Citation Nr: 1328190 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 07-39 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a disability rating greater than 40 percent for service-connected right L5 radiculopathy and L4-L5 herniated disc with lumbosacral paravertebral myositis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from December 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This appeal was previously before the Board in September 2011. The Board is satisfied that there has been substantial compliance with the remand directive and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). In July 2012 correspondence the Veteran raised the issues of entitlement to service connection for bilateral hearing loss, a cervical spine disorder, a bilateral hip disorder, and a sinus disorder as well as the issue of entitlement to an increased rating for gastritis. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the issues are referred to the AOJ for appropriate action. The Board notes that while the Veteran has complained that his service-connected low back disorder makes it difficult for him to work as a police officer, the Veteran indicated in February 2007, June 2009, and October 2011 VA examinations that he was employed fulltime as a police officer and had not missed any work due to his back disorder. The record does not show that his disability prevents him from obtaining or retaining employment. Therefore, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability has not been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that such records are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's right L5 radiculopathy and L4-L5 herniated disc with lumbosacral paravertebral myositis has been manifested by significant loss of motion but no ankylosis, either favorable or unfavorable. There is no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. CONCLUSION OF LAW The criteria for a disability rating greater than 40 percent for the Veteran's right L5 radiculopathy and L4-L5 herniated disc with lumbosacral paravertebral myositis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal arises out of the Veteran's assertion that his service-connected right L5 radiculopathy and L4-L5 herniated disc with lumbosacral paravertebral myositis is more disabling than evaluated. Analysis Disability ratings are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. A request for an increased rating is to be reviewed in light of the entire relevant medical history. See generally 38 C.F.R. § 4.1; Payton v. Derwinski, 1 Vet. App. 282, 287 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Furthermore, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Also, the VA General Counsel held in VAOPGCPREC 9-98 after reiterating its holding in VAOPGCPREC 23-97 that pain as a factor must be considered in the evaluation of a joint disability with arthritis and that the provisions of 38 C.F.R. § 4.59 are for consideration. The Veteran's lumbar spine disorder is currently rated under 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine a 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is appropriate for favorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent evaluation is appropriate for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237 (effective September 26, 2003). The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. IDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IDS) Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least one week but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Factual Background The Veteran's service treatment records show that he was involved in a motor vehicle accident in February 1991 while riding in a truck convoy in Dahran, Saudi Arabia. Initially, his complaints were attributed to mechanical pain posttraumatic with scoliosis but he was subsequently referred for an orthopedic evaluation because of chronic persistent back pain. During his September 1991 separation examination the Veteran also complained of back pain. The Veteran submitted a claim for service connection for a low back disorder in October 1991. He was afforded a VA examination in January 1992 which showed a diagnosis of posterior midline herniated disc at the L4-L5 level. By rating decision dated in April 1992 the RO granted service connection for herniated nucleus pulposus L4-L5 and assigned a 20 percent disability rating effective September 30, 1991, the day after the Veteran's discharge from military service. This initial 20 percent disability rating was confirmed by rating decision dated in June 1994. In May 1998 the Veteran submitted a claim for an increased rating for his lumbar spine disorder. In connection with this claim the Veteran was afforded another VA examination in July 1998 which showed a diagnosis of posterior midline herniated disc at L4-L5 as well as lumbosacral paravertebral myositis. The examination also showed right L4-L5 radiculopathy by electromyelogram. By rating decision dated in November 1998 the RO included the right L4-L5 radiculopathy and lumbosacral paravertebral myositis with the already service connected posterior herniated disc L4-L5 and increased the Veteran's disability rating to 40 percent effective May 20, 1998, the date of his claim for an increased rating. This 40 percent disability rating was confirmed by rating decision dated in September 2002. In January 2007 the Veteran submitted a claim for an increased rating for his lumbar spine disorder. It is this claim from which the current appeal stems. He was afforded a VA examination in February 2007 and, by rating decision dated in April 2007 the RO continued the previously assigned 40 percent disability rating. The Veteran perfected an appeal of this decision and, subsequently, was afforded additional VA examinations of his spine in June 2009 and October 2011. Evidence relevant to the current level of severity of the Veteran's lumbar spine disorder includes the February 2007, June 2009, and October 2011 VA examination reports as well as private treatment records dated through July 2012 and VA treatment records dated through September 2011. During the February 2007 VA examination the Veteran complained that his back pain was getting progressively worse. He treated his back pain with medication and walking and the response to the treatment was fair. Side effects from the treatment included loose stools. There was no history of hospitalization or surgery due to his spine and no history of neoplasm. There was no history of urinary incontinence, urgency, or urinary retention requiring catheterization. There was nocturia, voiding approximately once per night, but there was no fecal incontinence. There was no numbness, paresthesias, leg/foot weakness, falls, or unsteadiness. There was pain and cramps in legs more on the right leg (specifically, calf area). The location of the pain was the low back area and was of a severity of 6/10. There was locking of the back similar to a pinched nerve and the severity of the pain was moderate. The pain was daily and constant. There was radiation of the pain to the right buttock, posterior thigh calf and leg like a pinched nerve. The radiating pain was described as a pulling sensation or pinched nerve. There were no flare-ups of spinal conditions. It was noted that the examination was for intervertebral disc syndrome (IVDS). With regard to the number of incapacitating episodes for the thoracolumbar region during the past 12 month period, it was indicated that no medical certificates had been issued for strict bed rest due to IVDS during the last year. No devices/aids were used for walking the Veteran was able to walk one to three miles. Examination of the muscles of the spine revealed spasm and tenderness but there was no atrophy, guarding, or weakness. It was indicated that muscle spasm, localized tenderness, or guarding was not severe enough to be responsible for abnormal gait or abnormal spine contour. Inspection of the spine was normal and there were no abnormal curvatures. Motor examination was normal with the exception of great toe extension (L4, L5, S1) and deep peroneal nerve (extensor hallucis longus muscles) which showed some resistance on the right side. Muscle tone was normal and there was no atrophy. Sensory examination was normal on the left but showed diminished sensation on the right now following any specific dermatomal pattern (non-radicular). Reflex examination was normal except for knee jerk on the right (L3-L4) which was hypoactive on the right. There was no thoracolumbar spine ankylosis. With regard to range of motion testing, the examiner indicated that range of motion of the thoracolumbar spine was measured but not reported because the Veteran was observed by the examiner while dressing and undressing and he had a lot more range of motion than when actually measured with a pain free face expression. The Veteran had a visual forward flexion from 0 to 60 degrees and right and left lateral flexions and rotations from 0 to 25 degrees with extension from 0 to 25 degrees. Due to what was formerly explained, the examiner could not state whether the Veteran was additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use without resorting to mere speculation. Lasegue's sign was positive on the right. There was no claim of vertebral fracture and no testing for non-organic physical signs was conducted. A magnetic resonance imaging (MRI) scan showed discogenic disease of the lower lumbar spine as well as bilateral spondylosis of the L5-S1 interspace. With regard to the Veteran's employment, the Veteran reported that he was employed fulltime as a police sergeant and had been engaging in such employment for 20 years. The Veteran denied any lost time from work in the last 12 month period due to his back disorder. The examiner diagnosed right L5 radiculopathy; L4-L5 herniated disc with lumbosacral paravertebral myositis. The problem associated with the diagnosis was low back pain. This resulted in significant effects on the Veteran's on his usual occupation, specifically, the Veteran reported difficulty standing or driving for 30 to 45 minutes. There were effects on his daily activities, specifically, his low back disorder prevented shopping and sports and had a moderated effect on chores, exercise, and traveling. There was no effect on recreation, feeding, bathing, dressing, toileting, and grooming. During the June 2009 VA examination the Veteran reported that his low back disorder and been getting progressively worse. He complained of pressure and stabbing like pain sensation which radiated to the right lower extremity. Also, he reported right lower extremity numbness sensation. The Veteran reported that the pain was constant. Symptoms were exacerbated after prolonged time on standing or sitting position. He reported using pain medication with fair response. There was no history of urinary incontinence, urgency, urinary retention requiring catheterization, urinary frequency, or nocturia. There was also no fecal incontinence, obstipation, or erectile dysfunction. There was numbness and paresthesias but no leg/foot weakness. There were no falls or unsteadiness. There was no fatigue or weakness but there was decreased motion, stiffness, spasms, and pain. As above, the pain was of a stabbing and pressure like pain sensation. The severity was moderate, the duration was constant, and the frequency was daily. There was radiation of the pain to the right lower extremity or a current like pain sensation. There were flare-ups of spinal conditions which were severe, occurred weekly, and lasted for hours. Precipitating factors included ambulation and prolonged standing or sitting position. Alleviating factors included medication. There were no reported incapacitating episodes of spine disease. The Veteran did not use devices/aids for ambulation and was able to walk a quarter of a mile. Physical inspection of the spine, to include, posture, head position, and symmetry of appearance were normal. Also, gait was normal. There were no abnormal spinal curvatures with the exception of lumbar flattening. There was no cervical spine or thoracolumbar spine ankylosis. Examination of the muscles of the spine revealed spasm, guarding, pain with motion, and tenderness. There was no atrophy or weakness. It was noted that the muscle spasm, localized tenderness, and/or guarding was not severe enough to be responsible for abnormal gait or abnormal spine curvature. Motor examination was normal. Sensory examination was normal with the exception of diminished pinprick sensation on the right and no light touch on the right. It was indicated that the L4-L5-S1 dermatome area showed sensory loss. Reflex examination showed normal knee jerk, hypoactive ankle jerk, and normal plantar. On range of motion testing the Veteran had flexion from 0 to 6 degrees, extension from 0 to 0 degrees, left lateral flexion from 0 to 5 degrees, left lateral rotation from 0 to 6 degrees, right lateral flexion from 0 to 5 degrees, and right lateral rotation from 0 to 6 degrees. There was objective evidence of pain on active range of motion. There was objective evidence of pain following repetitive motion and additional limitations after three repetitions of range of motion. The most important factor was pain. Range of motion after repetitive motion was as follows: flexion from 0 to 6 degrees, extension from 0 to 0 degrees, left lateral flexion from 0 to 5 degrees, left lateral rotation from 0 to 5 degrees, right lateral flexion from 0 to 5 degrees, and right lateral rotation from 0 to 5 degrees. The examiner indicated that this range of motion was not "normal" for the Veteran due to other factors not related to the disability being examined. It was indicated that Lasegue's sign was negative but Waddell's sign was positive. Regionalization, overreaction, and tenderness were present but simulation and distraction were absent. The examiner noted the results of a June 2007 lumbar computed tomography (CT) scan and January 2007 MRI and reported diagnoses of discogenic disease of the lower lumbar spine and bilateral spondylosis of the L5-S1 interspace. The examiner also noted the results of a June 2009 lower extremity EMG/nerve conduction study (NCS) and indicated that there was evidence of chronic L5 posterior RAMI irritability but no evidence of active right L5 radiculopathy on examination. All test reports were included in the examination report. It was noted that vertebral fracture was not a claimed condition. With regard to the Veteran's employment, the Veteran reported that he had been working fulltime as a policeman for more than 20 years. He denied lost time from work in the last 12 month period due to his back disorder. The examiner diagnosed discogenic disease of the lower lumbar spine, bilateral spondylosis of the L5-S1 interspace, and lumbar strain. The problem associated with the diagnosis was chronic low back pain and this resulted in significant effects on the Veteran's usual occupation, specifically, problems with lifting and carrying as well as pain. The examiner also indicated that the Veteran's back disorder affected his usual daily activities. Specifically, there was a mild effect with regard to feeding and toileting. There was a moderate effect with regard to chores, shopping, recreation, traveling, bathing, dressing, and grooming. Finally, the Veteran's back disorder prevented exercise and sports. During the October 2011 VA spine examination the Veteran again complained of constant low back pain which radiated toward the right lower extremity. He was using pain medication with good results. The Veteran reported flare-ups that impacted the function of the thoracolumbar spine, specifically, he was unable to walk or lift objects. On range of motion testing and with consideration of pain the Veteran had flexion to 5 degrees, extension to 0 degrees, right lateral flexion to 5 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. On range of motion testing after repetitive testing the Veteran had flexion to 5 degrees, extension to 0 degrees, right lateral flexion to 0 degrees, left lateral flexion to 0 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. The examiner noted that the Veteran had additional limitation in range of motion of the thoracolumbar spine following repetitive testing. The examiner also noted that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine. Significantly, the examiner noted that there was less movement than normal and pain on movement. There was no swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, or interference with sitting, standing, and/or weight-bearing. With regard to pain and muscle spasm, the examiner noted that the Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran also had guarding and/or muscle spasms which did not result in abnormal gait or spinal contour. Muscle strength testing was normal and there was no muscle atrophy. Reflex examination. Sensory examination was normal with the exception of the right lower leg/ankle/foot/toes, which was "decreased." Straight leg raising test was negative. The Veteran did have mild radicular constant pain due to radiculopathy in the right lower extremity. There was no radicular pain for the left lower extremity. There was no intermittent pain, paresthesias/dysesthesias, or numbness. The Veteran did not have any other signs or symptoms of radiculopathy. There were no other neurological abnormalities. The examiner noted that the Veteran had IVDS but that the Veteran's IVDS had not resulted in any incapacitating episodes in the last 12 months. With regard to assistive devices, it was reported that the Veteran used a lumbar back brace occasionally to assist in locomotion. It was noted that the Veteran's low back disorder had not resulted in any scars. The examiner indicated that imaging studies revealed arthritis but were negative for vertebral fracture. The examiner also noted the findings of a September 2011 MRI and a November 2011 EMG. With regard to the impact of the Veteran's low back disorder on his ability to work, the examiner noted that the Veteran's thoracolumbar spine disorder did not impact his ability to work. Notably, the October 2011 VA examination report shows that the examiner reviewed the claims file in connection with the examination. During the October 2011 VA peripheral nerves examination the examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. The examiner noted mild, constant pain of the right lower extremity but indicated that there was no intermittent pain, paresthesias and/or dysesthesias, or numbness. Muscle strength testing and reflex testing were normal and there was no muscle atrophy present. Sensory examination was normal with the exception of the right lower leg/ankle/foot/toes, which was "decreased." There were no trophic changes and the Veteran's gait was normal. No special tests were performed for the median nerve evaluation. It was noted that sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), complete paralysis (dorsiflexion of foot lost), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, external cutaneous nerve of the thigh, and ilio-inguinal nerves were normal. With regard to assistive devices it was noted that the Veteran occasionally used a back brace for locomotion due to low back pain. It was noted that the Veteran's low back disorder had not resulted in any scars. It was indicated that a November 2011 EMG was normal. With regard to the impact of the Veteran's peripheral nerve condition on his ability to work, the examiner noted that the Veteran's disorder did not impact his ability to work. Also of record are various VA and private treatment records dated through July 2012 which note complaints of back pain. Significantly, an April 2008 private treatment record notes X-ray examination findings of the lumbosacral spine, specifically, dextroscoliosis, spondylotic changes, narrowing of L5-S1 intervertebral spaces and suspect also small reverse spondylolisthesis of L5 over S-1. Discogenic disease in L5-S1 was suspected and an MRI was recommended. As above, the October 2011 VA examiner noted findings of a September 2011 MRI which was considered by the October 2011 VA examiner when making his opinion that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. In a July 2012 statement from Dr. N.A.O., the Veteran's private physician, she wrote that the Veteran's back pain had been getting worse. She indicated that the Veteran presented with recurrent episodes of "locking" and was not able to tolerate prolonged sitting or standing positions. He could not lift heavy things, bend, squat, or crawl and his ability to crawl or reach was limited. He did not tolerate prolonged walking or stair climbing. He presented with constant stiffness of the back with continuous muscle spasm. He also presented with painful range of motion at the cervical area. He had limited movements and frequent episodes of muscle spasm. The Veteran reportedly had tried multiple oral medications, physical therapies, and spinal block with poor improvement. He presented with fatigue, pain, numbness, and pinprick sensation at lower extremities. His back and neck condition had been getting worse with time and he used a back brace for stability. According to Dr. N.A.O, all of this had resulted in a restriction of the Veteran's daily activities and social functioning. He was no longer able to tolerate strong physical activity. He could not play sports as he used to with his kids. He was having intimacy problems with his wife due to his back problem. He needed help at home with his daily task and had continued working with acute pain exacerbations because his responsibilities did not make it easy to miss a day of work. Analysis Given the above, the Board finds that a disability rating in excess of 40 percent is not warranted for the Veteran's lumbar spine disorder. Initially, the Veteran's range of motion does not meet the criteria for a 50 percent rating under the general rating formula as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. As above, in the February 2007 VA examination the Veteran had visual forward flexion from 0 to 60 degrees and right and left lateral flexions and rotations from 0 to 25 degrees with extension from 0 to 25 degrees. In the June VA 2009 examination the Veteran had flexion from 0 to 6 degrees, extension from 0 to 0 degrees, left lateral flexion from 0 to 5 degrees, left lateral rotation from 0 to 5 degrees, right lateral flexion from 0 to 5 degrees, and right lateral rotation from 0 to 5 degrees (all measurements after repetitive testing). In the October 2011 VA examination the Veteran had flexion to 5 degrees, extension to 0 degrees, right lateral flexion to 0 degrees, left lateral flexion to 0 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees (all measurements after repetitive testing). As above, under Note (5), unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of several complications. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. As the Veteran has some movement of his lumbar spine and there is no evidence that he experiences any of the above complications due to his severely limited motion, there is no evidence of unfavorable ankylosis. Also, there is no evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. As above, during each of the February 2007, June 2009, and October 2011 VA examinations, the examiners indicated that there were no records showing incapacitating records. Furthermore, the in each of the examinations the Veteran denied missing any work due to his back in the previous 12 months. Thus, a disability rating greater than 40 percent under DC 5243 is not warranted on that basis either. The Board also finds that the Veteran has not demonstrated any additional functional loss to warrant an increased evaluation based on 38 C.F.R. §§ 4.40, 4.45, and 4.59. Even considering the Veteran's loss of motion due to pain or repetitive movement pursuant to DeLuca he is not entitled to a higher rating as there is no evidence of ankylosis on repetitive movement of the lumbar spine. As for whether the Veteran is entitled to a separate compensable rating for his service-connected right leg radiculopathy, while the Veteran had an abnormal motor and sensory examination in February 2007 and an abnormal sensory examination in June 2009, the October 2011 VA examiner noted the results of a June 2009 lower extremity EMG/nerve conduction study (NCS) and indicated that there was evidence of chronic L5 posterior RAMI irritability but found no evidence of active right L5 radiculopathy on examination. Significantly, during the October 2011 VA peripheral nerves examination the examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. As such, the Veteran is not entitled to a separate compensable rating for his service-connected right leg radiculopathy. In sum, there is no support for assignment of a rating in excess of 40 percent for the Veteran's lumbar spine disorder over any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular consideration As to whether the record raises the matter of referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1), the Board finds that the rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. In this case the Veteran indicated in February 2007, June 2009, and October 2011 that he was employed fulltime as a police officer and had not missed any work due to his back disorder. Furthermore, the Veteran denied any hospitalizations or surgery for his back disorder. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected lumbar spine disorder is adequate and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in February 2007. Moreover, the record shows that the appellant was represented by a Veterans Service Organization throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the severity of his low back disorder, and afforded the appellant the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A disability rating greater than 40 percent for service-connected right L5 radiculopathy and L4-L5 herniated disc with lumbosacral paravertebral myositis is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs