Citation Nr: 1329935 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-40 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for status post thoracolumbar strain, herniated nucleus pulposus at the L4-L5 level, with residual pain and limitation of motion. 2. Entitlement to a total rating based on individual unemployability (TDIU rating), on an extraschedular basis. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to May 1985. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in relevant part, increased the Veteran's disability rating for his service-connected lumbar spine disability to 20 percent, effective December 6, 2007. The Veteran then perfected a timely appeal regarding the 20 percent disability rating assigned. The RO additionally denied the Veteran's TDIU claim in the July 2008 rating decision; however the Veteran did not appeal that determination. Notwithstanding such, the Board, in its September 2012 remand, found that a TDIU claim had been raised by the record and that such issue was part of the claim for an increased rating for the service-connected back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In January 2010, the Veteran was afforded his requested hearing at the RO before a Decision Review Officer (DRO). A copy of the hearing transcript has been associated with the claims file. In September 2012, the Board remanded both claims to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision and remand, along with his paper claims file. The issue of entitlement to a TDIU, on an extraschedular basis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. FINDING OF FACT Throughout the appeal, the Veteran's status post thoracolumbar strain, herniated nucleus pulposus at the L4-L5 level, with residual pain and limitation of motion, has been manifested by forward flexion limited, at worst, to 45 degrees, has not been ankylosed, and has not been productive of incapacitating episodes, even when considering the Veteran's pain and functional impairment on use. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the status post thoracolumbar strain, herniated nucleus pulposus at the L4-L5 level, with residual pain and limitation of motion, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5237, 5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 Veteran or on his 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 Veteran 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 Veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the initial adjudication of the Veteran's increased rating claim, a letter dated in March 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The United States Court of Appeals for Veterans Claims (Court) held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that, 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This action was accomplished by the March 2009 notice letter to the Veteran regarding his increased rating claim. Although this letter was not sent prior to the initial adjudication of the Veteran's claim, this was not prejudicial to him, since the claim was readjudicated in the September 2009 Statement of the Case and the February 2012 and February 2013 Supplemental Statements of the Case (SSOCs). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2013) (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His STRs and post-service VA and private treatment records have been obtained. Regarding the Veteran's Social Security Administration (SSA) records, with the exception of a few records, the majority of these records could not be located. In June 2008, the RO made a Formal Finding regarding the unavailability of these records. The Veteran was notified of the unavailability of these records and provided the opportunity to submit his own copies (which he did not) in June 2008. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Additionally, the Veteran has been afforded multiple VA examinations during the appeal period. The most recent examination report, dated November 2012, contain all findings needed to properly evaluate his disability. 38 C.F.R. § 4.2. As addressed in the REMAND below, the examination report is not adequate as it address pertains to the issue of entitlement to TDIU. However, the examination report is sufficient for evaluating the increased rating claim on appeal. Furthermore, the Board finds no credible lay or medical evidence demonstrating or alleging an increased severity of thoracolumbar spine disability since the November 2012 VA examination. Thus, there is no duty to provide further medical examination on the claim. See VAOPGCPREC 11-95 (Apr. 7, 1995). The Board is also satisfied as to substantial compliance with its September 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The remand included obtaining a copy of the Veteran's DRO hearing transcript. The transcript was obtained by the AMC and associated with the Veteran's claims file. The remand also included sending the Veteran a letter in October 2012 letter, and providing him the appropriate release form (VA Form 21-4142) to obtain his confidential records from his private physician. The identified private treatment records, and recent VA treatment records, were then obtained and associated with the claims file. This also included scheduling the Veteran for another VA examination and medical opinion, which he had in November 2012. The Board finds that the VA examination report addresses all pertinent questions necessary to adjudicate the increased rating claim. Finally, the remand directed the AMC to readjudicate the claim, which was accomplished in the February 2013 SSOC. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Increased Rating Claim The Veteran seeks a higher disability rating for his service-connected thoracolumbar spine disability. He describes severe low back pain which interferes with his ability to function and requires the constant use of medications such as methadone and oxycodone. He reports intermittent flare-ups of lower back pain with activities such as prolonged walking and sitting. The Veteran and his partner describe falling episodes which they have attributed to the low back disability, and report that the low back disability causes the Veteran depression and interferes with his sex life. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Service connection was originally granted for the Veteran's lumbar spine disability in an April 2006 rating decision, and a 10 percent disability rating was assigned, effective February 14, 2005. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed the instant increased disability rating claim in December 2007, contending that his disability had become more severe. Subsequently, in the July 2008 rating decision, the RO increased the Veteran's disability rating to 20 percent, effective December 6, 2007, the date of his claim. The Veteran has appealed that determination and continues to assert that his service-connected lumbar spine disability is entitled to a higher disability rating. The Veteran is currently rated under 38 C.F.R. § 4.71a, DC 5237. DC 5237 refers to the General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula provides a 20 percent disability 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. 38 C.F.R. § 4.71a, DC 5237. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, DC 5237. These criteria apply 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. 38 C.F.R. § 4.71a, DC 5237. Note (2) of the General Rating Formula provides that, 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. 38 C.F.R. § 4.71a, DC 5237. Note (5) of the General Rating Formula provides that, 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; dyspneea 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. 38 C.F.R. § 4.71a, DC 5237. Further, the provisions of 38 C.F.R. § 4.40 state that a disability affecting the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, at 592 (1991). Instead, in Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his service-connected thoracolumbar spine disability. Here, there is no credible lay or medical evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, to warrant a higher disability rating of 40 percent. 38 C.F.R. § 4.71a, DC 5237. Specifically, at a June 2008 VA spine examination, the Veteran reported stiffness and spasms in his lower back. An examination of the Veteran's spine revealed tenderness. The Veteran's ranges of motion of the lumbar spine were: forward flexion limited to 45 degrees (normal is 90 degrees) with pain and muscle spasm; extension limited to 15 degrees (normal is 0 degrees) with pain and muscle spasm; left lateral flexion limited to 25 degrees (normal is 30 degrees) with pain; right lateral flexion limited to 25 degrees (normal is 30 degrees) with pain; left lateral rotation limited to 25 degrees (normal is 30 degrees) with pain; and, right lateral rotation limited to 25 degrees (normal is 30 degrees) with pain. The Veteran's spine was not ankylosed at the examination. The Veteran was afforded another VA spine examination in December 2010. At the examination, the Veteran's ranges of motion of the lumbar spine were: forward flexion limited to 45 degrees (normal is 90 degrees); extension limited to 20 degrees (normal is 0 degrees); left lateral flexion limited to 20 degrees (normal is 30 degrees); right lateral flexion limited to 30 degrees (normal is 30 degrees); left lateral rotation limited to 20 degrees (normal is 30 degrees); and, right lateral rotation limited to 20 degrees (normal is 30 degrees). The Veteran had objective evidence of pain on active ranges of motion. The examiner found that the Veteran's spine was not ankylosed. In accordance with the Board's remand, the Veteran was provided another VA spine examination in November 2012. Upon examination, the Veteran had tenderness of the spine. The Veteran's ranges of motion of the lumbar spine were: forward flexion limited to 60 degrees (normal is 90 degrees) with objective evidence of pain beginning at 60 degrees; extension limited to 20 degrees (normal is 0 degrees) with objective evidence of pain beginning at 20 degrees; left lateral flexion limited to 30 degrees (normal is 30 degrees) with no objective evidence of painful motion; right lateral flexion limited to 30 degrees (normal is 30 degrees) with no objective evidence of painful motion; left lateral rotation limited to 30 degrees (normal is 30 degrees) with no objective evidence of painful motion; and, right lateral rotation limited to 30 degrees (normal is 30 degrees) with no objective evidence of painful motion. The examiner found that the Veteran's spine was not ankylosed. The VA and private treatment records do not provide contrary evidence. Rather, the records pertinent to the appeal period only describe limitation of thoracolumbar spine motion without any description of motion limitation in terms of degrees. An August 2005 treatment record generally described forward flexion "with fingertips to the knees." The Veteran himself has not specifically described forward flexion limited to 30 degrees or less, or ankylosis. Accordingly, the Veteran's service-connected lumbar spine disability has not displayed forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine - the requirements for the next higher disability rating of 40 percent. 38 C.F.R. § 4.71a, DC 5237. In forming this decision, the Board has considered the Veteran's complaints of pain in the lumbar spine. However, the credible lay and objective medical evidence does not show that his symptoms result in additional functional limitation to the extent that the Veteran's disability warrants a higher disability rating under DC 5237. 38 C.F.R. § 4.71a. Specifically, at the June 2008 VA spine examination, the Veteran described flare-ups of the lumbar spine on lifting, repeated bending, or prolonged walking or standing. The Veteran stated that his lumbar spine disability limited some of his daily activities due to his restrictions on prolonged walking, repeated bending, and heavy lifting. Following a physical examination of the Veteran, the VA examiner determined that repetitive use with three repetitions of the lumbar spine showed no additional loss of motion by pain, fatigue, weakness, or lack of endurance. A review of the December 2010 VA spine examination report reveals that the VA examiner specifically noted that the symptoms associated with the Veteran's service-connected lumbar spine disability historically included stiffness, spasms and pain. The examiner reported the Veteran experienced pain on active motion and pain following repetitive motion. The examiner found that there were no additional limitations after three repetitions of range of motion of the lumbar spine. The examiner did not, however, provide any indication as to whether the Veteran was currently experiencing weakened movement, excess fatigability, or incoordination, associated with his lumbar spine disability. More importantly, the examiner did not indicate whether there was any additional functional impairment, including additional loss of range of motion as a consequence of pain, painful motion, weakness, fatigability, incoordination, or during flare ups. Accordingly, the Board remanded the claim for another VA examination and medical opinion to be obtained. The Veteran was provided the requested VA spine examination in November 2012. Following a physical examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran did not have any additional limitation in ranges of motion of the lumbar spine following repetitive-use testing. The examiner did find that the Veteran had functional loss and/or functional impairment of the lumbar spine after repetitive use due to less movement than normal and pain on movement. At the examination, the Veteran also reported periodic flare-ups of the lumbar spine following prolonged sitting and/or prolonged walking. These flare-ups impacted the function of the lumbar spine because use increased the pain. The Board is also cognizant that the Veteran experiences flare-ups of pain and reports functional limitations. The Veteran's description of functional impairments is inconsistent and reliable. The Veteran has described an inability to work or to walk or stand for prolonged periods of time. He reports difficulty with using stairs and, at times, having to sit down in a supermarket check-out line due to severe pain. He uses a cane to assist in ambulation, and describes sleeping difficulty due to pain. The VA treatment records reflect that the Veteran, at one point, was prescribed a combination of methadone and oxycodone due to his spinal pain. However, VA discontinued this treatment as toxicology tests revealed that the Veteran was not taking his methadone as prescribed and that he tested positive for cocaine and marijuana use. The private treatment records include descriptions of the Veteran being "fairly," "relatively," and "very" active performing activities such as yardwork, fishing, gardening, working on automobiles, arrowhead hunting, exercising 5 to 7 times a week, and doing odd jobs/part-time work while taking methadone and oxycodone. In the opinion of the Board, the Veteran's painful limitation of motion and additional functional impairment, including during flare-ups, meets the impairment contemplated with a 20 percent rating throughout the entire appeal period and does not more nearly approximate functional impairment commensurate with a higher 40 percent rating. To the extent that the Veteran and his partner appear to report greater functional impairments, the Veteran has reported inconsistent degrees of impairment and the Board places greater probative weight to the findings of VA examiners who have physically examined the Veteran for the effects of functional impairment on use. Accordingly, the evidence of record does not support the assignment of a higher disability rating based on additional functional limitation following repetitive use or flare-ups of the thoracolumbar spine. The Board notes that the Veteran also has a diagnosis of degenerative disc disease of the lumbar spine (see VA examination report dated in December 2010). Thus, the Veteran must also be rated under 38 C.F.R. § 4.71a, DC 5243. DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine (as addressed above) or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to DC 5243 provides that, for purposes of ratings under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. While there are references in the clinical records to the presence of low back pain, there are no references to the presence of incapacitating episodes for a total duration of 4 weeks for any 12-month period. The Veteran denied this symptomatology at the VA examinations, and no health care provider is on record as prescribing bed rest to treat the Veteran's low back. Hence, the preponderance of the credible lay or medical evidence establishes that the Veteran has not experienced incapacitating episodes of IVDS having a total duration of at least 4 weeks during any 12-month period, as defined by VA regulation. 38 C.F.R. § 4.71a, DC 5243. The Board has also considered whether staged ratings are appropriate in this case. See Hart, 21 Vet. App. at 505; Francisco, 7 Vet. App. 55 (1994). However, at no time during the relevant appeal period has the service-connected lumbar spine disability more nearly met or nearly approximated the criteria for a higher disability rating. Accordingly, staged ratings are not for application in the instant case. The Board notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is also competent to describe functional limitations, but the Board finds that his description of functional limitations in VA claim-related documents (written statements, testimony, etc.) is not consistent with his description of activities performed in the private treatment records. To this extent, the testimony of the Veteran and his partner is not particularly persuasive. In any event, the belief by the Veteran and his partner that his disability is worse than the assigned rating is greatly outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings than the lay statements of the Veteran and his partner. In sum, the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the service-connected lumbar spine disability at any time during the appeal period. Thus, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Neurological Considerations The Board has also considered whether separate disability ratings should be assigned for neurological manifestations resulting from the Veteran's current service-connected lumbar spine disability. 38 C.F.R. § 4.25. In this regard, the Board notes that the Veteran is currently in recipient of disability ratings for his erectile dysfunction and radiculopathy of the right leg. The Veteran did not appeal those disability ratings, and thus they are not currently before the Board. Regarding radiculopathy of the left leg, the Veteran reported radiation and numbness in this leg at his VA examinations. However, neurologic testing of the left leg was normal at the examinations and none of the VA examiners diagnosed the Veteran with radiculopathy of the left leg. The VA and private treatment records do not provide contrary evidence. Regarding bowel or bladder symptoms related to his lumbar spine disability, these were not documented in the VA examination reports, and the Veteran denied experiencing these symptoms at the examinations. The VA and private treatment records do not provide contrary evidence. Thus, for the above stated reasons, the Board finds that the Veteran is not entitled to separate disability rating for a neurological manifestation of his service-connected lumbar spine disability. 38 C.F.R. § 4.25. IV. Extraschedular Consideration The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "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." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the disability rating for his service-connected lumbar spine disability inadequate. This disability was evaluated under 38 C.F.R. § 4.71a, DCs 5237 and 5243, and other potentially applicable diagnostic codes. The Board finds that these criteria specifically contemplate the Veteran's levels of disability and symptomatology. As noted above, the Veteran's disability is primarily manifested by pain, stiffness, spasms, tenderness, limitation of motion, right lower extremity pain, erectile dysfunction and depression. When comparing this disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by his current disability ratings - which include a 20 percent rating for orthopedic manifestations of IVDS, separate ratings for right lower extremity radiculopathy and erectile dysfunction as neurologic manifestations of IVDS, and a separate rating for depression. The Board has also considered an alternate rating for incapacitating episodes of IVDS. Overall, VA's Schedule of Ratings provide schedular criteria for higher ratings still, but the Veteran does not meet or more closely approximate those criteria. As the criteria for the Veteran's service-connected lumbar spine disability more than reasonably describes the Veteran's disability level and symptomatology, the currently assigned schedular evaluations are adequate and no referral is required. See VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996); see also 38 C.F.R. §§ 4.71a, 4.124a, DCs 5276, 8522. ORDER An evaluation in excess of 20 percent for the service-connected status post thoracolumbar strain, herniated nucleus pulposus at the L4-L5 level, with residual pain and limitation of motion, is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's TDIU claim so that he is afforded every possible consideration. Specifically, in the September 2012 remand, the Board directed the AMC to provide the Veteran with additional VA examinations and medical opinions. The November 2012 VA examinations and opinions obtained are inadequate for rating purposes for the TDIU claim. The claim must be remanded again on this basis. Specifically, the November 2012 VA examiners did not provide medical opinions as to whether the Veteran's service-connected disabilities prevent him from obtaining and retaining a substantially gainful occupation. The November 2012 VA psychiatric examiner found that the Veteran's major depressive disorder causes occupational and social impairment, but did not state whether this disability, alone or in combination with the Veteran's other service-connected disabilities, prevents him from obtaining and retaining a substantially gainful occupation. The November 2012 VA spine examiner described how the Veteran's service-connected lumbar spine disability affects his employability, but did not provide an opinion regarding whether this disability, alone or in combination with the Veteran's other service-connected disabilities, prevents him from obtaining and retaining a substantially gainful occupation. This question was specifically asked in the Board's remand directives, and is pertinent to the Veteran's TDIU claim. In light of the foregoing, the claim must be remanded for compliance with the September 2012 Board remand. Notably the prior remand by the Board confers on the claimant, as a matter of law, the right to a VA medical opinion that is adequate for rating purposes. See Stegall, 11 Vet. App. at 268; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Accordingly, the case is REMANDED for the following actions: 1. Return the claims file to the VA examiners who conducted the November 2012 VA spine and psychiatric examinations for addendum medical opinions. The claims file and a copy of this Remand must be made available to the examiners. The examiners shall note in the examination report that the claims folder and the Remand have been reviewed. If the VA examiners are not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiners are asked to provide a medical opinion regarding whether the Veteran's service-connected disabilities (status post thoracolumbar strain, herniated nucleus pulposus at the L4-L5 level, with residual pain and limitation of motion; major depressive disorder; radiculopathy of the right leg; and, erectile dysfunction), in combination or on their own, render him unable to secure or follow a substantially gainful occupation. The examiners should specifically identify all impairment caused by the service-connected disabilities. Thereafter, the examiners should state how the impairment caused by the service-connected disabilities impact the Veteran's ability to perform manual and sedentary type of positions, including the effects of medications used to treat service-connected disability. The medical opinion must address whether his service-connected disabilities alone are so disabling as to render him unemployable. The Veteran's age and the effects of non-service-connected disabilities cannot be factors for consideration in making the determination. However, the effects of treatments and medications used to treat the service-connected disabilities must be considered in the opinion. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiners determine that a decision cannot be made without resort to mere speculation, then it should be clear in the examiners' remarks whether it cannot be determined from current medical knowledge. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. 2. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall, 11 Vet. App. at 268. 3. After the above actions have been completed, the AMC is requested to consider whether the TDIU claim should be referred to the Director of the Compensation and Pension Service for the assignment of an extraschedular rating. 4. After the above actions have been completed, readjudicate the Veteran's TDIU claim, on an extraschedular basis. If the claim remains denied, issue to the Veteran and his representative a SSOC. Afford them the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs