Citation Nr: 1329793 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 02-18 171 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to a disability rating in excess of 20 percent for chronic lumbar strain with degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and an April 2008 rating decision by the Department of Veterans Affairs VARO in New Orleans, Louisiana. (During the pendency of the current appeal, jurisdiction of the case was transferred to the New Orleans, Louisiana, RO due to the Veteran's change of residence in September 2003.) In the June 2001 decision, the RO increased the Veteran's disability evaluation for his service-connected lumbar strain from 10 percent to 20 percent, effective from March 1, 2001, and denied entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). In the April 2008 decision, the RO denied entitlement to service connection for lumbar spine DDD. In October 2008, the Board denied a rating greater than 20 percent for the Veteran's service-connected lumbar strain, and denied entitlement to TDIU. Thereafter, the Veteran filed an appeal to the Court. In July 2009, the Veteran's representative and VA's General Counsel filed a joint motion with the Court to vacate the Board's decision with respect to these two issues and remand those matters, which motion was granted by the Court the same month. The basis for the joint motion included the Board's failure to consider whether separate ratings were warranted for any neurologic abnormalities, to address the effect of the Veteran's flare-ups of disability, and to discuss the appropriateness of staged ratings. On remand from the Court, the Board, in a December 2009 decision, remanded the issues of entitlement to a TDIU and to a rating a rating in excess of 20 percent for the lumbar strain for further development and readjudication. In a rating decision dated in March 2012, the RO granted entitlement to TDIU, effective from February 27, 2001. The Veteran did not disagree with any aspect of that decision and that matter is no longer before the Board. The increased rating matter was again before the Board in February 2013, at which time it was remanded, in part, to provide the Veteran with another VA examination to determine the severity of his chronic lumbar strain, to include identifying any neurological symptoms related to that disability and fully describing the extent and severity of those symptoms. The Veteran was afforded a VA examination in April 2013 and in a May 2013 rating decision, the Veteran was awarded service connection for radiculopathy of the right and left lower extremities, each evaluated as 20 percent disabling, effective from May 29, 2007, and from April 30, 2013, respectively. The Veteran has not raised any issue with respect to the assignment of separate ratings for radiculopathy of the right and left lower extremities, to specifically include any disagreement with the disability ratings assigned or the effective dates of those assignments. Also before the Board in February 2013 was the issue of entitlement to service connection for DDD of the lumbar spine, to include as secondary to service-connected chronic lumbar strain, which issue was remanded for readjudication de novo in light of additional evidence submitted to the Board without a waiver of consideration by the agency of original jurisdiction (AOJ). In its May 2013 rating decision, the RO also awarded service connection for DDD of the lumbar spine, effective May 24, 2002. The RO stated that the disability was to be evaluated as part of the previously service-connected chronic lumbar strain, and the Veteran's disability was recharacterized as "lumbar strain, chronic, with a history of DDD, lumbar spine." The Veteran's 20 percent rating was continued under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237-5243. In light of the adjudicative actions of the RO, to include the award of service connection for DDD and the assignment of separate ratings for lumbar radiculopathy of the lower extremities, the Board finds that the increased rating issue presently before it encompasses only whether a higher rating is warranted for the Veteran's lumbar strain with DDD. This is so because, to date, it does not appear that the Veteran has disagreed with any aspect of the RO's May 2013 decision assigning separate ratings for radiculopathy of the lower extremities. Thus, the matter is not presently before the Board as part of the Veteran's increased rating claim. An appeal on the issue of entitlement to service connection for an acquired psychiatric disorder was also perfected by the Veteran in July 2010. However, in a March 2012 decision, the RO granted service connection for generalized anxiety disorder with panic and agoraphobia and a mood disorder due to a general medical condition, to include the assignment of a disability rating and an effective date, for that disorder. This represents a full grant of the benefit sought on appeal and, as such, it is no longer before the Board. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). FINDINGS OF FACT 1. Before May 16, 2006, the Veteran's chronic lumbar strain with DDD of the lumbar spine was manifested by painful motion and functional losses that equated to moderate limitation of motion of the lumbar spine, with forward flexion to no worse than 40 degrees. 2. From May 16, 2006, the Veteran's chronic lumbar strain with DDD of the lumbar spine has been manifested by pain and limitation of motion with forward flexion of the thoracolumbar spine to less than 30 degrees, with pain and functional losses tantamount to a severe limitation of motion; ankylosis of the thoracolumbar spine, pronounced intervertebral disc syndrome (IVDS), or incapacitating episodes in association with intervertebral disc syndrome (IVDS) have not been shown. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent prior to May 16, 2006, for chronic lumbar strain with DDD of the lumbar spine have not been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes (DCs) 5285-5295, 5235-5243 (2002 & 2013). 2. The criteria for a 40 percent rating for chronic lumbar strain with DDD of the lumbar spine have been met since May 16, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5292 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For increased rating claims, the VCAA requires only generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). As previously determined by the Board in its October 2008 decision, VA has complied with its duty to notify by way of letters dated in April 2001, November 2003, and May 2008. The Board points out that the October 2008 decision was appealed to the Court and that the parties filed a joint motion for remand, which was granted by the Court July 2009. Notably, the parties' joint motion included no reference to the Board's finding that VA had complied with its duty to notify, nor does the Court's order indicate vacatur of that portion of the Board's decision that found such compliance. The Veteran has also not disputed the contents of the VCAA notice in this case. Upon review of the record, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied and that the Veteran had a meaningful opportunity to participate in the development of his increased rating claim. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his increased rating claim. The evidence includes his VA treatment records, private medical evidence, records from the Social Security Administration, VA examination reports, and lay statements in support of his claim. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Further, the Veteran was afforded VA examinations of his spine in April 2001, May 2006, and May 2007. In seeking a joint motion from the Court, neither party raised any issue with regard to the adequacy of these examinations, nor did the joint motion suggest that those examinations were not adequate to evaluate the severity of the Veteran's disability during that timeframe. The Veteran was also afforded a VA examination in February 2010 and, in compliance with the Board's February 2013 remand, the Veteran was again examined in April 2013. Those examinations included a full examination of the Veteran's spine, to include range-of-motion and neurological testing. The examiners also documented the Veteran's symptomatology and discussed the functional impact of his lumbar spine disability. Notably, the April 2013 examination report and subsequent addendum show that the examiner also specifically considered the factors required by DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Board finds that the examination reports, along with the other lay and medical evidence of record, contain sufficient evidence by which to evaluate the Veteran's service-connected lumbar spine disability in the context of the pertinent regulations and throughout the claims period. Accordingly, the Board has properly assisted the Veteran by affording him an adequate VA examination in connection with the rating claims decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). II. Background In February 2001, the Veteran claimed entitlement to an increased evaluation for his service-connected lumbar strain. He was afforded a VA examination in April 2001, the report of which reveals his complaints of low back pain and muscle spasm, as well as radiating pain down his leg. Examination of the Veteran demonstrated tenderness to the paralumbar muscles with slight tightening of the muscles. Straight leg raising tests produced pain radiating into the back, bilaterally. Range of motion testing revealed flexion to 40 degrees; extension to 20 degrees; lateral flexion to 15 degrees, bilaterally; and lateral rotation to 10 degrees, bilaterally. There was no evidence of motor or sensory loss in the lower extremities and it was noted that the Veteran was able to stand on his toes with complaints of pain, but was unable to squat secondary to back pain in the back. Use of hydrocodone, a Transcutaneous Electrical Nerve Stimulation unit, and a heating pad for treatment of his back pain was also noted. The examiner diagnosed DDD, as demonstrated on x-ray, with radicular symptoms, and indicated that the Veteran would be unable to perform any activity that required extended standing, walking, lifting or climbing secondary to pain and fatigability. In a May 2002 statement, the Veteran reported having severe back pain all day, every day. In July 2003, he complained of back pain, along with numbness, burning, and tingling. He reported being unable to work or exercise. The Veteran was afforded another VA examination in May 2006. It was noted that the Veteran was ambulatory, that his posture was reasonably good, and that there was no scoliosis of the spine. There was a flattening of the lordotic curve of the lumbosacral spine. Examination of the spine revealed tenderness on tapping in the lumbosacral spine and pain on movement. Range of motion testing demonstrated flexion to 45 degrees with pain at 9 degrees; extension to 31 degrees, with pain at 25 degrees; left lateral flexion to 10 degrees, with pain at 9 degrees; right lateral flexion to 25 degrees, with pain at 16 degrees; left lateral rotation to 33 degrees, with pain at 20 degrees; and right lateral rotation to 40 degrees, with pain at 20 degrees. Repetitive testing was not done because the Veteran stated that it was too painful for him to perform repetitive movements. Sensory and motor examinations were essentially normal. Muscle strength in the lower extremities was rated as a 5/5, bilaterally. Deep tendon reflexes were normal, bilaterally, and rated as 2+. Straight leg raising on the right at an elevation of 16 degrees resulted in pain in the lumbosacral spine with further aggravation of pain by dorsiflexion of the right ankle. There were no vertical fractures. The examiner diagnosed lumbosacral strain with chronic pain and flare ups, right sciatica, limitation of motion, limitation of repetitive motion, without neurological defects in the lower extremities, but with positive Lasegue's sign, bilaterally. Functionally, the Veteran reported being able to walk for 15 to 20 minutes, or about a mile. He indicated the occasional use of a cane and stated that he experienced flare-ups of pain with prolonged sitting, standing, or walking. Flare-ups were noted to occur one to two times a week and to generally last for one to two days, but could be as long as eight days to two weeks. During a flare up, the Veteran reported extremely limited ability to function or move. The Veteran also reported being told by a physician at least four to five times in past year that he should go to bed and rest. He stated that the average duration of these incapacitating episodes were three to seven days. Another VA examination was conducted in May 2007. Symptoms associated with the Veteran's back disability were noted to include numbness paresthesias, weakness, fatigue, decreased motion, stiffness, spasms, and pain. The Veteran reported low back pain that radiated to the left calf and right buttock, as well as weekly flare ups of pain that would last for one to two weeks. Precipitating factors were noted to be pushing, pulling, twisting, or looking up, alleviated by rest and Lorcet. The Veteran indicated a 50 percent loss of motion during a flare up. The examiner noted intervertebral disc syndrome but did not state whether the Veteran had had any incapacitating episodes in the previous 12 months. Rather, the examiner noted that the Veteran had not worked since 1999. Physical examination of the thoracic sacrospinalis revealed evidence of spasm, atrophy, guarding, pain with motion, tenderness, and weakness. These symptoms were not, however, severe enough to result in an abnormal gait of spinal contour. There was no evidence of kyphosis, lordosis, or scoliosis, but lumbar flattening was noted. Sensory examination showed some impairment in the lower extremities. Range of motion testing demonstrated flexion to 50 degrees with pain at 20 degrees; extension to 10 degrees, with pain at 0 degrees; left lateral flexion to 10 degrees, with pain at 0 degrees; right lateral flexion to 10 degrees, with pain at 0 degrees; left lateral rotation to 20 degrees, with pain at 0 degrees; and right lateral rotation to 20 degrees, with pain at 0 degrees. Repetitive testing did not produce any further limitation of motion. Straight leg raising (Lasegue's sign) was negative and x-rays were unremarkable, showing no fracture, dislocations, or significant osteophytic spurring, nor any appreciable change from May 2006. The Veteran's back disability was noted to have a mild to moderate effect on all activities of daily living, save for sports, upon which it was noted to have a severe effect. The Veteran was again examined in February 2010, at which time it was noted that he was ambulatory without the use of any assistive device. Symptoms related to his back disability were noted to include numbness, paresthesias, weakness, fatigue, decreased motion, stiffness, spasms, and pain. The Veteran reported daily pain of moderate intensity that radiated to his right leg. He also indicated severe flare ups every one to two months, lasting for one to two weeks, during which had difficulty bending, experienced a "locking sensation," and had flexion decreased by 50 percent. Incapacitating episodes were not noted, but it was indicated that the Veteran could only walk one-quarter mile. Range of motion testing demonstrated flexion to 60 degrees; extension to 10 degrees; left lateral flexion to 10 degrees; right lateral flexion to 15 degrees; left lateral rotation to 20 degrees; and right lateral rotation to 20 degrees. Objective evidence of pain was noted, but it was not indicated at what point the Veteran began to experience pain. Repetitive testing did not further limit the Veteran's range of motion. Straight leg raising (Lasegue's sign) was positive on the right. The examiner diagnosed lumbar spine degenerative joint disease (DJD) with radiculopathy of the right lower extremity, associated with the Veteran's lumbar strain. In a July 2010 addendum, the examiner clarified that the Veteran's radiculopathy of the right lower extremity was related to his DJD of the spine and not a result of his lumbar strain. The Veteran was afforded another VA examination in April 2013. The Veteran reported back pain since service and stated that for five or six years he had experienced an "electric like" pain that radiated down both buttocks, or at times each one separately, into his thigh, leg and ankle. The Veteran indicated flare ups of pain once every two weeks, lasting for several days. Range of motion testing demonstrated flexion to 60 degrees with pain at 20 degrees; extension to 15 degrees, with pain at 5 degrees; left lateral flexion to 25 degrees, with pain at 10 degrees; right lateral flexion to 25 degrees, with pain at 10 degrees; left lateral rotation to 15 degrees, with pain at 5 degrees; and right lateral rotation to 25 degrees, with pain at 5 degrees. On repetitive testing, the Veteran had a 5 degree decrease in all ranges of motion and his functional loss was noted to be less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing and/or weightbearing. Guarding and/or muscle spasm was present, but did not result in an abnormal gait or spinal contour. There was no objective evidence of edema, deformity, atrophy of disuse, instability of station, or disturbance of locomotion, but occasional use of a cane was noted. No spinal abnormalities were observed and ankylosis was not present. Muscle and sensory examinations were essentially normal, save for the left great toe, which was noted to have reduced touch sensation. Straight leg raising test was negative bilaterally, but there was evidence of radiculopathy. Mild to moderate intermittent pain and mild paresthesias was noted to exist in the lower extremities, as well as mild numbness in the right lower extremity. The examiner also indicated involvement of the sciatic nerve. No other neurologic abnormalities were noted and the examiner found no evidence of intervertebral disc syndrome or incapacitating episodes. Overall, the examiner found that the Veteran's disability was manifested by weakened movement, excess fatigability, and pain. The examiner estimated that flare-ups would result in the Veteran being fairly well immobilized for several days and in need of rest due to pain resulting in limitation of motion. Regarding the Veteran's radicular symptoms, the examiner noted that lumbar strain often resulted in lumbar radiculopathy due to postural changes on account of pain. The examiner stated that the Veteran's neurological symptoms were moderate in severity. In an addendum completed later that month, the VA examiner expressed her opinion that on repeated motion over time, it was likely that the Veteran would experience further limitation of motion of the lumbosacral spine secondary to pain, weakness, and fatigue, such that his flexion would be estimated to be to 30 degrees, extension to 10 degrees, and lateral flexion and extension each to 10 degrees, bilaterally. III. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For increased rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Further, "[w]here 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 (2013). The instant matter stems from an increased rating claim received on March 1, 2001. The record shows that since March 1, 2001, the Veteran's service-connected lumbar spine disability has been evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, DCs 5295, 5295-5292, 5237, and 5237-5243. As noted in the introduction, the Veteran is also in receipt of disability compensation for lumbar radiculopathy of the right lower extremity associated with lumbar strain since May 29, 2007, and for lumbar radiculopathy of the left lower extremity associated with lumbar strain since April 30, 2013, which disabilities are each evaluated as 20 percent disabling under 38 C.F.R. § 4.124a, DC 8520. At the outset, the Board notes that during the pendency of the Veteran's claim for a higher rating for his service-connected lumbar spine disability, the regulations pertaining to evaluation of disabilities of the spine were amended twice. See 67 Fed. Reg. 54345-54349 (Aug. 22, 2002) (effective September 23, 2002); 68 Fed. Reg. 51454-51456 (Aug. 27, 2003) (effective September 26, 2003). The first change was to DC 5293 regarding the criteria for rating IVDS. The second change, made effective September 26, 2003, renumbered all of the spine DCs, and provided for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine. Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent expressed intent to the contrary. Accordingly, the Board is generally required to review both the pre- and post-September 26, 2003, rating criteria to determine the proper evaluation for the Veteran's disability. If it is determined that the new criteria is more favorable, the new criteria may not be applied for the period prior to the revision. See VAOPGCPREC 3-2000 (April 10, 2000). (As limited by 38 U.S.C.A. § 5110(g) (West 2002), the effective date of any increase assigned under the amended version of the rating schedule can be no earlier than the effective date of the regulation.) Upon review of the record, and as will be discussed in further detail below, the Board finds that the Veteran's lumbar spine disability has increased in severity during the claims period such that staged ratings are appropriate in this case. Specifically, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, a 40 percent rating, but no more, is warranted from the date of the May 2006 VA examination. The evidence fails, however, to establish entitlement to a rating in excess of 20 percent prior to that time. Notably, the relevant evidence of record dated prior to May 16, 2006, consists of the April 2001 VA examination report and the Veteran's assertions of experiencing severe back pain. Turning first to whether a rating in excess of 20 percent is warranted under the rating criteria in effect prior to September 23, 2002, DC 5292 provided for a 20 percent rating when there was moderate limitation of motion of the lumbar spine and a 40 percent rating for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, DC 5292 (2001). Under DC 5295, a 20 percent disability rating was warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, and a 40 percent disability rating was warranted for severe lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2001). The Board notes that the words moderate, marked, and severe as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2013). Notably, the use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). The Board also notes that, when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss a veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). DeLuca, supra. Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. Consideration must also be given to functional loss on use or due to flare-ups. Id. Overall, the Board concludes that the findings contained in the April 2001 VA examination report and the Veteran's lay statements regarding pain and associated symptomatology do not support a rating greater than 20 percent under DC 5292 or 5292 in effect prior to September 23, 2002. Notably, in April 2001, the Veteran was able to achieve 40 degrees of flexion; 20 degrees of extension; 15 degrees of lateral flexion, bilaterally; and 10 degrees of lateral rotation, bilaterally. While the Veteran experienced some decreased motion in all ranges, the Board finds that, even taking into account factors such as pain, weakness, and fatigability, and in consideration of the benefit of the doubt, at no point prior to May 2006 can the Veteran's limitation of motion be considered as anything more than moderate under DC 5292. In finding that the Veteran's limitation of motion is not "severe," the Board finds especially probative the fact that, prior to September 26, 2003, favorable ankylosis of the lumbar spine warranted only a 40 percent disability rating under DC 5289. "Ankylosis is defined as the '[s]tiffening 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), quoting Stedman's Medical Dictionary 87 (25th ed. 1990). The Board does not find the Veteran's limitation of motion outlined above to be analogous to favorable ankylosis, as he has mobility in all directions. Further, regardless of the point at which the Veteran began to experience pain, he was still able to achieve flexion to 40 degrees. As the Court has affirmed, pain itself does not constitute functional loss and "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,' 38 C.F.R. § 4.40, in order to constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Thus, an evaluation in excess of the minimum compensable rating on account of pain must be based on demonstrated functional impairment. Given the Veteran's ability to achieve flexion to 40 degrees, the Board finds that his pain did not result in a functional loss equivalent to that which would warrant a rating greater than 20 percent under DC 5292. Similarly, the evidence dated prior to May 2006 fails to demonstrate entitlement to a rating greater than 20 percent under DC 5295. There is no evidence of listing of the whole spine to opposite side, positive Goldthwaite's sign, osteoarthritic changes, narrowing or irregularity of joint space, or abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2001). Without evidence of abnormal mobility on forced motion, the Veteran's limitation of flexion alone cannot support a higher rating under DC 5295. Id. The Board has also considered whether any other applicable DC in effect prior to September 23, 2002, may have entitled the Veteran to a rating greater than 20 percent for his service-connected lumbar strain with DDD of the lumbar spine, but finds that it does not. The evidence fails to contain a diagnosis of a fracture of his vertebra or show that the Veteran had a complete bony fixation of the spine or ankylosis of any portion of his spine. Therefore, 38 C.F.R. § 4.71a, DCs 5285-5289 (2001) are not for application. (These DCs are also not for application at any point during the claims period as the evidence has not at any point demonstrated a vertebral fracture, a complete bony fixation of the spine, or ankylosis of any portion of his spine.) Regarding whether IVDS warrants a higher rating under DC 5293, the April 2001 VA examiner indicated x-ray evidence of DDD and lumbar spine DDD is now part of the Veteran's lumbar spine disability, effective May 24, 2002. However, the Veteran's presentation does not satisfy or more nearly approximate the criteria for a rating in excess of 20 percent under that DC. Specifically, a 20 percent rating was warranted for moderate IVDS with recurring attacks. 38 C.F.R. § 4.71a, DCs 5293 (2001). A 40 percent rating required severe IVDS with recurring attacks and little intermittent relief. Id. A 60 percent rating required pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. Id. In April 2001, the Veteran complained of radiating pain with increased activity, such as bending, stooping, or lifting. He also complained of numbness and tingling in July 2003, but gave no indication as to the severity or consistency of these symptoms. There was no evidence of motor or sensory loss in the lower extremities on examination. The Board finds that, without evidence suggesting that the Veteran had only intermittent relief from symptoms, it cannot be said that any IVDS was severe. Rather, the evidence seems to indicate that the Veteran's pain and neurological symptoms were brought on by certain activities, such that symptoms were alleviated when those activities were avoided. The Board also notes that the Veteran's radiculopathy was not affirmatively diagnosed until 2007 and that it has been deemed to be no more than moderate in degree. Accordingly, the Board finds no basis upon which to award a rating greater than 20 percent under DC 5293. The Board also finds no basis upon which to award a rating greater than 20 percent prior to May 2006 under revised DC 5293, which, effective September 23, 2002, provided that IVDS was to be evaluated either on the total duration of incapacitating episodes over the past 12 months under DC 5293, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. 38 C.F.R. 4.71a, DC 5293 (2003). Note 1 of that DC provided that, for purposes of evaluations under DC 5293, an incapacitating episode was a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" meant orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that were present constantly, or nearly so. Id. at Note 1. As defined by regulation, an incapacitating episode requires bed rest prescribed by a physician and treatment by a physician. In this regard, there is no evidence, to include the Veteran's own lay statements, dated prior to May 2006 that suggests that the Veteran's disability required bed rest prescribed by a physician. Although the Veteran indicated during his May 2006 VA examination that he had been told by a physician at least four to five times in past year that he should go to bed and rest, a review of the VA treatment records contain no evidence that the Veteran was prescribed bed rest and the Veteran has not indicated that there are outstanding relevant treatment records. The Board concludes that had the Veteran been experiencing a flare-up of back symptomatology severe enough that a physician would recommend bed rest, a notation of such would have been placed in his medical records. As the Veteran's medical records contain no evidence to support the Veteran's contention in this regard, the Board finds that his assertion of having experienced incapacitating episodes due to low back symptomatology is not credible. Accordingly, the evidence fails to support a rating based on total duration of incapacitating episodes over the past 12 months under DC 5293. The Board also finds that the Veteran is not entitled to a rating greater than 20 percent prior to May 2006 based on the combination of separate evaluations of the chronic orthopedic and neurological manifestations of his service-connected lumbar spine disability. In this regard, Note 2 of DC 5293 provided that when evaluating on the basis of chronic manifestation, orthopedic disabilities were to be evaluated using the criteria for the most appropriate diagnostic code or code. Neurologic manifestations were to be evaluated separately using the evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. at Note (2). In terms of orthopedic manifestations, the evidence shows that the Veteran's service-connected back disability resulted primarily in a limitation of motion, which, as discussed above warrants no more than a 20 percent rating. As to whether the Veteran experienced neurological manifestations, despite the Veteran's complaints of radiating pain and numbness, neurological manifestations of his lumbar spine disability were not objectively identified until 2007. Although the April 2001 VA examination indicated DDD with radicular symptoms, no specific nerve root was identified nor was radiculopathy or any other neurological disorder diagnosed. Further, the evidence of record dated prior to May 2006 does not suggest that the Veteran's radicular symptoms were present constantly, or nearly so, as required by Note 1 of DC 5293. Accordingly, given the absence of chronic neurological manifestations, as defined by regulation, the Board can find no basis to assign a rating greater than 20 percent under the version of DC 5293 in effect from September 23, 2002, to September 26, 2003. Effective on September 26, 2003, DC 5293 was renumbered and revised at 38 C.F.R. § 4.71a, DC 5243. Under that DC, the criteria now applicable to rating IVDS provides that intervertebral disc syndrome is to be evaluated either under the General Rating Formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, which became effective on September 23, 2002. As discussed above, prior to May 2006 there was no credible evidence of physician prescribed bed rest. Accordingly, there is no basis upon which to assign a rating based on incapacitating episodes Under the General Rating Formula, with respect to the thoracolumbar spine, a 20 percent evaluation is assigned for limitation of forward flexion greater than 30 degrees but not greater than 60 degrees, or a combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is for application when there is forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for application when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is for application when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DCs 5235-5243. Note 1 provides that associated objective abnormalities are to be evaluated separately under an appropriate diagnostic code. Id. at Note (1). In consideration of the evidence of record, the Board finds that no more than a 20 percent rating is warranted prior to May 2006 under the General Rating Formula for rating disabilities of the spine. Range of motion testing conducted as part of the April 2001 VA examination revealed flexion to 40 degrees, which warrants a 20 percent rating under the General Rating Formula. It was not indicated that his motion was painful, although he reported pain increased with bending. As discussed above, an evaluation in excess of the minimum compensable rating on account of pain must be based on demonstrated functional impairment. See Mitchell, supra. Although the Veteran was unable to squat secondary to back pain and the examiner indicated that the Veteran would be unable to perform any activity that required extended standing, walking, lifting or climbing secondary to pain and fatigability, overall the Board finds that even taking into account the DeLuca factors a rating greater than 20 percent was not warranted. This is so because the Veteran had mobility in all directions and his flexion was not limited to at least 30 degrees even with consideration of functional losses. The Board also does not consider the Veteran's functional losses to be akin to favorable ankylosis of the entire thoracolumbar spine, which warrants a 40 percent rating under the General Rating Formula for rating disabilities of the spine. Although the Board has determined that the evidence of record fails to support a rating in excess of 20 percent prior to May 2006, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, a 40 percent rating is warranted as of the May 16, 2006, VA examination, the date upon which the evidence first demonstrates that he is entitled to a higher rating. In this regard, the Board finds that the higher rating is warranted based on severe limitation of motion under that version of DC 5292 in effect prior to September 26, 2003. Although the range of motion findings consistently show flexion to greater than 30 degrees, pain was noted to begin at anywhere from 9 to 20 degrees. The May 2006 VA examiner also noted flare-ups of pain, during which the Veteran reported severely limited motion, and limitation of repetitive motion, and the Veteran indicated the use of several medications daily to alleviate his pain. The Veteran also reported limitation of daily activities on account of pain and other functional losses. Overall, the Board finds that, taking into consideration the DeLuca factors, the severity of the Veteran's flare-ups, the point at which pain sets, and in consideration of the benefit of the doubt, the evidence shows that the Veteran's lumbar spine disability has been manifested by symptomatology tantamount to a severe limitation of motion under the pre-September 2003 version of DC 5292 as of May 16, 2006. Accordingly, a 40 percent rating under that version of DC 5292 in effect prior to September 26, 2003, is granted from March 1, 2001. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, DC 5292. The Board has considered whether the Veteran may be entitled to a rating greater than 40 percent at any point since May 16, 2006, under any applicable diagnostic criteria but finds that he is not. As to the rating criteria in effect prior to September 26, 2003, a 40 percent rating was the highest rating available under DCs 5293 and 5295. Although a 60 percent rating was potentially available under DC 5293, the rating criteria required pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. 4.71a, DC 5293 (2001). Sensory and motor examinations and deep tendon reflexes were normal in May 2006. Ankle jerks were also present in May 2007, February 2010, and April 2013. Although the Veteran has consistently complained of radiating pain, the medical evidence has not consistently demonstrated IVDS and radiculopathy was not diagnosed until 2007, which has been determined to be no more than moderate in degree of severity. In consideration of this evidence, the Board finds no basis upon which to award a rating greater than 40 percent under DC 5293 because the Veteran has not demonstrated pronounced IVDS as defined by regulation. As noted above, effective September 23, 2002, IVDS was to be evaluated either on incapacitating episodes, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. 38 C.F.R. 4.71a, DC 5293 (2003). As credible evidence of incapacitating episodes, as defined by regulation, has not been presented, the Board finds no basis upon which to rate the Veteran under that diagnostic criteria. Further, the Veteran is in receipt of separate evaluations for radiculopathy of the lower extremities, bilaterally, and, by virtue of the Board's assignment of a 40 percent rating as of May 2006, is in receipt of the highest rating available under the pre-September 2003 diagnostic criteria for limitation of motion, which is the orthopedic manifestation of his disability. Thus, the Veteran's orthopedic and neurologic manifestations of his disability have been accounted for by his present ratings. The Board also finds that a rating greater than 40 percent is not warranted under the General Rating Formula for rating disabilities of the spine, as there must be evidence of unfavorable ankylosis of the entire thoracolumbar spine or the entire spine for a 50 or 100 percent rating to be warranted under that diagnostic criteria. See 38 C.F.R. § 4.71a, DCs 5235-5243. In the instant case, ankylosis has not been demonstrated. Even taking into account such factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59, the Veteran has mobility in all relevant ranges of motion. Indeed, the range-of-motion findings dated since May 2006 reveal that the Veteran is able to achieve actual flexion to a degree greater than that which would be considered 40 percent disabling. Although the April 2013 VA examiner estimated that repetitive use would result in limitation of flexion to 30 degrees, repetitive testing on examination resulted in only a 5 degree decrease in flexion. Further, while the April 2013 examiner indicated that flare-ups would likely leave the Veteran fairly well immobilized for a several days, by the Veteran's own account, his flare ups were occurring less frequently at the time of that examination than earlier during the claims period. Moreover, in February 2010, the Veteran reported difficulty bending during a flare up but denied incapacitating episodes, which would suggest that his flare ups were not so severe as to leave him immobile. As such, the Board finds that the Veteran's current rating of 40 percent adequately compensates him for any additional functional loss based on the factors as described in 38 C.F.R. §§ 4.40 , 4.45, 4.59. See DeLuca, supra. Without evidence of actual ankylosis or motion so limited by pain or weakness that it mirrors ankylosis, the Board finds no basis upon which to assign a rating greater than currently assigned rating of 40 percent under the General Rating Formula for rating disabilities of the spine. Further, as discussed above, because there is no credible evidence of physician prescribed bed rest, the Veteran cannot be rated based on incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5243, Note (1). The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. In this regard, the Board finds that the symptoms of the Veteran's lumbar spine disability are not so exceptional or unusual such that the schedular criteria does adequately compensate for them. Here, the Veteran's main symptoms have been pain, flare-ups, fatigue, decreased motion, and radiculopathy. The Board does not find that the Veteran's symptoms take his case outside the norm such that referral for consideration of a higher evaluation on an extraschedular basis is required. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); 38 C.F.R § 3.321(b)(1) (2013). Indeed, the rating schedule compensates for limited motion, radicular symptoms, and functional loss due to symptoms of pain and fatigue and during flare ups. The Board again notes that the Veteran has been awarded TDIU, effective from February 27, 2001. As such, the Board has no reason to address whether TDIU is warranted as part of the matter currently before it. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that the issue of entitlement to TDIU is part of an increased rating claim when that issue is raised by the record). ORDER Entitlement to a disability evaluation in excess of 20 percent for chronic lumbar strain with DDD of the lumbar spine prior to May 16, 2006, is denied. Entitlement to a disability of 40 percent for chronic lumbar strain with DDD of the lumbar spine is granted as of May 16, 2006, subject to the laws and regulations governing the payment of monetary benefits. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs