Citation Nr: 1328852 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-19 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for degenerative joint disease of the left ankle, currently evaluated as 20 percent disabling. 2. Entitlement to an initial evaluation in excess of 10 percent for a right hip disability. 3. Entitlement to an initial evaluation for low back strain in excess of 10 percent prior to June 23, 2011, and in excess of 40 percent from that date. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from November 1965 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled for a hearing at the RO before a Veterans Law Judge in May 2013, but failed to appear. FINDINGS OF FACT 1. Degenerative joint disease of the left ankle is manifested by pain and marked limitation of motion, with no ankylosis and no additional loss of range of motion on repetitive use. 2. Right hip disability is manifested by pain, fatigability and limitation of motion; neither nonunion, malunion, false joint, loose motion, flexion limited to less than 45 degrees, nor limitation of abduction to less than 10 degrees is shown. 3. For the period prior to June 23, 2011, low back strain was manifested by lumbosacral flexion to 60 degrees and combined range of motion of the thoracolumbar spine of 185 degrees; there is no evidence of forward flexion of 30 degrees or less, including loss of range of motion due to pain; favorable ankylosis of the entire thoracolumbar spine; or of incapacitating episodes of intervertebral disc syndrome. 4. From June 23, 2011, low back strain is manifested by lumbosacral flexion to 30 degrees; there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or of incapacitating episodes of intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 20 percent for degenerative joint disease of the left ankle have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5271 (2012). 2. The criteria for a rating in excess of 10 percent for right hip disability have not been met or approximated. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5250, 5251, 5252, 5253, 5254, 5255 (2012). 3. For the period prior to June 23, 2011, the criteria for an evaluation of 20 percent, but no higher, for low back strain have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). 4. For the period from June 23, 2011, the criteria for an evaluation in excess of 40 percent for low back strain have not been met approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in May 2008, prior to the adjudication of the Veteran's claims, discussed the evidence necessary to support a claim for service connection on a secondary basis, and claims for increase. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the preadjudicatory notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. The Board additionally notes that, with respect to the right hip and low back claims, this is a case in which the Veteran is challenging the initial evaluations assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. With respect to VA's duty to assist, VA treatment records have been obtained and associated with the record. VA examinations have been conducted. The Board finds that the examinations were adequate, in that they were conducted by neutral, skilled providers who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations prior to providing their conclusions. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability ratings are based upon schedular requirements that reflect the average impairment of earning capacity occasioned by the state of a disorder. 38 U.S.C.A. §1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (2012). In determining the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. §4.2 (2012). An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. §4.10 (2012). Regarding the Veteran's left ankle claim, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held 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. In this case, the Board has concluded that the left ankle disability has not significantly changed and that a uniform evaluation is warranted for the period considered. With respect to the initial rating claims pertaining to the right hip and low back disabilities, the Board observes that in cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether staged ratings are warranted for the right hip disability but finds that the disability has not significantly changed, and that a uniform evaluation is warranted. Regarding the low back disability, the Board has determined that further staged ratings are not necessary. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is 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. Arthritis due to trauma, substantiated by X-ray findings will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 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 Code 5003. 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 (2012). Left Ankle Degenerative Joint Disease On VA examination in September 2008, the Veteran's history was reported. He indicated that he had experienced increased pain and swelling, as well as decreased range of motion. He noted that walking and standing exacerbated his symptoms. He noted that his ankle gave out at times but denied falls. He also denied locking, warmth, and redness. He stated that he could not run or play sports. He denied periods of flare-up, noting that his symptoms were constant and daily. Physical examination revealed very little range of motion in the joint and some bony enlargement at the medial and lateral malleoli. There was no swelling or warmth. There was no tenderness to palpation. There was no ankylosis. Range of motion testing revealed plantar flexion from zero to 18 degrees and dorsiflexion to zero degrees. The examiner noted that the Veteran could not move his ankle beyond 90 degrees. Repetitive motion testing produced pain but no limitations or change in range of motion. On VA examination in June 2011, the Veteran's history was reviewed. He reported that his pain level was 6/10 to 7/10, and that flares caused an increase in pain to 8/10, and that they occurred twice per week. He endorsed functional limitation and reduced motion due to pain. He related that he had stopped playing golf and exercising due to pain. On physical examination, there was effusion in the left ankle. There was no redness, heat, or abnormal movement. There was no weakness. There was no ankylosis or malalignment. Range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 20 degrees. Pain was noted at the end of range of motion. There was no additional loss of motion caused by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Guarding was noted at the end of range of movement. A VA general medical examination was carried out in September 2012. The Veteran stated that his ankle pain was 6/10 to 7.5/10, and that he had some stiffness, giving way and lack of endurance. Range of motion testing revealed dorsiflexion to 15 degrees and plantar flexion to 20 degrees. There was no objective evidence of pain on active motion, and no additional limitations following repetitive motion. The diagnosis was traumatic fracture, left ankle, status post open reduction and internal fixation with degenerative joint disease residuals. The Veteran's left ankle disability is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under those criteria, limitation of motion of the ankle is rated as 10 percent disabling when moderate and as 20 percent disabling when marked. Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. Nonunion of the tibia and fibula, with loose motion and requiring a brace warrants a 40 percent rating. Where there is malunion and marked knee or ankle disability, a 30 percent rating is warranted. Malunion with moderate knee or ankle disability warrants a 20 percent evaluation; with slight knee or ankle disability, a 10 percent evaluation is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Having carefully reviewed the record, the Board has determined that the currently assigned 20 percent evaluation is appropriate. In that regard, the evidence reflects marked limitation of motion of the left ankle, which is contemplated by the current evaluation. A higher evaluation requires objective evidence of ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. Notably, while the 2008 VA examiner indicated that the Veteran could not dorsiflex beyond 90 degrees, he also specified that there was no ankylosis. The Board also observes that there is no evidence of ankylosis that would allow for a higher evaluation under Diagnostic Code 5270, and no indication of nonunion or malunion which would allow application of Diagnostic Code 5262. Rather, the objective evidence demonstrates moderate limitation of motion of the left ankle that is appropriately evaluated as 20 percent disabling. The Board accepts that the Veteran has experienced functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion required to warrant a higher evaluation. The Board therefore finds that the currently assigned evaluation is appropriate for the Veteran's left ankle disability. The Board notes that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's left ankle disability is appropriate. The evidence preponderates against a finding that a higher evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Right Hip Disability On VA examination in September 2008, the Veteran reported that he began to have problems with his right hip three to five years previously. He indicated that pain began with weight bearing or standing and walking and lasted for several hours. He denied redness, swelling, warmth, locking, and giving way. He denied periods of flare-up, noting that his symptoms were constant and daily. Physical examination revealed no tenderness to palpation. The Veteran's gait favored his left side. There was no ankylosis. Range of motion testing revealed flexion from zero to 130 degrees, adduction from zero to 25 degrees, abduction from zero to 35 degrees, external rotation from zero to 60 degrees, and internal rotation from zero to 30 degrees. The examiner noted that pain was evident at the end of the stated ranges. Extension was not tested. Repetitive motion testing produced pain but no limitations or change in range of motion. VA outpatient treatment records reflect that the Veteran is followed by pain management, and that he has undergone injections in his right hip joint. On VA examination in June 2011, the Veteran's history was reviewed. He reported that his pain level was 6/10 to 7/10, that flares caused an increase in pain to 8/10, and that they occurred twice per week. He endorsed functional limitation and reduced motion due to pain. He related that he had stopped playing golf and exercising due to pain. On physical examination, there was no edema or effusion in the right hip. There was no redness, heat, or abnormal movement. There was no weakness. There was no ankylosis or malalignment. Range of motion testing revealed flexion to 110 degrees, extension to 25 degrees, abduction to 40 degrees, adduction to 25 degrees, external rotation to 40 degrees and internal rotation to 25 degrees. Pain was noted at the end of range of motion. There was no additional loss of motion caused by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. A VA general medical examination was conducted in September 2012. The Veteran noted that his pain was intermittent and that it had become progressively worse. Range of motion testing revealed flexion to 110 degrees, extension to 25 degrees, abduction to 40 degrees, adduction to 25 degrees, external rotation to 40 degrees, and internal rotation to 25 degrees. There was no objective evidence of pain on active motion, and no additional limitations following repetitive motion. The diagnosis was early degenerative joint disease of the lumbar spine. Normal hip motion is defined as flexion/extension from zero to 125 degrees and abduction/adduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II (2012). The RO has determined that the Veteran's left hip disability is 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5252. That diagnostic code indicates a 10 percent evaluation where flexion of the thigh is limited to 45 degrees. Limitation of flexion to 30 degrees will be evaluated as 20 percent disabling, and limitation to 20 degrees will be evaluated as 30 percent disabling. A 10 percent evaluation is warranted where extension of the thigh is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. 38 C.F.R. § 4.71a, Diagnostic Code 5252 allows a 10 percent evaluation where there is limitation of rotation with an inability to toe-out the affected leg more than 15 degrees, or limitation of adduction such as to prevent the crossing of the Veteran's legs. Limitation of abduction with motion lost beyond 10 degrees warrants a 20 percent evaluation. Flail joint of the hip warrants an 80 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5254. Diagnostic Code 5255 pertains to impairment of the femur. Where there is a fracture of the shaft or anatomical neck of the femur, with nonunion and loose motion, an 80 percent rating is warranted. With nonunion, but without loose motion, and where weight bearing is preserved with the aid of a brace, a 60 percent rating is warranted. Where there is a fracture of the surgical neck of the femur with a false joint, a 60 percent rating is warranted. Malunion of the femur warrants a 30 percent rating with marked knee or hip disability, a 20 percent rating with moderate knee or hip disability or 10 percent rating if there is slight knee or hip disability. Review of the record discloses that the Veteran's left hip disability is manifested primarily by pain and limited motion, but that the pain and fatigability have not resulted in functional limitation that more closely approximates the criteria for a higher 20 percent evaluation (see Diagnostic Codes 5251 and 5252). The Board observes that the VA examination reports indicate range of motion of the right hip in all planes consistent with the assigned 10 percent evaluation. Moreover, there is no evidence of flail joint. Further, there is no evidence of nonunion or malunion of the femur, a false joint or loose motion. Therefore, when all pertinent disability factors and all potentially applicable diagnostic codes are considered, the Board must conclude that the disability does not more nearly approximate the criteria for a higher evaluation than those for the assigned evaluation of 10 percent. The Board acknowledges that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluation for the Veteran's right hip disability is appropriate. The evidence preponderates against a finding that a higher evaluation is warranted. As such, the appeal is denied. Gilbert. Low Back Strain On VA examination in September 2009 the Veteran reported that he began to have problems with his back three to five years previously. He denied radiation of pain. He indicated that his symptoms were exacerbated by weight bearing, walking, and standing. The examiner noted that the Veteran walked unaided. Physical examination revealed normal curvatures of the spine. Range of motion testing revealed flexion to 73 degrees, with pain at 60 degrees; extension from zero to 18 degrees, with pain at the end of the range; left lateral flexion to 25 degrees with pain at the end of the range; right lateral flexion to 22 degrees, with pain at the end of the range; rotation bilaterally to 30 degrees, with pain at the end of the range on the left and no pain on the right. The examiner noted that repetitive motion testing caused pain but no limitation or change in range of motion. There were no postural abnormalities, ankylosis, or abnormality of the musculature. The diagnosis was chronic low back strain. VA outpatient treatment records indicate that the Veteran is followed in the pain management clinic and has undergone injections in his lumbar spine. An additional VA examination was carried out in June 2011. The Veteran's medical records and history were reviewed. He reported that he underwent injections in April 2011 but that they helped for only three days. The examiner noted that April 2011 X-rays revealed early degenerative disc and osteophytic changes. The Veteran endorsed constant pain, 7/10 or 8/10 in severity. He denied incapacitating episodes of back pain in the previous 12 months. He also denied current treatment. He stated that during flare-up, his pain increased to 9/10 and that flares occurred once per week. He endorsed stiffness, decreased motion, and denied fatigue, muscle spasm, weakness, numbness, paresthesias, and bladder complaints. On physical examination, the Veteran's spine and posture were normal. His gait was normal. There were no abnormal curvatures of the spine. Range of motion testing revealed flexion to 30 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. The examiner noted that there was objective evidence of pain in all motions, with more on forward flexion. She stated that there was no muscle spasm, weakness, or atrophy. Slight tenderness was noted on palpation, and guarding was noted on forward flexion at the end of the range of motion. There was no ankylosis or abnormality of the musculature of the back. The diagnoses were degenerative disc disease at L5-S1, and degenerative joint disease in the lumbar spine. A VA general medical examination was conducted in September 2012. The Veteran endorsed throbbing pain in his low back without radiation to either lower extremity. He stated that he had constant 7/10 or 8/10 pain. He endorsed pain, stiffness, limited motion, and swelling. Range of motion testing revealed flexion to 30 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 20 degrees bilaterally. There was pain at the end of the stated ranges of motion. There was no further pain, weakness, incoordination, or lack of endurance following repetitive motion. The diagnosis was degenerative disc and joint disease of the lumbar spine with mild right lower extremity radiculopathy. The general rating formula for disease and injures of the spine, specifically, 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, provides as follows: A 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the 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 rating 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 rating for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating for unfavorable ankylosis of the entire spine. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 (2012). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis has also been defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under DC 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, DC 5243 (2012). For the period prior to June 23, 2011, the Veteran's low back disability is evaluated as 10 percent disabling. This evaluation contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the 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. A higher evaluation for this period requires evidence demonstrating 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. In this case, the Board notes that for this period, the Veteran had flexion to 60 degrees with pain, but not greater. Such a finding supports a 20 percent evaluation. Accordingly, the Board finds that an evaluation 20 percent for the period prior to June 23, 2011 is warranted. However, an evaluation in excess of 20 percent is not warranted for the period prior to June 23, 2011. In that regard, the Board notes that there is no indication of forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine shown in the objective evidence. As such, the Board concludes that a 20 percent evaluation for this period is appropriate. For the period beginning June 23, 2011, the Veteran's low back strain is assigned a 40 percent evaluation. This rating contemplates forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A higher evaluation requires evidence demonstrating unfavorable ankylosis of the entire thoracolumbar spine. Such is not shown by the evidence of record, and there is no indication that there is functional limitation that more closely approximates the criteria for the higher, 50 percent evaluation. Accordingly, the Board concludes that the current 40 percent evaluation is appropriate for the period beginning June 23, 2011. The Board has also considered whether higher evaluations are warranted pursuant to the criteria for rating intervertebral disc syndrome. However, there is no evidence of such diagnosis associated with the Veteran's low back disability. Accordingly, a higher evaluation pursuant to the criteria for evaluating intervertebral disc syndrome is not for application. The Board accepts that the Veteran has experienced functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluations for the periods considered. The Board therefore finds that the currently assigned evaluations are appropriate for the Veteran's low back disability. The Board notes that the Veteran is competent to report that his disability is worse. However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned evaluations for the Veteran's low back disability are appropriate. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert. Extraschedular Consideration 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 periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veterans 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, the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected left ankle, right hip, or back disabilities. The medical evidence fails to demonstrate, at any time during the appellate period, symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, as discussed in detail above, the symptomatology of the Veteran's disabilities is specifically contemplated under the appropriate rating criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the ratings schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. In short, the evidence does not support the proposition that the Veteran's service connected left ankle, right hip, or low back disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). ORDER Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the left ankle is denied. Entitlement to an evaluation in excess of 10 percent for a right hip disability is denied. Entitlement to an evaluation of 20 percent for low back strain for the period prior to June 23, 2011 is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an evaluation in excess of 40 percent for low back strain for the period from June 23, 2011 is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs