Citation Nr: 1326072 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-03 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial compensable rating for degenerative joint disease of the thoracolumbar spine, prior to February 9, 2009. 2. Entitlement to a initial rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine from February 9, 2009, through February 2, 2011, and from June 1, 2011, through July 18, 2011. 3. Entitlement to a initial rating in excess of 40 percent for degenerative joint disease of the thoracolumbar spine from July 19, 2011. 4. Entitlement to separate disability rating for erectile dysfunction as a neurologic abnormality associated with the service-connected degenerative joint disease of the thoracolumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The Veteran had active service from July 1980 to July 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for thoracic spine degenerative joint disease, with a noncompensable evaluation effective August 1, 2008. In a December 2010 rating decision, the RO granted an increased rating of 10 percent for thoracic spine degenerative joint disease, effective February 9, 2009. In a December 2012 rating decision, the RO granted an increased rating of 40 percent for degenerative joint disease of the thoracolumbar spine, effective July 19, 2011. The appellant has also been granted a temporary total rating for the thoracolumbar spine disability from February 3, 2011, through May 31, 2011. A "decision awarding a higher rating, but less than the maximum available benefit . . . does not . . . abrogate the pending appeal . . . ." AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the appeal for a higher initial rating remains before the Board. The appellant asserts that his erectile dysfunction is related to his service-connected thoracolumbar spine disability. As discussed below, the July 2011 VA examination report did not provide an adequate opinion as to that issue. VA regulations provide for the separate evaluation of compensable objective neurologic abnormalities associated with a spinal disability. See 38 C.F.R. § 4.71a, Note (1) (2012). Thus, the issue of a separate disability rating for erectile dysfunction, as a neurologic abnormality associated with the low back disability has been included as an issue on appeal. The issue of separate disability rating for erectile dysfunction as a neurologic abnormality associated with the service-connected degenerative joint disease of the thoracolumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to February 9, 2009, the appellant had pain on motion of the low back and localized tenderness, he did not have forward flexion of the thoracolumbar spine limited to 60 degrees or less, the combined range of motion of the thoracolumbar spine of 120 degrees or less or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. From February 9, 2009, through February 2, 2011, and from June 1, 2011, through July 18, 2011, the appellant did not have not forward flexion of the thoracolumbar spine limited to 60 degrees or less, the combined range of motion of the thoracolumbar spine of 120 degrees or less or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 3. From July 19, 2011, the appellant had forward flexion of the thoracolumbar spine of 30 degrees or less, but not unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to February 9, 2009, the criteria for an evaluation of 10 percent, but no higher, for degenerative joint disease of the thoracolumbar spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2012). 2. From February 9, 2009, through February 2, 2011, and from June 1, 2011, through July 18, 2011, the criteria for an evaluation in excess of 10 percent for degenerative joint disease of the thoracolumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2012). 3. From July 19, 2011, the criteria for an evaluation in excess of 40 percent for degenerative joint disease of the thoracolumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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 claim. The appellant 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 appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Veteran was provided appropriate VA examinations in April 2009, May 2010, and July 2011. The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As discussed below, the July 2011 VA examination did not adequately address whether the appellant has erectile dysfunction that is related to his service-connected thoracolumbar spine disability. However, the VA examination adequately addressed the appellant's other thoracolumbar spine symptoms. The appellant has not reported receiving any recent treatment specifically for this condition, and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. Id. § 4.3. An appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. In the May 2009 rating decision, the RO granted service connection for thoracic spine degenerative joint disease effective August 1, 2008. Thus, the period on appeal is from August 1, 2008. The degenerative joint disease of the thoracolumbar spine is evaluated under Diagnostic Code 5237 for lumbosacral strain. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 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 warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. 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 spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. 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 warrants a 10 percent rating. Note 1 provides that VA must evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. III. Analysis Prior to February 9, 2009 At a March 2008 general VA examination, the appellant complained of low back pain. He stated that he could not lift his grandchildren because of pain in the joints and back. He told the examiner that he had not had flare-ups or periods of incapacitation. On examination, the appellant's gait was normal. The VA examiner noted that there were no other spine impairments noted or suggested except as contained in the report. A December 2008 private treatment record reflects that the appellant reported a history of constant low back pain involving the bilateral legs. He reported his pain that day was 8 on a scale of 1 to 10. He had increased complaints of pain associated with inactivity. He had decreased complaints of pain associated with range of motion and stretching. Specific ranges of motion were not reported. On examination, his gait was normal. The range of motion of the thoracic spine was adequate. The range of motion of the lumbar spine was adequate, but there was increased pain with side bending and extension. The record noted that most likely the appellant was experiencing back pain due to facet joints. He had pain with rotation, and side bending in the cervical and lumbar area. He also had pain with extension in his lumbar spine. The private physician noted that it was certainly possible that he may have a combination of pain due to disc degeneration and facet joints. Based on the evidence of record, the Board finds that a higher rating of 10 percent is warranted prior to February 9, 2009. Objective evidence of the appellant's lumbar spine range of motion has not been associated with the claims file from prior to the April 2009 VA examination. However, the March 2008 general VA examination reflects that the appellant complained of low back pain. The December 2008 private treatment record noted that the range of motion of the lumbar spine was adequate, but there was increased pain with side bending and extension. As noted above, under the General Rating Formula for the Spine, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour warrants a 10 percent rating. VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability. Deluca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 and 4.59. As the appellant experienced pain on motion of the low back during the period on appeal prior to February 9, 2009, the Board finds that a rating of 10 percent is warranted. The appellant is competent to report symptoms of pain and the Board finds him to be credible as his statements are consistent with the evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant consistently reported having back pain prior to February 9, 2009. The December 2008 private treatment record noted that the appellant had increased pain with side bending and extension of the lumbar spine. Accordingly, the Board finds that a higher rating of 10 percent is warranted for the period on appeal prior to February 9, 2009. However, the Board does not find that a rating in excess of 10 percent is warranted. A preponderance of the evidence is against a finding that the appellant had forward flexion of the thoracolumbar spine of 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour. The December 2008 private treatment record noted that the range of motion of the thoracic spine was adequate. The Board has considered whether the appellant is entitled to a higher rating under another Diagnostic Code, but finds none. The December 2008 private treatment record indicated that the appellant reported a history of constant low back pain involving the bilateral legs. The Board notes that the appellant is separately rated for radiculopathy of the right and left lower extremities effective January 19, 2010. The appellant did not appeal the effective date of the grant of a separate rating and that issue is not before the Board. The evidence from prior to February 9, 2009, does not indicate that the appellant had other neurologic abnormalities related to his service-connected low back disability. The evidence also does not reflect that the appellant had any incapacitating episodes, defined as a period of acute signs and symptoms due to intervetebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Thus, a higher rating is not warranted under the criteria for intervetebral disc syndrome. From February 9, 2009, through February 2, 2011, and from June 1, 2011, through July 18, 2011 The appellant's thoracolumbar spine is rated as 10 percent disabling from February 9, 2009, through July 18, 2011, except for a temporary 100 percent rating from February 3, 2011, through May 31, 2011. For the reasons that follow, the Board finds that a rating in excess of 10 percent is not warranted. The April 2009 VA examination report reflected that the appellant's thoracic spine had flexion of 0 to 90 degrees. On palpation, there was no tenderness or muscle spasm. The appellant did not have pain on flexion. He had normal strength in the lower extremities with 1+ reflexes and normal sensation. The appellant reported that he had no incapacitating episodes in the last year. A June 2009 VA treatment record reflected that the appellant reported having had epidural injections in his back. He reported having a history of back pain. Another June 2009 VA treatment record noted that the appellant complained of constant pain, including in his low back. He stated that the pain affected his sleep, appetite, physical activity, walking, relationship with others, sexual activity, emotions, concentration and work productivity. An August 2009 letter from C.T., M.D., indicated that she had treated the appellant for low back pain. She noted that the appellant was treated with Ibuprofen and Vicodin for pain. On physical examination, the appellant had adequate lumbar range of motion but did note pain with side-bending as well as lumbar extension. A September 2009 VA treatment record noted that the appellant complained of degenerative disc disease. On examination, he had a normal gait. The physician noted that the appellant was on medications through a pain specialist, but was presently off of all medications and appeared stable. A March 2010 private treatment record indicates that the appellant reported having back pain that radiated down to his leg. On examination, the appellant was noted to have severe pain in the lower back that was worse with motility. The appellant had normal musculature. There was no joint deformity or abnormalities. He had a normal range of motion for his age. The May 2010 VA examination report indicated that the appellant's gait was normal. The thoracolumbar spine had forward flexion of 0 to 80 degrees with pain at 80 degrees. He had extension of 0 to 20 degrees with pain at 20 degrees, right and left rotation of 0 to 10 degrees with pain at 10 degrees, and right and left lateral flexion of 0 to 20 degrees with pain at 20 degrees. The appellant did not exhibit any functional loss due to pain, fatigue, weakness, lack of endurance or incoordination on repetitive motion testing. He did experience increased pain on repetitive motion testing. He was able to flex in the standing position from 0 to 80 degrees, but he was able to sit on the examination table with the hips and back flexed to 90 degrees. There were no palpable muscle spasms. Waddell signs were positive for axial loading and light touch. The appellant could heel and toe walk. There was tenderness to palpation from L1 to L5 bilaterally. The appellant reported having flare-ups three to four times per year that caused him to seek self-imposed bedrest for approximately two days. The appellant occasionally used a lumbar support. He used no other orthopedic assistive device. The appellant complained of radiation of pain into both legs equally. On examination, distal sensation was intact to sharp/dull and vibratory sense. The May 2010 VA examination report noted that the appellant was not currently employed, but was looking for work. His activities of daily living were affected. He stated that he could not do any yard work. He was able to take care of very minor household chores. He was able to feed, dress, and take care of personal hygiene. A December 2010 VA treatment record noted that he complained of low back pain which he stated happened every couple of years. The appellant was slow to get up and walking slowly. A January 2011 private treatment record found the lumbar spine was tender to palpation and percussion. The cervical and thoracic spine were nontender. A February 2011 operative report reflects that the appellant had a left L4-5 extended hemilaminotomy, foraminotomy, and diskectomy with decompression of the L4 and L5 nerve roots. A July 2011 VA treatment note indicated that the appellant had called requesting a back brace. Based on the evidence of record, the Board finds that a higher rating is not warranted for thoracic spine degenerative joint disease from February 9, 2009 through February 2, 2011, or from June 1, 2011, through July 18, 2011. As noted above, a 20 percent rating is warranted under Diagnostic Code 5237 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 spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The evidence does not reflect that the appellant had forward flexion of less than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees. The April 2009 VA examination report indicated the appellant's thoracic spine had flexion of 0 to 90 degrees. The May 2009 VA examination report indicated that the thoracolumbar spine had forward flexion of 0 to 80 degrees with pain at 80 degrees. The VA examiner also noted that the appellant was able to sit on an examination table with the hips and back flexed to 90 degrees. The April 2009 letter from C.T. stated that on physical examination, the appellant had an adequate lumbar range of motion. The March 2010 private treatment record indicated the appellant had a normal range of motion for his age. The evidence also did not show that the appellant had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour. The May 2010 VA examination report also noted that the appellant did not have muscle spasms. The appellant's gait was noted as normal throughout the period on appeal. See September 2009 VA treatment record, May 2010 VA examination report. The Board finds that even with consideration of DeLuca, the appellant is not entitled to a higher rating for his thoracolumbar spine. The evidence reflects that the appellant consistently reported pain in his low back. The appellant is competent to report symptoms of pain and the Board finds him generally credible in this regard. However, the Board finds that the evidence does not reflect that the appellant's pain caused functional impairment warranting a higher rating. The April 2009 VA examination report noted that appellant did not have pain on flexion. The May 2010 VA examination indicated the appellant had forward flexion of 0 to 80 degrees with pain and the appellant did not exhibit any functional loss due to pain, fatigue, weakness, lack or endurance or in coordination on repetitive motion testing. The May 2010 VA examination report noted that the appellant occasionally used a lumbar support. The appellant was able to feed, dress, and take care of personal hygiene, although he could not do yard work. The Board finds that the overall evidence does not support a finding that the appellant is entitled to a rating in excess of 10 percent for functional impairment. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). The appellant also submitted statements dated in June and July 2011 from his wife and co-workers. In the statements, the appellant's wife and co-workers stated that they had observed the appellant experiencing pain in his back. The appellant's wife stated that she noticed the appellant having pain in his back, legs and shoulders when he tried to walk and sit for long period of time and attempt to reach over his head. She also stated that he had trouble lying down and sleeping due to the pain and stiffness in his back and legs. The lay witnesses are competent to report that they observed the appellant having symptoms of pain. See Jandreau, 492 F.3d at 1377. The Board finds the statements to be credible as they are consistent with the other evidence of record which indicates the appellant has experienced pain in his back. However, the Board finds that the statements do not show that the appellant is entitled to a higher rating. As discussed above, the Board has considered the appellant's reports of pain and finds that the 10 percent rating reflects the appellant's symptoms, including his symptoms due to pain. The Board has considered whether the appellant is entitled to a higher rating under another Diagnostic Code, but finds none. As noted above, the appellant is separately rated for radiculopathy of the right and left lower extremities effective January 19, 2010, and that issue is not before the Board. The evidence from prior to February 9, 2009, does not indicate that the appellant had other neurologic abnormalities related to his service-connected low back disability. Although the appellant reported self-imposed bed rest during flare-ups at the May 2010 VA examination, there is no evidence the appellant was prescribed bed rest. Thus, he did not have any incapacitating episodes, as defined by Diagnostic Code 5243, and a higher rating is not warranted under that Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Code 5243. From July 19, 2011 In the November 25, 2011, rating decision, the RO granted an increased evaluation of 40 percent for degenerative joint disease, thoracolumbar spine, status post-lumbar discectomy, effective July 19, 2011. For the reasons discussed below, the Board finds that the appellant is not entitled to a rating in excess of 40 percent from July 19, 2011. Based on the evidence from July 19, 2011, the Board finds that a rating in excess of 40 percent is not warranted. Under Diagnostic Code 5237, a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The evidence does not reflect that the appellant had ankylosis of the thoracolumbar spine. The appellant's thoracolumbar spine had flexion of 30 degrees at the July 2011 VA examination. The examiner specifically noted that there was no anklyosis of the thoracolumbar spine. Even with consideration of DeLuca, the appellant had no additional loss of flexion following five range of motion tests. He did not report having flare-ups. Pain was present on the examination after the first and fifth range of motion tests, but there was no fatigue, weakness, lack of endurance, or in coordination. There was painful motion and guarding of movement, but no muscle spasm, effusion, instability, tenderness, redness, heat or abnormal movement. He did not need ambulatory devices. The appellant's walk was not unsteady. The VA examiner found the appellant's thoracolumbar spine disability had a moderate effect on his occupation and activities. The appellant's symptoms, even with consideration of pain, are not equivalent to unfavorable anklyosis of the entire thoracolumbar spine. Thus, the Board finds that the functional impairment caused by the back disability does not warrant a rating in excess of 40 percent, from July 19, 2011. See 38 C.F.R. §§ 4.40, 4.45 and 4.59 (2012). The Board has considered whether the appellant is entitled to a higher rating under another Diagnostic Code. The July 2011 VA examination report indicated the appellant had not had any incapacitating episodes during the past 12 months. Thus, a higher rating is not warranted under Diagnostic Code 5243. Note (1) of the General Rating Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. The July 2011 VA examiner noted that the appellant did not suffer from bladder or bowel dysfunction. Lower extremity motor and sensory functions were normal and the appellant is separately rated for radiculopathy of the lower extremities. As discussed below, the Board finds that the VA examiner's rationale is inadequate in regard to whether the appellant's erectile dysfunction is associated with the thoracolumbar spine disability. Thus, the Board is remanding that issue separately. Other Considerations The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the left knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's degenerative joint disease of the thoracolumbar spine are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the thoracolumbar spine disability is primarily manifested by limitation of motion due to pain. The applicable diagnostic code used to rate the appellant's disability provides for ratings based on limitation of motion, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disabilities have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU is an element of all appeals for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, TDIU consideration is not warranted. The appellant's claim for entitlement to a TDIU was denied in a November 2011 rating decision. The issue of entitlement to a TDIU has not been raised by the record since that time. ORDER Entitlement to an initial rating of 10 percent, but no higher, prior to February 9, 2009, for degenerative joint disease of the thoracolumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a staged initial rating in excess of 10 percent for degenerative joint disease of the thoracolumbar spine from February 9, 2009, through February 2, 2011, and from June 1, 2011, through July 18, 2011, is denied. Entitlement to a staged initial rating in excess of 40 percent for degenerative joint disease of the thoracolumbar spine from July 19, 2011, is denied. REMAND Remand is required to address the issue of entitlement to a separate rating for erectile dysfunction as a neurologic abnormality associated with the service-connected thoracolumbar spine disability. As noted above, VA regulations provide for the separate evaluation of compensable objective neurologic abnormalities associated with a spinal disability. See 38 C.F.R. § 4.71a, Note (1). In a January 2010 statement, the appellant asserted that his back disability contributed to his erectile dysfunction. The July 2011 VA examination noted that the appellant claimed he had erectile dysfunction related to his thoracolumbar spine disability. The VA examiner found that the appellant's erectile dysfunction was not at least as likely as not secondary to the spine condition. In the rationale, the VA examiner stated that the erectile dysfunction "precedes back complaints." Service connection may be also granted for disability which is proximately due to, the result of, or aggravated by, a service connected disease or injury. 38 C.F.R. § 3.310. As the VA examiner did not address whether the erectile dysfunction was aggravated by the service-connected thoracolumbar spine disability, the rationale is inadequate. Thus, it is unclear from the evidence of record as to whether a separate rating may be warranted for the appellant's claim of erectile dysfunction as a neurologic abnormality associated with his service-connected thoracolumbar spine disability. Consequently, a new VA opinion should be obtained to determine whether the appellant currently has erectile dysfunction as a neurologic abnormality associated with his thoracolumbar spine disability. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to the examiner who conducted the July 2011 VA examination, or if unavailable, another appropriate VA clinician for review. The VA clinician should provide an opinion as to whether it is at least as likely as not (50 percent probability) that the appellant's reported erectile dysfunction is a neurologic abnormality that was caused or aggravated by, the appellant's service-connected low back disability. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of erectile dysfunction present (i.e., a baseline) before the onset of the aggravation. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the VA clinician determines that a VA examination is necessary to provide an opinion, such should be accomplished. 2. Thereafter, readjudicate the issue on appeal of entitlement to a separate rating for erectile dysfunction as a neurologic abnormality associated with the service-connected thoracolumbar spine disability. If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs