Citation Nr: 1325997 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-26 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. For the period prior to November 18, 2008, entitlement to a compensable evaluation for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine. 2. For the period from November 18, 2008 to March 25, 2010, entitlement to an evaluation in excess of 10 percent disabling for DDD and DJD of the lumbar spine. 3. For the period from March 25, 2010 to January 3, 2013, entitlement to an evaluation in excess of 20 percent disabling for DDD and DJD of the lumbar spine. 4. For the period from January 3, 2013, entitlement to an evaluation in excess of 40 percent disabling for DDD and DJD of the lumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to August 1981, and from December 1986 to October 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Phoenix, Arizona that granted service connection for DDD and DJD of the lumbar spine and assigned a noncompensable evaluation, effective December 13, 2005. Subsequently, a May 2012 rating decision granted a higher, 10 percent evaluation for the Veteran's DDD and DJD of the lumbar spine, effective November 18, 2008. In a March 2013 decision, the RO granted a 20 percent disability rating from March 25, 2010 to January 3, 2013, and a 40 percent disability rating from January 3, 2013. As this did not constitute a full grant of the benefit sought on appeal, these matters remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In August 2012, a videoconference Board hearing was held before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). The issues were remanded by the Board in October 2012 for additional development. FINDINGS OF FACT 1. Prior to March 25, 2010, DDD and DJD were manifested by forward flexion limited to 90 degrees with X-ray evidence of DDD. The Veteran did not have the functional equivalent of forward flexion to 30 degrees but not greater than 60 degrees, favorable or unfavorable ankylosis, or incapacitating episodes. 2. From March 25, 2010 to January 3, 2013, DDD and DJD were manifested by forward flexion limited to 50 degrees. The Veteran did not have the functional equivalent of forward flexion limited to 30 degrees or less, favorable or unfavorable ankylosis, or incapacitating episodes. 3. Since January 3, 2013, DDD and DJD are manifested by forward flexion limited to 30 degrees; the Veteran does not have favorable or unfavorable ankylosis, or incapacitating episodes. CONCLUSIONS OF LAW 1. Prior to November 18, 2008, the criteria for a disability rating of 10 percent, but no more, for DDD and DJD are met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5242 (2012). 2. From November 18, 2008 to March 25, 2010, the criteria for a disability rating in excess of 10 percent for DDD and DJD are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5238 (2012). 3. From March 25, 2010 to January 3, 2013, the criteria for a disability rating in excess of 20 percent for DDD and DJD are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5238 (2012). 4. From January 3, 2013, the criteria for a disability rating in excess of 40 percent for DDD and DJD are not met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5238 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in February 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. A March 2006 letter explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and post-service VA and private treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Veteran was provided VA examinations in February 2006, February 2012, and January 2013 to determine the nature and severity of the Veteran's service-connected disability. 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. Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports 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]. Given the January 2013 VA examination, the receipt of outstanding private treatment records, and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its October 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating Claims Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that 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, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. A. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In a September 2003 pre-discharge examination, the examiner noted the Veteran originally injured his back while running when he twisted his back and had immediate severe pain. An MRI at that time showed a herniated disc at L4-5 and L5-S1. He was treated conservatively at that time and gradually improved. The Veteran complained of back pain upon awakening with stiffness which is alleviated with stretching. He reported back pain with any strenuous labor or yard work where repetitive bending or lifting is involved. He denied any radiation of pain into his lower extremities as well as numbness or tingling. Upon physical examination, flexion was to 90 degrees and extension was to 30 degrees with stiffness in the lumbar spine. Right side bending as to 35 degrees and left side bending was to 35 degrees, both reported with stiffness. Lumbar spine findings showed advanced DDD and associated degenerative facet arthropathy. During a February 2006 VA examination, the Veteran reported a history of low back pain which developed in 1992 following a training run. Since then, he has had intermittent low back pain. The Veteran denied radiation, flare-ups, or effects on occupation. On physical examination, range of motion of the lumbar spine was noted as normal. Flexion was zero to 90 degrees. Extension was zero to 30 degrees. Lateral flexion was zero to 30 degrees to the right and the left. Lateral rotation was zero to 45 degrees to the right and the left. There was no pain on range of motion or loss of range of motion with repetition. There was no paraspinal tenderness to tension. The Veteran's gait was normal and he was able to stand on toes and heels. X-ray testing revealed severe disk space narrowing at L5-6, and mild to moderate narrowing throughout the remainder of the lumbar spine. The examiner diagnosed moderate to severe DJDJ and DDD of the lumbar spine. In a September 2008 statement, the Veteran reported daily levels of pain in his lower back. He cannot sit or drive for extended periods of time and repetitive bending or lifting aggravates the injury significantly. He also reported his left leg still has bouts of numbness. Private treatment records from the Veteran's private chiropractor include a medical record dated in March 2010 which found objective range of motion testing of forward flexion to 50 degrees. In a March 2010 VA progress note, the Veteran reported low back pain for years, sometimes radiating to buttock, but not in the sciatic distribution. He reported he has not had weakness in the leg but has had numbness and tingling in the left posterior thigh just above the knee, not distally. The assessment was chronic low back pain. During a February 2012 VA examination, the Veteran denied flare-ups which impact the function of the thoracolumbar spine. Forward flexion was noted to 80 degrees with pain at endpoint. Extension was noted to 20 degrees, with pain at endpoint. Right and left lateral flexions were to 25 degrees with pain at endpoint. Right and left lateral rotations were to 15 degrees with pain at endpoint. The Veteran was able to perform repetitive-use testing with no change in range of motion. The examiner noted pain on movement and guarding and/or muscle spasm that does not result in abnormal gait or spinal contour. Sensory examination was normal. Straight leg raising was positive on the right and negative on the left. The examiner found no radicular pain or any other signs or symptoms due to radiculopathy. The Veteran has not had any incapacitating episodes over the past 12 months, and does not use any assistive devices. The examiner noted that the Veteran's back disorder impacts his ability to work as he is unable to stand longer than 30 minutes and cannot lift over 30 pounds without back pain. The examiner further noted that since the last compensation and pension examination, the Veteran has decreased range of motion, increased back pain, and can no longer stand or walk extended periods. During the August 2012 hearing, the Veteran testified that he works as a Customs Officer, but that his back does not interfere with his employment. He has used sick days because of his back, about seven days in the year, but he will just stay home and rest. In a January 2013 VA medical examination the examiner noted the VA claims file was reviewed. The examiner provided a diagnosis of spinal stenosis, which is a progression of degenerative joint disease. Objective range of motion testing was completed at this time. Forward flexion was 30 degrees with pain at 25 degrees. Extension was 5 degrees with pain at 5 degrees. Right and left lateral flexion was to 15 degrees with pain at 10 degrees. Right and left lateral rotation was to 10 degrees with no pain. Repeated range of motion testing was done with no additional limitation noted. It was noted the Veteran had guarding and muscle spasm but it does not result in an abnormal gait. The examiner further reported that though the Veteran had reported complained of occasional numbness at the posterior left thigh, there was no clinical evidence of radiculopathy. Pain significantly limits functional ability during flare-ups or with attempts at repetitive use, though the degree cannot be stated. There was no ankylosis. The Veteran reported he takes some time off of work occasionally but not at physician's direction for bed rest. He can perform activities of daily living. With respect to occupational functioning, he is limited to desk work as he has a limited ability to stand for long periods of time. B. Rating Criteria and Regulations Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). Under the current rating criteria, degenerative arthritis of the spine (designated at Diagnostic Code 5242) is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Intervertebral disc syndrome (designated at Diagnostic Code 5243) is rated either pursuant to the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The diagnostic code criteria pertinent to rating spinal disabilities in general were revised effective September 26, 2003 (as codified in relevant part at 38 C.F.R. § 4.71, Diagnostic Codes 5237 through 5243). A 10 percent disability 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. A 20 percent disability 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 not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain, Diagnostic Code 5242 for degenerative arthritis of the spine, and Diagnostic Code 5243 for intervertebral disc syndrome. Alternatively, under Diagnostic Code 5242, degenerative arthritis of the spine can rated under the same criteria as Diagnostic Code 5003, which addresses degenerative arthritis. Under Diagnostic Code 5003, arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When there is some limitation of motion, but which is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242. In addition to evaluating intervertebral disc syndrome (IVDS) under the general rating formula for diseases and injuries of the spine outlined above, it may also be rated based on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. Note (1) defines an 'incapacitating episode' as 'a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.' 'Chronic orthopedic and neurologic manifestations' were defined as 'orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.' Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. C. Analysis The Board notes that under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, is not applicable as the Veteran has not asserted he has had physician prescribed bed rest and the February 2012 and January 2013 VA examination reports noted that the Veteran does not have IVDS. Therefore, a higher rating based on incapacitating episodes is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to higher ratings based on his orthopedic and neurological manifestations. For the period prior to November 18, 2008, the Veteran's lumbar spine disorder was manifested by limited range of motion as shown by the Veteran at his February 2006 VA examination and X-ray evidence of DDD and DJD. The Board finds that the Veteran's low back disorder, during this period, warrants a 10 percent disability rating. Under Diagnostic Code 5003, X-ray evidence of arthritis with limitation of motion that is rated noncompensable under the appropriate diagnostic codes, warrants a 10 percent disability rating for each major joint affective by limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). The Board finds a disability rating higher than 10 percent is not warranted for the period prior to November 18, 2008, or from November 18, 2008 to March 25, 2010. At no point during this time period has the Veteran's spine showed 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, warranting a 20 percent disability rating. In fact, during the February 2006 VA examination, the examiner specifically noted forward flexion to 90 degrees with normal gait. For the period from March 25, 2010 to January 3, 2013, the Board finds a disability rating higher than 20 percent is not warranted. At no point during this time period has the Veteran's spine showed limited forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. During this time period, the worst range of motion finding was noted during a March 2010 private chiropractor note which found objective range of motion testing of forward flexion was 50 degrees. For the period from January 3, 2013, , the Board finds a disability rating higher than 40 percent is not warranted. The Board notes that in order for the Veteran to be awarded a disability rating higher than 40 percent under the general spine formula, the evidence must show the presence of spinal ankylosis. In fact, the aforementioned ranges of motion findings do not demonstrate that the joint was immobile or fixed in place. During a January 2013 VA examination, objective range of motion testing showed forward flexion was 30 degrees, and the Veteran has not asserted worsening or immovability of his spine. As there is no objective evidence of ankylosis of the spine, the Board finds that a disability rating in excess of 40 percent is not warranted for his orthopedic findings. As discussed in detail above, the evidence fails to demonstrate unfavorable ankylosis of the entire thoracolumbar spine to obtain a higher evaluation. See supra 38 C.F.R. § 4.71a, Diagnostic Code 5238 (2012). D. Other Considerations Regarding his neurological symptoms, as noted above, the Board has considered whether the Veteran's neurological complaints warrant a separate disability rating. During VA examinations, the Veteran has asserted he has occasional numbness in his lower extremities. However, the February 2012 and January 2013 VA examiner found no objective evidence of neurological abnormalities. There was no sensory loss in any dermatome, no atrophy of the thigh or calf muscle, and motor strength was normal. As a result, the Board finds the Veteran is not entitled to a separate compensable rating for his neurological symptoms. The Board has also considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected back disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating 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 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 period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2012). 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 first 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 level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant'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. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. The Veteran's orthopedic and neurological complaints to include limited range of motion are specifically provided for in the current rating criteria. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of his back disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. In denying the Veteran's claim for increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In the instant case; however, there is no evidence this disability alone renders him unable to work, nor does it appear that the Veteran has made any such claim. Therefore, the Board does not find consideration of a TDIU rating to be necessary. ORDER For the period prior to November 18, 2008, entitlement to a 10 percent disability rating for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine, is granted. For the period from November 18, 2008 to March 25, 2010, entitlement to an evaluation in excess of 10 percent disabling for DDD and DJD of the lumbar spine is denied. For the period from March 25, 2010 to January 3, 2013, entitlement to an evaluation in excess of 20 percent disabling for DDD and DJD of the lumbar spine is denied. For the period from January 3, 2013, entitlement to an evaluation in excess of 40 percent disabling for DDD and DJD of the lumbar spine is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs