Citation Nr: 1329660	
Decision Date: 09/16/13    Archive Date: 09/20/13

DOCKET NO.  09-08 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to an increased evaluation for low back pain, 
currently rated 10 percent disabling.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans 
Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel
INTRODUCTION

The Veteran served on active duty from July 1985 to October 
1988.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a February 2007 rating decision by the 
Atlanta, Georgia, Regional Office (RO) of the Department of 
Veterans Affairs (VA) which, inter alia, denied the 
Veteran's claim for a rating greater than 10 percent for her 
service-connected low back pain.

In September 2012, the Veteran, accompanied by her 
representative, appeared at the RO to present oral testimony 
and submit evidence and arguments in support of her appeal 
before the undersigned Veterans Law Judge.  A transcript of 
this hearing has been obtained and associated with the 
Veteran's claims file for the Board's review and 
consideration.  

In April 2013, the Board remanded the case to the RO via the 
Appeals Management Center (AMC) in Washington, D.C., for 
additional evidentiary development, including scheduling the 
Veteran for an examination to assess the severity of her 
service-connected low back pain.  After this development, 
the case was readjudicated by the AMC in a May 2013 
supplemental statement of the case, which confirmed and 
continued the 10 percent evaluation assigned for low back 
pain.  The case was recertified to the Board in June 2013 
and returned to the Board's custody in July 2013, and the 
Veteran now continues her appeal.   

(The Board notes that an additional issue of entitlement to 
service connection for mitral valve prolapse was also on 
appeal and was remanded by the Board in April 2013 for 
additional evidentiary development, which included 
scheduling the Veteran for a VA medical examination in April 
2013.  Based on a favorable nexus opinion presented by the 
examining clinician, the Veteran was granted service 
connection and a 10 percent rating for mitral valve prolapse 
in a May 2013 rating decision, thereby fully granting the 
benefit sought on appeal in this regard and ending the 
Veteran's appeal with respect only this specific issue.)  
FINDING OF FACT

During the pendency of the claim, the Veteran's service-
connected low back pain has been manifested by subjective 
complaints of chronic, persistent low back pain with 
radiculopathic symptoms radiating down her right lower 
extremity and foot, with the confirmed presence of 
degenerative changes of her lumbosacral spine, vertebrae, 
discs on medical imaging studies, and limitation of 
thoracolumbar forward flexion to greater than 60 degrees but 
not greater than 85 degrees, with a combined range of 
thoracolumbar motion of greater than 120 degrees but not 
greater than 235 degrees on repetitive motion testing 
(factoring in functional loss due to pain), with muscle 
spasm that does not alter her gait and no neurological 
impairment of the adjacent peripheral nerves or 
incapacitating episodes associated with the radiculopathic 
component of her low back disability. 


CONCLUSION OF LAW

The criteria for the assignment of an evaluation greater 
than 10 percent for service-connected low back pain have not 
been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§ 4.71a, Diagnostic Code 5237 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the claim decided herein, the Board notes at 
the outset that, in accordance with the VCAA, VA has an 
obligation to notify claimants what information or evidence 
is needed in order to substantiate a claim, as well as a 
duty to assist claimants by making reasonable efforts to get 
the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A 
and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. 
App. 183, 187 (2002).

Generally, the notice requirements of a claim have five 
elements: veteran status, existence of a disability, a 
connection between the veteran's service and the disability, 
degree of disability, and effective date of the disability.  
Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice 
must also: (1) inform the claimant about the information and 
evidence necessary to substantiate the claim; (2) inform the 
claimant about the information and evidence that VA will 
seek to provide; (3) inform the claimant about the 
information and evidence the claimant is expected to 
provide; and (4) request that the claimant provide any 
evidence in his possession that pertains to the claim.  See 
38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. 
Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA 
notice requirements).  38 C.F.R. § 3.159(b) has since been 
revised and the requirement that VA request that the 
claimant provide any evidence in his possession that 
pertains to the claim was removed from the regulation.

The current claim was filed on June 22, 2006.  A VCAA notice 
letter was dispatched to the Veteran in July 2006, prior to 
the February 2007 rating decision now on appeal.  This 
letter addressed the issue on appeal and satisfied the 
above-described mandates, as well as the requirements that 
the Veteran be informed of how VA calculates degree of 
disability and assigns an effective date for the disability, 
as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 
(2006).  As fully compliant notice preceded the initial 
adjudication of the Veteran's claims adjudicated herein, 
there is no timing of notice defect.  
  
VA also has a duty to assist the Veteran in obtaining 
evidence necessary to substantiate a claim.  38 U.S.C.A. § 
5103A(a) ("The Secretary shall make reasonable efforts to 
assist a claimant in obtaining evidence necessary to 
substantiate the . . . claim").  This duty includes 
assisting the Veteran in obtaining records and providing 
medical examinations or obtaining medical opinions when such 
are necessary to make a decision on the claim.  38 U.S.C.A. 
§ 5103A(b), (c), (d) (setting forth Secretary's various 
duties to claimant).

VA informed the Veteran of its duty to assist in obtaining 
records and supportive evidence with regard to the increased 
rating claim adjudicated herein.  As the claim stems from 
June 22, 2006, when the Veteran filed her claim for an 
increased rating for the service-connected low back pain at 
issue, the relevant time period and evidence that must be 
addressed in the adjudication of the claim encompasses the 
period from June 22, 2005 to the present, in order to allow 
the Board to consider the applicability of a staged rating.  
See 38 C.F.R. § 3.400(o)(2) (2012); Hart v. Mansfield, 21 
Vet. App. 505 (2007).  In this regard, the Board observes 
that private and VA clinical records for the period spanning 
2005 to 2013, including reports of VA medical examinations 
of the disabilities at issue, dated in July 2006, January 
2009 and April 2013, have been obtained and associated with 
the claims file, or are otherwise viewable on the Virtual VA 
electronic information database.  The Board has reviewed the 
aforementioned examination reports and notes that the 
Veteran's claims file was reviewed by the VA clinicians who 
performed them, and that these examiners provided adequate 
discussion of their clinical observations and rationales to 
support their individual findings and conclusions within the 
context of the Veteran's pertinent clinical history as 
contained within her claims file.  The examinations are 
therefore deemed adequate for rating purposes. Barr v. 
Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. 
Nicholson, 21 Vet. App. 120, 124 (2007).  

At this juncture, the Board notes that, in correspondence 
dated in April 2013 and June 2013, the Veteran challenges 
the validity of the April 2013 VA examination's findings, 
claiming that she was wheelchair-bound at the time of this 
examination due to a flare-up of low back pain and was 
unable to perform range-of-motion tests, and that the 
examiner who conducted the examination had re-used old 
range-of-motion test findings from the prior VA examination 
of 2009 and had furthermore displayed a decided bias against 
the Veteran's claim.  After reviewing the April 2013 VA 
examination report and the contemporaneous evidence of 
record, the Board is unable to find any such discrepancies, 
irregularities, or evidence of personal bias as alleged by 
the Veteran.  Specifically, neither the April 2013 VA 
orthopedic examination report nor the report of a 
concurrently performed VA cardiac examination indicates that 
the Veteran was wheelchair-bound or was otherwise using a 
wheelchair in any capacity during these examinations.  In 
fact, the examination report includes a box for the examiner 
to specifically check if the examination subject is using a 
wheelchair and the box is not checked to affirm the presence 
of this assistive ambulatory device.  

Also, the objective range-of-motion findings obtained on 
examination in April 2013 do not exactly match the results 
of the range-of-motion study performed during VA examination 
in January 2009, such that the Veteran's allegation that old 
clinical findings were re-used in lieu of conducting actual 
testing is not substantiated.  Specifically, thoracolumbar 
range of motion testing in January 2009 revealed forward 
flexion to 87 degrees, backward extension to 27 degrees, 
lateral flexion to 30 degrees (bilaterally), and lateral 
rotation to 30 degrees (bilaterally), limited by onset of 
pain following repetitive motion testing, as compared to 
dissimilar findings on thoracolumbar range of motion testing 
in April 2013, which revealed forward flexion to 70 degrees, 
backward extension to 20 degrees, lateral flexion to 20 
degrees (bilaterally), and lateral rotation to 30 degrees 
(bilaterally), limited by onset of pain following repetitive 
motion testing.   

Finally, the clinical record does not indicate the presence 
of a personal bias against the Veteran or the merits of her 
claim as the VA clinician who conducted the April 2013 
orthopedic examination also performed the concurrent April 
2013 cardiac examination, in which the clinician provided a 
favorable nexus opinion that ultimately resulted in the 
Veteran being awarded service connection and a 10 percent 
evaluation for mitral valve prolapse.  See May 2013 rating 
decision.  Thus, the Board concludes as a factual matter 
that, notwithstanding the Veteran's allegations of 
inaccuracy and bias, the April 2013 VA orthopedic 
examination was properly conducted, and its objective 
clinical findings are adequate for VA rating purposes.  A 
remand for corrective action is thus not warranted.  

The Veteran was provided with the opportunity to present 
oral testimony in support of her claim before the 
undersigned Veterans Law Judge in a September 2012 hearing.  
At the time of the hearing, the Veteran was accompanied by 
her representative and had the benefit of his advice and 
counsel.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), 
the United States Court of Appeals for Veterans Claims 
(Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires 
that the Decision Review Officer or Veterans Law Judge who 
chairs a hearing fulfill two duties to comply with the above 
regulation.  These duties consist of (1) explaining fully 
the issues and (2) discussing the submission of evidence 
that may have been overlooked.  Bryant v. Shinseki, 23 Vet. 
App. 488 (2010).  

At the September 2012 hearing, the presiding Veterans Law 
Judge's questions and the Veteran's oral testimony focused 
on the elements necessary to substantiate, inter alia, the 
Veteran's claim for an increased rating for her low back 
disability.  See transcript of September 13, 2012 hearing.  
Thus, the Board finds that the Veterans Law Judge presiding 
over the September 2012 hearing has substantially fulfilled 
her obligations as required under 38 C.F.R. § 3.103(c)(2).  
Bryant, supra.

Based on the foregoing, the Board finds that the VA 
fulfilled its VCAA duties to notify and to assist the 
Veteran in the evidentiary development of the claim decided 
herein, and thus no additional assistance or notification is 
required.  The Veteran has suffered no prejudice that would 
warrant a remand, and her procedural rights have not been 
abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  
The Board will therefore proceed with the adjudication of 
this appeal.

Increased ratings - generally

The Board has thoroughly reviewed all the evidence in the 
Veteran's claims file. Although the Board has an obligation 
to provide reasons and bases supporting this decision, there 
is no need to discuss, in detail, the evidence submitted by 
the appellant or on her behalf.  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 claimant).

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.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability ratings are determined by applying the criteria 
set forth in the VA's Schedule for Rating Disabilities, 
which is based on the average impairment of earning 
capacity.  Individual disabilities are assigned separate 
diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 
(2012).  The basis of disability evaluations is the ability 
of the body as a whole, or of the psyche, or of a system or 
organ of the body to function under the ordinary conditions 
of daily life including employment.  38 C.F.R. § 4.10 
(2012).  

In determining the severity of a disability, the Board is 
required to consider the potential application of various 
other provisions of the regulations governing VA benefits, 
whether or not they were raised by the Veteran, as well as 
the entire history of the Veteran's disability.  38 C.F.R. 
§§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589, 
595 (1991).

If the disability more closely approximates the criteria for 
the higher of two ratings, the higher rating will be 
assigned; otherwise, the lower rating is assigned.  
38 C.F.R. § 4.7 (2012).  It is not expected that all cases 
will show all the findings specified; however, findings 
sufficiently characteristic to identify the disease and the 
disability therefrom and coordination of rating with 
impairment of function will be expected in all instances.  
38 C.F.R. § 4.21 (2012).  

In deciding this appeal, the Board has considered whether 
separate ratings for different periods of time, based on the 
facts found, are warranted, a practice of assigning ratings 
referred to as "staging the ratings."  See Fenderson v. 
West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. 
App. 505 (2008).  Based on the June 22, 2006 date of VA's 
receipt of the Veteran's application to reopen her claim for 
a rating increase, the relevant temporal focus for the 
increased rating claim for a chronic low back disability is 
from June 22, 2005.  See 38 C.F.R. § 3.400 (2012).

Entitlement to an increased evaluation for low back pain, 
currently rated 
10 percent disabling.

The Veteran is service-connected for chronic low back pain, 
which her service treatment records indicate is the result 
of a traumatic straining injury incurred during active duty.  
The criteria for rating all spine disabilities are set forth 
in a General Rating Formula for Diseases and Injuries of the 
Spine provide that these disabilities are to be 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 rating when 
all disabilities are combined under 38 C.F.R. § 4.25.  

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 of these 
elements. In evaluating disabilities of the musculoskeletal 
system, it is necessary to consider, along with the 
schedular criteria, functional loss due to flare-ups of 
pain, fatigability, incoordination, pain on movement, and 
weakness.  DeLuca v. Brown, 8 Vet. App. 202  (1995). 

The functional loss may be due to absence of part, or all, 
of the necessary bones, joints and muscles, or associated 
innervations, or other 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 . Pain on movement, swelling, 
deformity or atrophy of disuse as well as instability of 
station, disturbance of locomotion, interference with 
sitting, standing and weight bearing are relevant 
considerations for determination of joint disabilities. 38 
C.F.R. § 4.45 . Painful, unstable, or misaligned joints due 
to a healed injury are entitled to at least the minimal 
compensable rating for the joint. 38 C.F.R. § 4.59 .

The pertinent part of the General Formula for rating 
disability of the thoracolumbar (to include the lumbosacral) 
spine is as follows:  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, assign a 100 percent rating.

Unfavorable ankylosis of the entire 
thoracolumbar spine, assign a 50 percent 
rating.

Forward flexion of the thoracolumbar 
spine 30 degrees or less; or, favorable 
ankylosis of the entire thoracolumbar 
spine, assign 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, assign 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; or, vertebral 
body fracture with loss of 50 percent or 
more of height, assign a 10 percent 
rating. 

Note (1): Evaluate any associated 
objective neurologic abnormalities. . . 
separately, under an appropriate 
diagnostic code.

Note (2): (See also Plate V.)  For VA 
compensation purposes, 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 thoracolumbar 
spine is 240 degrees. The normal ranges 
of motion for 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 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.

Formula for Rating Intervertebral Disc Syndrome (IVDS) Based 
on Incapacitating Episodes provides as follows:

With incapacitating episodes having a 
total duration of at least 6 weeks 
during the past 12 months, assignment of 
a 60 percent evaluation is warranted.

With incapacitating episodes having a 
total duration of at least 4 weeks but 
less than 6 weeks during the past 12 
months, assignment of a 40 percent 
evaluation is warranted.

With incapacitating episodes having a 
total duration of at least 2 weeks but 
less than 4 weeks during the past 12 
months, assignment of a 20 percent 
evaluation is warranted.

With incapacitating episodes having a 
total duration of at least one week but 
less than 2 weeks during the past 12 
months, assignment of a 10 percent 
evaluation is warranted.

Note (1): For purposes of evaluations 
under diagnostic code 5243 
[intervertebral disc syndrome], 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.

Note (2): If intervertebral disc 
syndrome is present in more than one 
spinal segment, provided that the 
effects in each spinal segment are 
clearly distinct, evaluate each segment 
on the basis of incapacitating episodes 
or under the General Rating Formula for 
Diseases and Injuries of the Spine, 
whichever method results in a higher 
evaluation for that segment.

38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).

The Veteran testified at the September 2012 hearing that her 
current low back problems included pain (at level 7 on most 
days and up to 10 on the pain scale) radiating down her 
right leg; numbness and loss of feeling in her legs; 
difficulty going up and down stairs; loss of balance; an 
abnormal gait requiring the use of a cane most of the time; 
difficulty with prolonged sitting standing and with lifting; 
"incapacitating episodes" at least once a month (although 
she noted that her doctor did not prescribe bed rest, but 
had told her that when she had these flare ups she should 
rest in bed); and difficulty performing activities of daily 
living.  She noted that these problems require her to take 
up to 20 pills a day just to deal with the pain and just to 
function.  

The entirety of the clinical evidence objectively 
demonstrates that, for the period from June 2005 to the 
present, the Veteran's service-connected low back disability 
(clinically diagnosed as degenerative joint disease of the 
lumbar spine with radiculopathy) is manifested by constant 
pain (subjectively described as being at least "5" on a 
scale of 1 to 10, with 10 being the worst pain), pain on 
use, and pain on motion, which necessitates treatment with 
prescribed oral non-narcotic and anti-inflammatory 
medications and occasional epidural steroid injections to 
partially relieve the symptoms.  The Veteran was prescribed 
a TENS unit that the records indicate she seldom uses.  She 
also occasionally ambulates with a cane during episodes of 
elevated symptomatology, but regular use of a cane was not 
indicated in the medical records.  Her gait was sometimes 
slow and deliberate, but was not altered as a result of her 
low back pain.  She reported radiating pain and 
radiculopathic symptoms down her right lower extremity and 
foot.  Medical imaging pertinent to the period reveals 
degenerative joint and disc pathology at the site of her 
lumbosacral spine, with mild disc bulging but no evidence of 
vertebral fracture.  A congenital hemivertebra anomaly at 
T12-L1 was noted as early as service, but current medical 
records indicate that this condition did not contribute to, 
or was otherwise aggravated by his service-connected low 
back disability.

Range of motion testing of the Veteran's thoracolumbar spine 
on examination in July 2006, January 2009 and April 2013 
collectively revealed limitation of thoracolumbar forward 
flexion to greater than 60 degrees but not greater than 85 
degrees, and a combined range of thoracolumbar motion of 
greater than 120 degrees but not greater than 235 degrees on 
repetitive motion testing (and factoring in functional loss 
due to pain).  Although at the July 2006 examination, the 
examiner noted that the Veteran was unable to perform 
repetitive motion testing, this notation does not appear to 
be an actual clinical finding of functional loss when 
considered with the entirety of the medical evidence, which 
clearly demonstrates on subsequent examinations in January 
2009 and April 2013 that the Veteran was capable of 
performing repetitive movement of her thoracolumbar spine, 
with the functional loss due to pain and pain on motion as 
noted.  Functional loss of the thoracolumbar spine was 
clinically attributed to pain on movement.  The limiting 
factor in all range of motion studies was onset of back pain 
at the point of maximum forward flexion, backward extension, 
lateral flexion, and lateral rotation, confirmed by 
repetitive motion testing.  No additional functional loss 
due to pain on movement or additional limitation of motion 
was demonstrated beyond that which was clinically noted.  
Muscle spasm was occasionally noted, but this was not shown 
to impair her gait.  Otherwise, her lower extremity 
musculature displayed 5/5 strength with no atrophy, 
bilaterally.  Although radiculopathy affecting her low back 
and right lower extremity was present, she was objectively 
determined to be 2+ and neurologically intact on 
neurosensory examination of her thoracolumbar spine and 
lower extremities and no actual incapacitating episodes of 
IVDS were clinically demonstrated during the entire pendency 
of the claim.  Furthermore, the medical examinations 
pertinent to the pendency of this claim do not objectively 
demonstrate the actual presence of any bladder or bowel 
incontinence or pathology associated with lumbosacral 
radiculopathy. 

The medical records and oral and written statements of the 
Veteran indicate that she was certified as an educator and 
that worked as a substitute schoolteacher but that she did 
not seek to work as a full-time schoolteacher on account of 
her back.  That said, the report of her April 2013 VA 
examination shows that the examining clinician determined 
that there was no impact by her service-connected low back 
disability on her capacity to obtain and retain work.

The Board has considered the totality of the evidence as it 
relates to the time period pertinent to the claim and finds 
no objective basis to assign an evaluation greater than 10 
percent for the Veteran's service-connected low back 
disability.  While acknowledging her subjective complaints 
of low back pain and the impact that this pain has on the 
functional capacity of her thoracolumbar spine, the clinical 
evidence nevertheless demonstrates that she does not have 
limitation of forward flexion of her thoracolumbar spine or 
combined limitation of thoracolumbar spine motion that meets 
the criteria for a 20 percent evaluation.  Although muscle 
spasm is occasionally present, it is not clinically 
demonstrated to be severe enough to produce an actual 
abnormal gait by itself or through guarding behavior.  The 
Veteran occasionally uses a cane to support herself when 
walking, but no abnormal gait was demonstrated on the 
examinations of record.       

There is also no credible evidence of limitation of motion 
or of pain on use or flare-ups that result in limitation of 
motion to the extent that the lumbosacral spine disability 
would warrant a higher rating.  38 C.F.R. §§ 4.40 , 4.45, 
4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  It is not 
disputed that the Veteran has limited motion of the 
thoracolumbar spine and that there is pain on motion and 
loss of function.  Yet, the Board finds that the 10 percent 
disability rating adequately compensates her for her painful 
motion and functional loss.  The VA medical examinations of 
2006 - 2013 all demonstrate limitation of forward flexion, 
backward extension, right and left lateral flexion and 
rotation that factored in the complaints of pain.  The VA 
examinations also described the Veteran as experiencing pain 
on motion and pain after performing at least three 
repetitions.  However, examinations do not demonstrate that 
there was additional loss of motion or weakness following 
those repetitions.  The provisions of 38 C.F.R. §§ 4.40 and 
4.45 have been considered, but they do not provide a basis 
for the assignment of a higher rating under these 
circumstances. 

Indeed, the Court clarified that there is a difference 
between pain that may exist in joint motion as opposed to 
pain that actually places additional limitation of the 
particular range of motion.  Mitchell v. Shinseki, 25 Vet. 
App. 32 (2011).  The Court specifically discounted the 
notion that the highest disability ratings are warranted 
where pain is merely evident as it would lead to potentially 
"absurd results."  Id. at 43 (limiting the scope and 
application of its prior holding in Lichtenfels v. 
Derwinski, 1 Vet. App. 484 (1991)).  It was stated that 38 
C.F.R. 
§ 4.40 provides that joint pain alone, and even pain 
throughout the entire range of motion, but without evidence 
of decreased functional ability, does not warrant the 
minimum compensable rating.  In this case, a higher rating 
based on guarding for anticipated pain without any 
quantifiable loss due to actual pain does not serve as basis 
for an increased rating.  The Veteran was already being 
adequately compensated for pain. 

The record also fails to show that IVDS associated with the 
radiculopathic component of the Veteran's disability has 
been manifested by incapacitating episodes.  VA treatment 
records and the VA examination are both negative for any 
findings of incapacitation due to IVDS.  Also, in the 
absence of any clinical demonstration of actual neurological 
deficit or impairment affecting either lower extremity 
attributable to the service-connected low back pain, 
assignment of a separate and individual rating on the basis 
of paralysis of the peripheral nerves of the lower 
extremities is not warranted.  Aside the Veteran's 
radiculopathy, the Board finds that there is no competent 
medical evidence of any associated objective neurologic 
abnormalities as a result of the lumbar strain to be 
separately evaluated under an appropriate diagnostic code.  
The VA examinations pertinent to the period at issue 
specifically note that there were no neurologic 
abnormalities such bowel or bladder pathology present.

Therefore, in view of the foregoing discussion, the 
Veteran's claim for an evaluation greater than 10 percent 
for service-connected low back pain must be denied.  Because 
the evidence in this case is not approximately balanced with 
respect to the merits of this claim, the benefit-of-the-
doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) (West 
2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).

Individual unemployability and extraschedular consideration.

To the extent that a claim for individual unemployability 
has been raised by the record, pursuant to Rice v. Shinseki, 
22 Vet. App. 447 (2009), the Board notes that the Veteran's 
low back disorder (rated 10 percent disabling) and mitral 
valve prolapse (rated 10 percent disabling) are her only 
service-connected disabilities and that they do not meet the 
minimal criteria for a total disability rating based on 
individual unemployability due to service-connected 
disabilities (TDIU) under 38 C.F.R. § 4.16(a) (2012), as 
neither have ever produced a combined rating under 38 C.F.R. 
§ 4.25 of more than 20 percent at any time during the 
pendency of the current claim.  Further, the Board finds 
that that the clinical evidence does not objectively 
demonstrate or otherwise indicate that the Veteran is unable 
to secure and follow a substantially gainful occupation by 
reason of her service-connected disabilities.  Accordingly, 
the Board concludes that no further discussion of 
entitlement to a TDIU is warranted at this time.

The Board further finds that there is no evidence of an 
exceptional or unusual disability picture associated with 
the Veteran's service-connected low back disability, with 
such related factors as marked interference with employment 
or frequent periods of hospitalization, as to render 
impractical the application of the regular schedular 
standards.  

A rating in excess of the assigned schedular evaluation for 
the Veteran's service-connected low back disability may be 
granted when it is demonstrated that the particular 
disability presents such an exceptional or unusual 
disability picture with such related factors as marked 
interference with employment or frequent periods of 
hospitalization as to render impractical the application of 
the regular schedular standards.  See 38 C.F.R. 
§ 3.321(b)(1) (2012).  To accord justice in an exceptional 
case where the schedular standards are found to be 
inadequate, the field station is authorized to refer the 
case to the Under Secretary for Benefits or the Director, 
Compensation and Pension Service, for assignment of an 
extraschedular evaluation commensurate with the average 
earning capacity impairment.  38 C.F.R. § 3.321(b)(1) 
(2012).  The Court has held that the Board is precluded by 
regulation from assigning an extraschedular rating under 38 
C.F.R. § 3.321(b)(1) (2012) in the first instance; however, 
the Board is not precluded from raising this question, and 
in fact is obligated to liberally read all documents and 
oral testimony of record and identify all potential theories 
of entitlement to a benefit under the law and regulations.  
See Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court 
further held that the Board must address referral under 38 
C.F.R. § 3.321(b)(1) only where circumstances are presented 
which the Director of VA's Compensation and Pension Service 
might consider exceptional or unusual.  See Shipwash v. 
Brown, 8 Vet. App. 218, 277 (1995).

Extraschedular consideration involves a three step analysis.  
Thun v. Peake, 22 Vet. App. 111 (2008).  First, the Board or 
the RO must determine whether the schedular rating criteria 
reasonably describe the Veteran's disability level and 
symptomatology.  Id. at 115.  If the schedular rating 
criteria do reasonably describe the Veteran's disability 
level and symptomatology, the assigned schedular evaluation 
is adequate, referral for extraschedular consideration is 
not required, and the analysis stops.  Id.  If the RO or the 
Board finds that the schedular evaluation does not 
contemplate the Veteran's level of disability and 
symptomatology, then either the RO or the Board must 
determine whether the Veteran's exceptional disability 
picture includes other related factors such as marked 
interference with employment and frequent periods of 
hospitalization.  Id. at 116.  If this is the case, then the 
RO or the Board must refer the matter to the Under Secretary 
for Benefits or the Director of the Compensation and Pension 
Service for the third step of the analysis, determining 
whether justice requires assignment of an extraschedular 
rating.  Id.

In the current appeal, the Board finds that there is no 
evidence that the Veteran's service-connected low back 
disability has presented such an unusual or exceptional 
disability picture at any time between June 2005 to the 
present, so as to require consideration of an extraschedular 
evaluation pursuant to the provisions of 38 C.F.R. § 
3.321(b) (2012).  Specifically, the evidence of record does 
not indicate the Veteran is frequently hospitalized for her 
service-connected low back disability.  The Veteran has 
reported that she is able to work part-time as a substitute 
teacher.  However, the clinical and testimonial evidence 
does not indicate marked interference with her ability to 
work at a desk in the capacity of an educator.  

The criteria of the applicable rating schedules are 
therefore deemed to adequately contemplate the Veteran's 
present level of impairment due to the low back disability 
at issue, as individually considered.  As such, the Board 
cannot concede that the Veteran's service-connected low back 
pain, standing by itself, causes marked interference with 
her employment capacity.  Higher ratings are available for 
the Veteran's low back disability, but for the reasons 
described in the above decision, higher ratings were denied 
in this case.  The clinical evidence and medical opinions 
fail to show that the disability picture created by the low 
back disability, in isolation, is of an exceptional or 
unusual nature.  Having reviewed the record with these 
mandates in mind, the Board finds that the schedular rating 
presently assigned to the low back disability adequately 
reflects the state of its impairment for the period to which 
it is applied, and that there is no evidentiary basis for 
referral of the case for extraschedular consideration with 
regard to this issue.
ORDER

An increased evaluation in excess of 10 percent for low back 
pain is denied.



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs