Citation Nr: 1325125 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 10-17 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for a low back disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had service from October 1948 to July 1969 and from June 1971 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In February 2013, the Board remanded the Veteran's increased rating claim. The VA Appeals Management Center (AMC) continued the previous denial of the claim in a May 2013 supplemental statement of the case (SSOC). The Veteran's VA claims folder has been returned to the Board for further appellate proceedings. Additionally, evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. In the September 2009 rating decision, the RO granted service connection for cervical spine and lumbar spine disabilities. The Veteran disagreed with the assigned ratings, placing both issues in appeal status. However, in his March 2011 substantive appeal, he specified that he sought to appeal only the evaluation of his low back disability. The Board also observes that in June 2012 the Veteran submitted a statement requesting an increase in the evaluation of his cervical spine disability. As this new claim has not been adjudicated by the agency of original jurisdiction (AOJ), it is referred for appropriate action. The Board also notes that the AOJ construed a December 2009 statement by the Veteran as including a claim of entitlement to compensation for radiculopathy of the bilateral upper extremities. A duty to assist letter was sent in February 2010, but this claim does not appear to have been adjudicated. The most recent rating decision in the file includes a code sheet that does not include any reference to these claimed disabilities. Accordingly, this issue is also referred to the AOJ for appropriate action. 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). FINDINGS OF FACT 1. The evidence shows that the Veteran's service-connected low back disability is manifested by pain, flare-ups, limitation of motion, subjective complaints of pain and numbness in the lower extremities, and forward flexion of the thoracolumbar spine greater than 30 degrees; neither favorable nor unfavorable ankylosis of the thoracolumbar spine has been shown. 2. The evidence does not show that the Veteran experiences incapacitating episodes requiring bed rest prescribed by a physician and treated by a physician due to his low back disability. 3. The evidence does not show that the Veteran's service-connected low back disability is so exceptional or unusual that referral for extraschedular consideration by designated authority is required. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for the Veteran's service-connected low back disability are not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 2. Application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating for his service-connected low back disability. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall consideration As was alluded to in the Introduction, the Board remanded the Veteran's claim in February 2013. In essence, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the severity of his low back disability and associate a report of the examination with his claims folder. A review of the claims folder shows that the Veteran was subsequently afforded a VA examination for his low back disability in April 2013 and a report of the examination was associated with his claims folder. Thereafter, the matter was readjudicated via the May 2013 SSOC. Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his 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 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that he/she is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). Further, the United States Court of Appeals for Veterans Claims (Court) has held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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 (2006). The Court also explained that proper notification must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Court has also held, however, that VCAA notice is not required under circumstances where a claim for service connection is granted, a rating and an effective date are assigned, and the claimant files an appeal as to the evaluation assigned to that grant. See Dingess v. Nicholson, 19 Vet. App. at 491 (in which the Court held that, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled"). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103 are for application. Id. Here, the Veteran's claim for an increased rating for his service-connected low back disability essentially fall within this fact pattern. Prior to the RO's September 2009 grant of service connection for a low back disability, the Veteran was notified (by a May 2009 letter) of the evidence needed to establish that underlying issue. After receiving notice of the award of service connection for this disability here at issue, the Veteran perfected a timely appeal with respect to the rating initially assigned to the grant. Clearly, no further section 5103(a) notice is required for this increased rating claim. As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103, the record shows that the Veteran has been provided with various communications [including the notice of the September 2009 rating decision, the March 2010 statement of the case (SOC), and the February 2011, May 2011, and May 2013 SSOCs] that contain notice of VA's rating criteria, his appellate rights, a summary of relevant evidence, citations to applicable law, and a discussion of the reasons for the decision made by the agency of original jurisdiction. In short, the procedural requirements of the law have been satisfied. No further due process development of notification of this increased rating claim is required. In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating this claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. Also, the Veteran was afforded VA examinations in September 2009, June 2010, and April 2013. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. The Board therefore concludes that these VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Under these circumstances, the Board finds that VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. Additionally, the Board observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative, who has received all appropriate notifications. Accordingly, the Board will proceed to a decision. Higher evaluation for low back disability Pertinent legal criteria Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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. See 38 C.F.R. § 4.7 (2012). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007) [holding, "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"]. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40 (2012). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2012). The Veteran's service-connected lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 [lumbosacral strain], pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The evidence of record indicates that the Veteran has been diagnosed with degenerative joint disease of the lumbar spine. Based on reported symptomatology, and consistent with Diagnostic Code 5243, the Board will rate the Veteran under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome. See 38 C.F.R. § 4.71a (2012). The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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 or more of the height. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician. Schedular rating The Veteran's low back disability is currently evaluated 20 percent disabling. To warrant a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). The Veteran was afforded a VA examination in September 2009. He complained of pain in his low back which radiated to his left leg. He did not use any assistive devices at the time, but he complained of limitations on walking, kneeling, squatting, stooping, bending, and walking up stairs. He also reported that sitting and traveling in a car causes low back pain and that sleep is occasionally disrupted. He reported daily flare-ups. He did not experience any back pain from coughing or sneezing. Upon examination, the VA examiner reported that the Veteran was able to ambulate without evidence of a limp. He was able to get on and off the examining table and turn side to side with ease. The examiner did not report any gross deformity of the lumbar spine. There was flattening lordosis as well as tenderness on palpation of both the sacroiliac joints and the lower lumbar paravertebral musculature. Range of motion testing revealed forward flexion to 40 degrees, extension to zero degrees, side-bending to 20 degrees on each side, and rotation to 30 degrees on each side. After repetitive flexion and extension activity of the lumbar spine, testing for pain weakness, and fatigability showed no change in range of motion or pain pattern that had been described prior to activity. The Board notes that an MRI of the Veteran's lumbar spine dated April 2009 revealed an impression of degenerative disc disease at multiple levels, scoliosis, moderate canal stenosis at L1-L2 and L2-L3, and small disc protrusion at L5-S1. A VA neurosurgery record dated June 2009 documented the Veteran's complaints of chronic back pain and slightly wide-based gait. Additionally, a private treatment record from H.S., D.O., dated June 2009 noted development of spondylosis in the Veteran's lumbar spine. An X-ray dated January 2010 revealed an impression of levoscoliosis, limited flexion and extension, advanced discogenic disease at multiple levels, and advanced facet joint degenerative change in the mid and lower spine. An MRI report dated March 2010 revealed impressions of spondylosis, multilevel degenerative disc disease including moderate to severe disc space narrowing, and disc bulging and facet arthropathy which was present at multiple levels. VA neurosurgery records dated March and May 2010 indicate that the Veteran's lumbar spine symptoms are consistent with spinal nerve root impingement and degenerative arthritis. The Veteran was able to ambulate without assistive devices at that time. The Veteran was afforded a subsequent VA examination in June 2010. He continued his complaints of low back pain which was moderate and constant and occurred daily. He also reported severe, weekly flare-ups of his low back which occurred weekly and were precipitated by walking or standing for long periods of time and were alleviated by resting and sitting. The Veteran reported that the low back disability has mild effect on putting on clothes, moderate effect on chores, severe effect on driving, and prevents sports/recreational activity. He further reported that he has to take frequent breaks with any activity. Upon physical examination, the VA examiner reported antalgic gait and lumbar flattening. There was no evidence of ankylosis. Pain with motion and tenderness were noted, although spasm, atrophy, guarding, and weakness were absent. Range of motion testing revealed forward flexion to 35 degrees, extension to zero degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to zero degrees. The examiner noted objective evidence of pain on active range of motion and following repetitive motion. There were no additional limitations after three repetitions of range of motion. Magnetic resonance of the Veteran's lumbar spine revealed spondylosis at multiple levels in the lumbar spine, multilevel degenerative disc disease, multilevel thecal sac impingement, multilevel spinal stenosis, and multilevel neural foraminal stenosis. The examiner diagnosed the Veteran with lumbar intervertebral disc disease with moderate canal stenosis and multiple level lumbar degenerative disc disease and endplate changes. The Veteran was provided an additional VA examination in April 2013. He continued his report of flare-ups which took him longer to complete activities of daily living and walk. He did not use any assistive devices for ambulation. Upon examination, range of motion testing revealed forward flexion to 70 degrees with pain at 70 degrees, extension to 20 degrees with pain at 20 degrees, right and left lateral flexion to 25 degrees with pain at 25 degrees, and right and left lateral rotation to 20 degrees with pain at 20 degrees. The examiner noted that the Veteran was able to perform repetitive-use testing with three repetitions. The examiner also reported that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine, specifically noting less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. Furthermore, the Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine as well as guarding or muscle spasm of the thoracolumbar spine. An X-ray report of the Veteran's lumbar spine revealed an impression of multilevel degenerative disease and facet arthrosis. The Board observes that the record reflects that the Veteran has complained of low back pain throughout the course of this appeal. However, as discussed above, to warrant a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence must show that the Veteran's back disability results in forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Review of the evidence of record reveals that the Veteran's low back symptomatology does not approach a 40 percent disability rating. With respect to favorable ankylosis of the entire thoracolumbar spine, the objective medical evidence of record is pertinently absent any indication that ankylosis exists. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Medicine at 68 (4th Ed. 1987)]. Neither the medical or lay evidence of record suggests that the Veteran's lumbar spine is immobile. On the contrary, the record shows that the Veteran has maintained motion, albeit limited motion, throughout the course of the appeal. Moreover, the competent and probative evidence does not demonstrate that the Veteran has maintained forward flexion 30 degrees or below including consideration of pain. Specifically, the September 2009, June 2010, and April 2013 VA examinations noted forward flexion of 40 degrees, 35 degrees, and 70 degrees, respectively. There is no competent and probative evidence of record which documents any other forward flexion testing. Accordingly, a 40 percent disability rating of the Veteran's lumbar spine is not warranted. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. § 4.40 and 4.45 (2012). See DeLuca, supra. The Board recognizes the Veteran's complaints of pain and functional loss as a result of his low back disability, notably his difficulty walking and standing. Further, he reported that he experiences pain and reports flare-ups as a result of his low back disability. However, the Board places greater probative value on the objective clinical findings which do not support an increased disability rating. In this regard, the competent and probative evidence of record does not indicate significant functional loss attributed to the Veteran's low back complaints which warrant an increased disability rating. In particular, as indicated above, the September 2009 VA examiner noted that the Veteran was able to ambulate without evidence of a limp and was able to get on and off the examining table and turn side to side with ease. Further, the Veteran was able to maintain forward flexion to 40 degrees. Similarly, the June 2010 VA examiner noted absence of spasm, atrophy, guarding, and weakness on movement, and the Veteran maintained forward flexion to 35 degrees. Both examiners indicated no additional loss of range of motion on repetition. The Board acknowledges that the April 2013 VA examiner noted less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing. Pertinently, however, the Veteran maintained forward flexion to 70 degrees even with consideration of pain. Moreover, the VA examiner documented no additional loss of range of motion on repetition. The examiner also noted the absence of weakened movement, excess fatigability, incoordination, swelling, deformity, atrophy of disuse, instability, and disturbance of locomotion. The Board is therefore unable to identify any clinical findings that would warrant an increased evaluation under 38 C.F.R. § 4.40 and 4.45. The Board further finds that the current 20 percent rating adequately compensates the Veteran for any functional impairment attributable to his low back disability. See 38 C.F.R. §§ 4.41, 4.10 (2012). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2012); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See also Bierman v. Brown, 6 Vet. App. 125 (1994) [holding that under former Diagnostic Code 5293 a separate rating for neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder]. The Board notes that the Veteran has complained of pain radiating to his lower extremities. The Board further notes that the September 2009 VA examiner reported that the Veteran had hypoesthesia of the lateral aspect of the left leg and foot, patellar reflexes were absent bilaterally, and tandem, toe, and heel walks were with difficulty. Additionally, the June 2010 VA examiner reported that knee and ankle jerks were absent bilaterally and that the Veteran had decreased sensation to pinprick and hypoesthesia at the calf. Criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520, outline the degrees of disability compensation available for impairment of the sciatic nerve. A maximum schedular rating of 80 percent is awarded for complete paralysis of the foot. A 60 percent rating is awarded for severe incomplete paralysis with marked muscular atrophy; a 40 percent rating is awarded for moderately severe incomplete paralysis; a 20 percent rating is awarded for moderate incomplete paralysis; and a 10 percent rating is awarded for mild incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). The term "incomplete paralysis" with peripheral nerve injuries such as this indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). The Board finds that the competent and probative evidence of record does not indicate neurological impairment sufficient to warrant a separate disability rating manifested by mild incomplete paralysis of the sciatic nerve. Notably, the September 2009 VA examiner indicated that motor strength of the left leg was normal. Moreover, although a June 2009 VA neurosurgery record documented some patchy numbness in the left calf, the record also notes strong power and normal reflexes in the lower extremity. A March 2010 VA neurosurgery record similarly indicated that although the Veteran had some numbness of the anterior left shin, he did not have signs and symptoms of neurogenic claudication. Finally, the April 2013 VA examination indicated essentially normal muscle strength, reflex, sensory, and straight leg raising. Pertinently, the examiner reported that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Based on this record, and although not necessarily disputing that certain subjective neurological symptoms such as pain and numbness may be present, the Board concludes that a separate rating for neurological impairment of the right or left extremity is not warranted. The Board additionally notes that although the Veteran has been diagnosed with degenerative arthritis of the lumbar spine, this disease manifests in back pain based on identified symptomatology. Accordingly, separately rating the diagnosis would amount to prohibited pyramiding. See 38 C.F.R. § 4.14 (2012) [the evaluation of the same disability under various diagnoses is to be avoided]. Finally, the Veteran has not identified any bladder or bowel dysfunction associated with his low back disability, and none has been diagnosed. Intervertebral Disc Syndrome Based on Incapacitating Episodes Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months and a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Further, as noted in the schedular criteria, 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. The Veteran has contended that his low back disability causes flare-ups, pain, and interference in daily activities. However, the medical evidence does not indicate that he has been prescribed bed rest by a physician based on incapacitating episodes totally at least 4 weeks but less than 6 weeks during any 12 month period. Therefore, the Veteran's service-connected low back disability does not warrant an increased disability rating alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Extraschedular consideration In evaluating the severity of his service-connected disability, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disability at issue on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability, with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof. The criteria specifically provide for evaluation of the disability based upon impairment of the low back and associated symptomatology, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability. See 38 C.F.R. § 4.1. Rice consideration Finally, the Board has considered whether a remand for consideration of total disability benefits based on individual unemployability (TDIU) is warranted. The Court has held that TDIU is an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board observes that the Veteran was awarded TDIU in a December 2010 rating decision with an effective date of April 20, 2010 assigned. The Veteran has not appealed the assigned effective date. Therefore, further consideration of this matter is not necessary. ORDER Entitlement to an initial disability evaluation in excess of 20 percent for service-connected low back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs