against the Veteran's claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds that the schedular rating criteria contemplate the Veteran's back disability and the symptoms associated with the disability including limitation of motion, difficulty standing upright and some complaints of pain. The schedular rating criteria pertaining to the Veteran's back disability provide for ratings based on limitation of motion of the back, including due to pain and other orthopedic factors such as weakness, incoordination, and fatigability, including unfavorable ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. The schedular rating criteria pertaining to the Veteran's back disability also provide for separate ratings for neurological impairment that is shown to be related to the back disability. The schedular rating criteria also provide for an alternative rating based on incapacitating episodes due to intervertebral disc syndrome. Because the schedular rating criteria are adequate to rate the Veteran's low back disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). There has also been no demonstration that the Veteran is not currently employed. ORDER A 20 percent evaluation, and no more, for degenerative disc/joint disease of the lumbar spine prior to April 6, 2009, is granted. A 50 percent evaluation, and no more, for degenerative disc/joint disease of the lumbar spine from April 6, 2009, is granted. REMAND As it relates to the claims for an increased (compensable) disability evaluation for osteoarthritis of the bilateral feet prior to January 22, 2013; an evaluation in excess of 10 percent for osteoarthritis of the bilateral feet from January 22, 2013; and an evaluation in excess of 10 percent for bilateral metatarsalgia from January 22, 2013, the Board notes that in accordance with the May 2012 Board remand, the Veteran was afforded a VA examination in January 2013, which resulted in the assignment of a 10 percent evaluation for osteoarthritis of the bilateral feet from January 22, 2013, and a 10 percent for bilateral metatarsalgia from January 22, 2013. While the Board notes that this was a partial grant of the benefits sought on appeal, it is not a full grant, as higher disability evaluations may be assigned not only for the period from January 22, 2013, but also prior to that time. Per the May 2012 remand, if the benefit sought on appeal was not granted, the RO/AMC was to furnish the Veteran a supplemental statement of the case. To date, the AMC has not provided the Veteran with an SSOC on the bilateral foot issues. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders and VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also 38 C.F.R. § 19.31 (2012) Consequently, the issues of entitlement to an increased (compensable) disability evaluation for osteoarthritis of the bilateral feet prior to January 22, 2013; an evaluation in excess of 10 percent for osteoarthritis of the bilateral feet from January 22, 2013; and an evaluation in excess of 10 percent for bilateral metatarsalgia from January 22, 2013, must be remanded. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The RO/AMC should readjudicate the issues of entitlement to an increased (compensable) disability evaluation for osteoarthritis of the bilateral feet prior to January 22, 2013; an evaluation in excess of 10 percent for osteoarthritis of the bilateral feet from January 22, 2013; and an evaluation in excess of 10 percent for bilateral metatarsalgia from January 22, 2013. If the highest rating available is not assigned, the Veteran and his representative should be provided a SSOC and given a reasonable period in which to respond, before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs