Citation Nr: 1330244 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 07-12 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent prior to July 12, 2005, and an evaluation in excess of 20 percent thereafter for degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from July 1975 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The claim was subsequently transferred to the RO in Waco, Texas. This claim was previously remanded by the Board in October 2010 for additional evidentiary development. In July 2007, the Veteran testified before a Decision Review Officer at the RO. In February 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing. Written transcripts of both of these proceedings have been prepared and incorporated into the claims file. In the October 2010 remand, the Board referred the issues of entitlement to service connection for loss of use of creative organ and for an acquired psychiatric disability, to include depression, both as secondary to the Veteran's service-connected lumbar spine disability. Also, a January 2012 memorandum shows that the Veteran has raised the issue of entitlement to service connection for a right shoulder and right "rib cage" condition." A review of the record fails to reflect that any action has been taken on these claims by the Agency of Original Jurisdiction (AOJ), and as such, they are referred to the AOJ for appropriate action. In addition to the Veteran's physical claims file, there is also an electronic paperless file (Virtual VA) associated with this claim. VA treatment records through January 2012 have also been associated with the Veteran's Virtual claims file. The record reflects that these records were considered by the Appeals Management Center (AMC) as part of the January 2012 supplemental statement of the case (SSOC). FINDINGS OF FACT 1. Prior to July 12, 2005, the Veteran's degenerative joint disease of the lumbar spine was manifested by mild intervertebral disc syndrome with flexion to 90 degrees with a combined range of motion in excess of 210 degrees; it was not manifested by symptomatology that could be characterized as "moderate with recurring attacks," or muscle spasms, incapacitating episodes or ankylosis. 2. As of July 12, 2005, the Veteran's degenerative joint disease of the lumbar spine has been manifested by moderate intervertebral disc syndrome with recurring attacks, with flexion in excess of 30 degrees; it has not been manifested by symptomatology characteristic of severe intervertebral disc syndrome with intermittent relief, incapacitating episodes, severe lumbar strain with listing of the whole spine to the opposite side, marked limitation of forward bending in the standing position, loss of lateral motion, narrowing or irregularity of the joint space with abnormality on forced motion or ankylosis. CONCLUSIONS OF LAW 1. The criteria for establishing a disability evaluation in excess of 10 percent for degenerative joint disease of the lumbar spine, prior to July 12, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5285-95 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (2013). 2. The criteria for establishing a disability evaluation in excess of 20 percent for degenerative joint disease of the lumbar spine, as of July 12, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5285-95 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist veterans 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 and 3.326(a) (2013). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in January 2004, January 2005, September 2005, July 2006, July 2007, September 2009 and December 2010, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Copies of private treatment records have also been associated with the Veteran's claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. The Board recognizes that the Veteran was last afforded a VA examination to determine the current level of severity of his service-connected lumbar spine disability in December 2010. In Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Court held that fulfillment of the VA's duty to assist included thorough and contemporaneous examination be provided when the record before the Board contained no evidence of the then-current level of disability. See also Caffrey v. Brown, 6 Vet. App. 377 (1994). However, the Board has not found this to mean that the Court has established a specific time limit beyond which a new examination is required. Reexaminations are required if the evidence indicates there has been a material change in a disability or that the current rating is incorrect. 38 C.F.R. § 3.327 (2013). In the present case, the Veteran has not submitted any statement or evidence to suggest that there has been a material change in his disability since December 2010. The only statement of record is a November 2012 statement from the Veteran's representative noting that this condition had continued to worsen and deteriorate "throughout time." Such a generic statement fails to suggest that there has in fact been a material change since December 2010, and VA treatment records through January 2012 fail to note a material change. As such, the Veteran has not been prejudiced by the elapsed time since his last VA examination. Additionally, the Board finds there has been substantial compliance with its October 2010 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the AMC scheduled the Veteran for a medical examination and that he attended this examination. The AMC later issued a SSOC. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). As already noted, in February 2010, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Acting Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the undersigned noted the issue on appeal and solicited information regarding the nature of his symptomatology as well as the functional impact the claimed disabilities have on his daily life and employment. The Veteran was advised of the type of evidence that could be identified or submitted to further substantiate the claims. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits, "but" the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted or that has not since been obtained. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2012). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2012). Facts and Analysis The Veteran contends that he is entitled to increased disability evaluations for his service-connected lumbar spine disability both prior to and beginning July 12, 2005. However, as outlined below, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 10 percent is not warranted at any time prior to July 12, 2005, and, that an evaluation in excess of 20 percent is not warranted at any time thereafter. For historical purposes, VA received a claim from the Veteran in May 2002 seeking service connection for a low back disability. The Veteran was scheduled for a VA examination in April 2003, but he failed to report to this examination. Nonetheless, service connection was granted for a herniated nucleus pulposus at the L4-5 level, with radiculopathy, in a May 2003 rating decision. A 10 percent disability evaluation was assigned under the then in effect Diagnostic Code 5293, effective as of May 15, 2002. The Veteran did not appeal the assigned rating or express disagreement with the May 2003 rating decision, instead filing a new claim for increased benefits in October 2003. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1361, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The Court further held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim. Buie, 24 Vet. App. at 251-52. In the present case, the Veteran underwent a VA examination in January 2004 to determine the severity of his service-connected back disability. This was within one year of the May 2003 rating decision and is certainly material to the Veteran's claim. As such, the May 2003 rating decision was not final. Nonetheless, the Veteran's October 2003 claim for an increased rating claim was denied in a February 2004 rating decision. Again, the Veteran failed to submit a timely notice of disagreement, instead submitting a claim of service connection for radiculopathy of the lower extremities, bilaterally, in April 2004. Subsequent to this claim, the Veteran was afforded yet another VA examination of the spine in January 2005 - within one year of the February 2004 rating decision. Again, an examination reflecting the current severity of the Veteran's disability is certainly material to his claim, and as such, the February 2004 rating decision is also not final. The Veteran submitted a statement in July 2005 that was interpreted to be a new claim for VA benefits. Specifically, he was seeking a higher rating for his low back disability and nerve damage to the right lower extremity. A 20 percent disability evaluation was subsequently assigned under Diagnostic Code 5242 in a December 2005 rating decision, effective as of July 12, 2005. The Veteran again failed to submit a notice of disagreement in association with this rating decision, instead submitting a new claim for benefits in May 2006. Nonetheless, subsequent to his claim, he was afforded a VA examination of the spine in July 2006 - again within one year of the prior rating decision. In summary, new and material evidence has consistently been associated with the record within one year of each rating decision. As such, the rating decisions of record are not final, and the Veteran's claim properly dates back to May 2002. See 38 C.F.R. § 3.156(b). With that having been said, the Board again notes that the Veteran failed to report to a VA examination scheduled for April 2003. As such, any evidence that may have been garnered as a result of this examination cannot be considered. The record does contain an April 2002 neurosurgical follow-up note signed by a private physician with the initials V.K. It was noted that the Veteran underwent a computed tomography (CT) scan in March 2002 that revealed a herniated disc at the right L4-5 level and spondylolisthesis at the L5-S1 level. The Veteran also endorsed pain mainly into the right leg. A January 2003 private treatment note from a physician with the initials R.K.H. reflects diagnoses of a herniated disc at L5-S1 and radicular pain of the left leg. The Veteran had described pain radiating down the lateral thigh and calf and into the top of the foot. The record also reflects that the Veteran was seen by a chiropractor in January 2003 with complaints of back pain. A June 2003 VA record reflects degenerative changes of the dorsal spine. A December 2003 VA treatment record reflects that the Veteran re-injured his back in an on the job injury. The Veteran denied weakness or loss of bladder or bowel control at this time. The Veteran was subsequently afforded a VA examination of the spine in January 2004. The Veteran described right lumbar pain that was sharp to dull. He rated his pain as a 7 out of 10. He indicated that the pain radiated down his back to his right ankle. The pain was not constant, but intermittent. The Veteran described flare-ups occurring three times per week and lasting all day. He described his pain during these flare-ups as a 10 out of 10. These were precipitated by bending, prolonged standing or lifting more than 15 pounds and alleviated by medications, resting or laying flat on a hard surface. The Veteran indicated that he could walk for one mile or 30 minutes. It was noted that the Veteran worked as a hair stylist, and since he was required to stand all day, he saw fewer clients due to his pain. The examiner concluded that the Veteran had full active and passive range of motion. It was noted that the Veteran had pain in all degrees of motion, but there was no weakened movement, excess fatigability or incoordination. The Veteran had no postural abnormalities and a neurological evaluation was deemed to be normal. He was also noted to have a normal gait, no tenderness to palpation and well-developed musculature. The examiner noted that the Veteran had lost 5 to 6 days in the last year to what he described as incapacitating episodes. The examiner diagnosed the Veteran with degenerative joint disease of the lumbar spine. The Veteran was afforded a VA examination of the lumbar spine in January 2005. The Veteran reported right lumbar pain that for the prior 3 months had been radiating to his right lower extremity up to the ankle with numbness and tingling also. The Veteran described this as constant. Leaning over increased his pain, which as a hairstylist, required him to lift chairs high enough so as not to have to bend. He also indicated that lifting heavy objects increased his pain. It was noted that during a flare-up of pain, there was a temporary decrease in range of motion of the spine. There were no bowel or bladder complaints at this time and the Veteran walked unaided without assistive devices. He did not use a back brace at this time, either. Examination revealed a normal range of motion, with flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees. There was pain at the end of extension and a pulling sensation at the end of left lateral flexion. There was no additional limitation due to pain, fatigue, weakness or lack of endurance following repetitive use. There was also no evidence of muscle spasm, guarding or localized tenderness affecting spinal contour or gait. The Veteran was noted to have some kyphosis, but otherwise, his posture was described as "OK." Neurological testing was also performed, revealing a normal sensory, motor and reflex examination, bilaterally. Lasegue's sign was positive at 40 degrees with the right leg with pain on his back but not on his posterior thigh. The Veteran was diagnosed with HNP at the L5-S1 level with degenerative joint disease and spondylolisthesis of the L5 on S1. There was also radiculopathy of the right lower extremity. The Veteran was afforded another VA examination of the spine in September 2005. The Veteran described a constant dull ache of the low back with increased pain with prolonged standing, walking, bending and lifting. He also complained of occasional radiating pain from the low back to the right foot. It was noted that a prior EMG from January 2005 confirmed the presence of radiculopathy. No additional limitation of motion or functional impairment was found due to flare-ups. The Veteran also did not have any complaints such as bowel or bladder impairment or erectile dysfunction. The Veteran was capable of walking unaided without assistive devices and he endorsed and ability to walk one-quarter of a mile. The Veteran denied any lost employment over the past year requiring bed rest due to back pain. He also had no complaints of difficulty with eating, grooming, bathing, toileting or dressing. Examination revealed the back musculature to be symmetrical in appearance with good strength and muscle tone. There was no tenderness on palpation to the vertebra with no evidence of loss of normal curvature of the back. Range of motion testing revealed forward flexion to 60 degrees (with discomfort at 60 degrees), extension to 30 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 45 degrees. While there was evidence of pain, there was no additional limitation by pain, fatigue, weakness, loss of coordination or lack of endurance following repetitive movement. There was also no evidence of spasm or guarding and the Veteran's gait was normal with a normal spinal contour. A neurological evaluation was performed as well, revealing no evidence of sensory or motor impairment at that time. The examiner diagnosed the Veteran with a lumbar strain, degenerative disc disease and degenerative joint disease of the lumbosacral spine and right L5-S1 radiculopathy. The Veteran underwent a VA neurology consultation in April 2006. The Veteran complained of sypmtomatology involving the right lower extremity, but there was no mention of left lower extremity symptomatology. The Veteran was diagnosed with chronic low back pain with radiation on the right. A diagnosis of radiation to the left lower extremity was not noted at this time. The Veteran was afforded an additional VA examination of the spine in July 2006. The Veteran reported pain that radiated into the right leg to the ankle and into the left leg to the mid-posterior thigh, as well as stiffness and weakness. He described the pain as constant, with increased pain every other day with prolonged standing. No additional limitation of motion or functional impairment was noted during these periods of increased pain. The Veteran reported that he could walk 3 miles. He did not require an assistive device and there was no history of unsteadiness. The Veteran reported that this condition impacted his occupation in that he had to miss work once per week due to pain. He denied any effect on his daily activities, however. Examination revealed flexion to 90 degrees (with no pain until 45 degrees), extension to 30 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees. There was no change in motion upon repeated and resisted testing of the spine with no additional limitation noted. There was also no evidence of spasm or guarding, but tenderness was noted with preserved spinal contour and normal gait. A neurological examination revealed a normal motor examination with normal muscle tone and no atrophy. Reflexes were normal bilateral, as was light monofilament sensation. The Veteran was diagnosed with degenerative disc disease and degenerative joint disease of the lumbar spine. According to a September 2006 VA treatment record, the Veteran was experiencing pain in his spine that he rated as an 8 out of 10. It was noted that he was having trouble sleeping at night or sitting due to pain, and his job as a hairdresser exacerbated his pain as it required him to stand all day. The Veteran was afforded an additional VA examination in July 2007. The Veteran reported lumbar pain that he described as a 5 to 6 out of 10 in intensity, although it would vary between a 3 out of 10 to a 7 or 8 out of 10. The Veteran described the pain as constant and daily and noted that it radiated into the right lower extremity with numbness, paresthesia and tingling. The Veteran denied any flare-ups at this time, but he noted his pain was worse with movements, prolonged standing and walking. The Veteran did not require any assistive devices for ambulation, but he did have a back brace that he occasionally used. The Veteran reported that he walked one mile every day and generally stood for 10 to 12 hours per day. The examiner concluded that this condition had a moderate to severe impact on the Veteran's daily activities, although he had gainful full-time employment and performed his activities of self-care independently. Examination revealed the Veteran's gait, stance and posture to be normal. Range of motion testing revealed flexion to 50 degrees (with pain between 50 and 60 degrees), extension to 20 degrees (with pain between 10 and 20 degrees), left lateral flexion to 20 degrees (with pain from 10 to 20 degrees), right lateral flexion to 10 to 20 degrees with pain, and bilateral lateral rotation to 30 degrees that was painless. While there was evidence of pain on motion, there was no change in the motion on repetition. The examiner also noted that there was no additional limitation of joint function due to pain, fatigue, weakness, lack of endurance or incoordination. There was no evidence of muscle spasm either, and no weakness of the leg muscles. Reflexes were normal, bilaterally. However, there was decreased sensation to monofilament and pin in the right lower extremity, but vibration was intact. A June 2007 magnetic resonance imaging (MRI) scan was reviewed and the Veteran was diagnosed with remote lumbar strain with reinjury to the low back in 2001 with degenerative joint disease, degenerative disc disease, and disc bulge at L3-4 and L4-5 with right lower extremity sensory radiculopathy. A February 2008 VA treatment record notes that the Veteran was forced to cut back on his work hours due to back pain and headaches. It was noted that the Veteran worked at a beauty salon and spa and was forced to take off three days a week as he needed time to recover from his pain. Also, according to a June 2008 VA treatment record, the Veteran's back pain forced him to decrease his physical activities and workload, and he had to discontinue many enjoyable activities such as dancing because of his pain. The Veteran was afforded an additional VA examination of the spine in September 2009. The Veteran reported that he was having worse pain and more often. He was a hairstylist and was on his feet daily. The Veteran endorsed muscle spasms and reported a monthly massage to alleviate this condition. The Veteran also described radiation of numbness and tingling down the right lower extremity into the ankle. The Veteran denied a history of bowel or bladder impairment, but did endorse erectile dysfunction and leg or foot weakness with paresthesias and unsteadiness. The Veteran also endorsed severe flare-ups occurring every 5 to 6 months and lasting for hours. These flare-ups were precipitated by prolonged activity and alleviated by rest. The Veteran did not feel he had increased limited motion during these flare-ups. There was also no history of incapacitating episodes of spine disease and the Veteran did not require any assistive devices or aids. He reported that he was able to walk more than one-quarter of a mile but less than one mile. Examination revealed the Veteran's posture, gait and head position to be normal. There were no abnormal spinal curvatures and no evidence of ankylosis. There was also no objective evidence of spasm, guarding, tenderness, or weakness. Range of motion testing revealed flexion to 70 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 25 degrees and bilateral lateral rotation to 30 degrees. There was objective evidence of pain on motion but there were no additional limitations after repetition. Neurological testing revealed a normal motor examination in the lower extremities, bilaterally. Reflexes and sensation were also deemed to be normal in the left lower extremity, but there was decreased sensation on the lateral right calf and hypoactive reflexes on knee jerk. The examiner diagnosed the Veteran with degenerative disc disease and degenerative joint disease of the lumbar spine with HNP and radiculopathy of the right lower extremity. The Veteran, however, was employed full-time and denied missing any work due to his back condition over the past 12 months. It did result in significant effects on his occupation though due to decreased mobility, difficulty reaching and pain. The Veteran was most recently afforded a VA examination to determine the severity of his service-connected lumbar spine disability in December 2010. The Veteran reported constant chronic mild pain in his back that became moderate or even sometimes "nearly severe pain" depending on the Veteran's activity levels. The Veteran worked as a hair stylist and reported that his pain was worsened with prolonged standing, frequent bending or lifting or carrying. The Veteran reported back pain that radiated bilaterally around his flank to his anterior abdomen, down the back of his right leg and "every once in a while," part-way down the back of his left leg. To treat his back condition, the Veteran took medication several times per day and wore a back brace when at work for a prolonged period of time. Upon examination, the Veteran denied symptoms such as bowel or bladder impairment. He did endorse numbness, however. There were no incapacitating episodes of spine disease, and the Veteran was able to walk more than one-quarter of a mile but less than one mile. The Veteran had a normal gait with a stooped posture. It was noted that because of this the Veteran had moderate thoracic kyphosis with head forward. There was no ankylosis of the spine and no evidence of spasm, guarding or tenderness. Range of motion testing revealed flexion to 60 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 35 degrees, left lateral rotation to 45 degrees and right lateral rotation to 30 degrees. There was objective evidence of pain on motion but no additional limitations of motion were noted upon repetition. Neurological testing revealed decreased sensation to vibration and light touch in the right lower extremity and decreased sensation to vibration in the left lower extremity. Reflexes were hypoactive, bilaterally, but a motor examination was normal with normal muscle tone and no atrophy. The examiner diagnosed the Veteran with lumbar degenerative disc disease without evidence of active radiculopathy (negative straight leg raising). There was evidence of bilateral lower extremity sensory loss, right greater than left, that was suggestive of prior bilateral radiculopathy. It was noted that the Veteran was self-employed as a hairstylist and that he had not lost any work due to this condition in the past 12 months. It did impact his overall employment, however, by causing problems with lifting, carrying and pain. Finally, the examiner noted that a separate rating for radiculopathy of the left lower extremity did not appear to be warranted after examination, explaining that while the Veteran may have had this condition in the past, the current examination did not reveal evidence of active radiculopathy. Some decreased sensation could be caused by many factors, but there was no asymmetrical reflexes, motor weakness, calf atrophy or positive straight leg raising. A MRI scan performed in January 2011 revealed signal changes of disc desiccation at L2-3 through L5-S1. There was moderate to severe decrease in disc height as well at L3-4 with mild to moderate decrease in disc heights at L2-3, L4-5 and L5-S1. There were also perineural cysts at the S2 level and a moderate-sized diffuse posterior annular bulge at the L2-3 and L3-4 levels. There was also mild to moderate degenerative spurring at the facet joints with a tiny posterior focal central disc protrusion at the L5-S1 level. The Veteran's paperless clamis file also contains a VA treatment record dated June 2011. According to this note, the Veteran had been undergoing spinal decompression therapy for the past 2 weeks. The Veteran indicated that this treatment was in fact benefiting him. Prior to July 12, 2005 The preponderance of the above evidence demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent prior to July 12, 2005. The Board notes that the Veteran's claim was originally rated under Diagnostic Code 5293, as it existed prior to September 26, 2003. In considering the Veteran's claim, the Board notes that the regulations for rating disabilities of the spine were twice revised during the pendency of the Veteran's claim, effective September 23, 2002; and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). In this regard, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3- 2000; see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Amendments with a specified effective date without provision for retroactive application may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. In this case, either the old or revised rating criteria may apply, although the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000. The former provisions of Diagnostic Code 5293, in effect before September 23, 2002, provide criteria for evaluating intervertebral disc disease. Under the former provisions of Diagnostic Code 5293, a noncompensable evaluation is assigned for post-operative, cured intervertebral disc disease. A 10 percent rating requires evidence of mild intervertebral disc disease. A 20 percent evaluation necessitates evidence of moderate intervertebral disc disease with recurring attacks. A 40 percent rating requires evidence of intervertebral disc disease which is severely disabling with recurring attacks and intermittent relief. The highest evaluation allowable pursuant to this Diagnostic Code, 60 percent, necessitates evidence of pronounced intervertebral disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). According to records from 2003, the Veteran was exhibiting symptoms such as back pain and radicular pain into the lower extremities. The Veteran also endorsed pain upon examination in January 2004, but he indicated that this pain was intermittent rather than constant. Also, there were no postural abnormalities and an objective neurological evaluation was normal. The Veteran also only endorsed missing work on 5 to 6 occasions the prior year due to his back symptomatology. The Veteran again described pain with radiation upon examination in January 2005. However, there was no evidence of muscle spasm and neurological testing revealed normal sensation and reflexes. The Veteran also denied missing any work over the past 12 months upon examination in September 2005. Therefore, the Board finds that the Veteran's intervertebral disc syndrome is most appropriately characterized as "mild" versus "moderate with recurring attacks" prior to July 12, 2005. Under the revised provisions of Diagnostic Code 5293, in effect from September 23, 2002 to September 25, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopaedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Effective September 26, 2003, the rating criteria applicable to diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended by VA. These amendments included the changes made to the criteria used to evaluate intervertebral disc syndrome, which had become effective in the previous year. 68 Fed. Reg. 51,454 (Aug. 27, 2003). The criteria for evaluating intervertebral disc disease were essentially unchanged from the September 2002 revisions, except that the diagnostic code for intervertebral disc disease was changed from 5293 to 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2003). Specifically, the September 2002 intervertebral disc syndrome changes which were incorporated into the September 2003 amendments stipulate that intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a higher rating of 20 percent requires evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a (2013). A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id at Note (1). The record does not reflect that the Veteran has been prescribed bed rest by a physician at any time during the pendency of his claim - either before July 12, 2005, or since. As such, the Formula for Rating Intervertebral Disc Syndrome, as it has been in effect since September 2002 and September 2003 would not permit a disability evaluation either in excess of 10 percent, prior to July 12, 2005, or in excess of 20 percent since that date. The Board recognizes that the Veteran reported losing work for five to six days during his January 2004 VA examination for what he described as incapacitating episodes. However, while the Board is not disputing the Veteran's accounts of pain, VA regulations are quite clear. For rating purposes, an incapacitating episode "requires bed rest prescribed by a physician." 38 C.F.R. § 4.71a, Note (1). As there is no evidence of physician prescribed bed rest, the Veteran's assertions fail to demonstrate that a higher disability evaluation would be warranted. Furthermore, a higher evaluation of 20 percent requires at a minimum incapacitating episodes totaling at least two weeks. The Board has also considered whether a higher rating may be warranted based on any other applicable diagnostic code that was in effect prior to September 26, 2003. However, there is no evidence of vertebral fracture or ankylosis, and as such diagnostic codes 5285, 5286 and 5259 are not for application. See 38 C.F.R. § 4.71a (2003). Likewise, the Veteran has maintained a full range of motion, and as such, a higher rating would not be warranted for "moderate" limitation of motion under Diagnostic Code 5292. Finally, there is no evidence of a lumbar strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position, and as such, Diagnostic Code 5295 is not for application. As such, there are no regulations that were in effect prior to September 26, 2003, that would warrant a disability evaluation in excess of 10 percent prior to July 12, 2005. Also according to the new law, Diagnostic Code 5235 (vertebral fracture or dislocation), Diagnostic Code 5236 (sacroiliac injury and weakness), Diagnostic Code 5237 (lumbosacral or cervical strain), Diagnostic Code 5238 (spinal stenosis), Diagnostic Code 5239 (spondylolisthesis or segmental instability), Diagnostic Code 5240 (ankylosis spondylotis), Diagnostic Code 5241 (spinal fusion), Diagnostic Code 5242 (degenerative arthritis of the spine (see also Diagnostic Code 5003)); Diagnostic Code 5243 (intervertebral disc syndrome) are evaluated under the following general rating formula for diseases and injuries of the spine (unless intervertebral disc syndrome is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 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: A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned 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. Id. However, the preponderance of the evidence of record demonstrates that the Veteran failed to meet the criteria for an evaluation in excess of 10 percent under the General Rating Formula at any time between September 26, 2003, the date the new regulations became effective, and July 12, 2005, the date his evaluation was increased to 20 percent. According to the Veteran's January 2004 VA examination, he had full active and passive range of motion. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. Id at Note (2). The Veteran was also noted to have flexion to 90 degrees upon examination in January 2005. As such, the evidence of record demonstrates that the Veteran has maintained flexion far in excess of 60 degrees. Furthermore, his combined range of motion has consistently been in excess of 120 degrees. Finally, there is no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour at any time prior to July 12, 2005. As such, a disability evaluation is not warranted under the rating criteria as it existed prior to September 26, 2003, and as it has existed since that date, at any time prior to July 12, 2005. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court discussed the applicability of 38 C.F.R. §§ 4.40 and 4.45 to examinations of joint motion. 38 C.F.R. § 4.40 listed several factors to consider in evaluating joints including inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss due to pain was a consideration, as well as weakness, which was an important consideration in limitation of motion. 38 C.F.R. § 4.40 (2013). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal; (b) more movement than normal; (c) weakened movement; (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; (f) pain on movement, swelling, deformity or atrophy of disuse; instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. 38 C.F.R. § 4.45 (2013). The Board recognizes that the Veteran was noted to have pain in all fields of motion upon examination in January 2004. While the Veteran experienced pain throughout motion, he was still capable of a full range of motion. The Court clarified that 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 in fact impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. In the present case, despite his pain, the Veteran has not demonstrated functional loss of such severity to suggest that a rating in excess of 10 percent was warranted prior to July 12, 2005. The examiner specifically noted that there was no weakened movement, excess fatigability or incoordination, and the January 2005 VA examiner also found no additional limitation due to pain, fatigue, weakness or lack of endurance upon repetition. As such, the preponderance of the evidence of record demonstrates that functional loss was not of such severity prior to July 12, 2005, to warrant a disability evaluation in excess of 10 percent. Since July 12, 2005 The preponderance of the evidence of record also demonstrates that the Veteran is not entitled to a disability evaluation in excess of 20 percent for his service-connected lumbar spine disability at any time since July 12, 2005. The Board recognizes that the AOJ assigned July 12, 2005 as the date of increase due to an interpretation that this was the date of receipt of a new claim. While this classification is incorrect, the date assigned by the RO is not prejudicial to the Veteran. As discussed in the previous section, the preponderance of the evidence of record prior to this date fails to reflect entitlement to a rating in excess of 10 percent. The Board will first consider the rating criteria as it existed prior to September 26, 2003, as the Veteran is entitled to whichever version of the law is most beneficial. A higher rating is available at 38 C.F.R. § 4.71a (2003) when there is evidence of ankylosis. The Veteran has maintained a degree of motion in the thoracolumbar spine, demonstrating that he does not suffer from ankylosis. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See Shipwash v. Brown, 9 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at 91. As such, there is no basis for a finding of ankylosis at any time during the pendency of this claim, as the Veteran has maintained some degree of motion. Therefore, a higher evaluation under Diagnostic Codes 5286 or 5289, in effect prior to September 26, 2003, is not warranted. Likewise, the preponderance of the evidence of record demonstrates that the Veteran's limitation of motion is more appropriately characterized as "moderate" rather than "severe" since July 12, 2005, and as such, a higher rating is not warranted under Diagnostic Code 5292. Since this time, the Veteran has maintained a significant degree of motion, with flexion to 50 degrees or more. The Veteran has also maintained a degree of extension, lateral bending and lateral rotation. The Veteran has also exhibited an ability to continue to perform his job which requires standing for extensive periods of time, as well as performing his activities of daily life independently. As such, the evidence demonstrates that the Veteran's range of motion has been more appropriately characterized as "moderate" versus "severe" since July 12, 2005. A higher evaluation is also available under Diagnostic Code 5293 for severe recurring attacks with intermittent relief. 38 C.F.R. § 4.71a (2003). However, as already noted, the Veteran continues to work at a job that requires he stand most of the day. Despite his symptoms, he is able to perform his job without assistive devices. The Board concedes that the Veteran's condition results in pain and diminished functionality. However, the Veteran has continued to work full-time and perform his activities of self-care independently. He has also maintained a significant range of motion and there is no evidence of impaired muscle tone or muscle spasm. Therefore, the Veteran's degenerative joint disease is more properly characterized as "moderate" rather than as "severe." Finally, the Board notes that a higher evaluation is available under Diagnostic Code 5295 for a severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes or narrowing or irregularity of joint space, or, some of these symptoms with abnormal mobility on forced motion. 38 C.F.R. § 4.71a (2003). The evidence of record does not reflect that the Veteran has been diagnosed with a severe lumbosacral strain, or that he has listing of the spine, positive Goldthwaite's sign or marked limitation of bending in the forward position. In fact, the Veteran was capable of forward flexion to 60 degrees upon examination in December 2010. The Veteran also exhibited a significant degree of lateral motion upon examination at this time. Finally, the record fails to reflect abnormal mobility on forced motion. As such, there are no applicable diagnostic codes that were in effect prior to September 26, 2003, that would permit a disability evaluation in excess of 20 percent at any time since July 12, 2005. The Board has also considered whether the Veteran may be entitled to a disability evaluation in excess of 20 percent at any time since July 12, 2005, under the law as it has existed since September 26, 2003. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, the next-higher rating of 40 percent requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a (2013). According to the September 2005 VA examination report, the Veteran was capable of flexion of the thoracolumbar spine to 60 degrees. Flexion was to 90 degrees upon examination in July 2006 and to 50 degrees upon examination in July 2007. Subsequent examinations continue to reflect flexion in excess of 30 degrees, with flexion most recently being found to be to 60 degrees upon examination in December 2010. As such, the preponderance of the evidence of record clearly reflects that the Veteran has been capable of flexion of the thoracolumbar spine in excess of 30 degrees since July 12, 2005, and as such, a higher evaluation is not warranted. Likewise, the evidence of record demonstrates that the Veteran does not suffer from favorable anylosis of the entire thoracolumbar spine. Fixation of the spine at neutral (0 degrees) represents favorable ankylosis. 38 C.F.R. § 4.71a at Note (5). The Veteran has maintained motion throughout the pendency of this claim, suggesting that there is not fixation of the spine at 0 degrees. In addition, the December 2010 VA examiner specifically found that the Veteran did not suffer from ankylosis of the thoracolumbar spine. As such, higher ratings based on ankylosis are not permitted. The Board has again considered whether there is evidence of sufficient functional loss associated with the Veteran's lumbar spine disability to warrant a higher evaluation at any time since July 12, 2005. See DeLuca, 8 Vet. App. at 272. According to the September 2005 VA examination report, the Veteran experienced pain upon 60 degrees of flexion. However, there was no additional limitation by pain, fatigue, weakness, loss of coordination or lack of endurance upon repetition. Pain was also noted to begin at 45 degrees upon examination in July 2006 and at 50 degrees in July 2007. Again, however, no additional functional loss was noted upon repetition due to this pain. Subsequent examinations continue to reflect pain on motion, but additional limitation was not witnessed upon repetition in September 2009 and December 2010, and the September 2009 VA examiner noted that the Veteran did not feel he had increased limited motion during flare-ups. As such, the evidence of record fails to demonstrate that the Veteran suffers functional loss of such severity as to warrant a disability evaluation in excess of 20 percent at any time since July 12, 2005. The Board has also considered whether a separate disability evaluation for neurological manifestations of the left lower extremity may be warranted at any time during the pendency of the Veteran's claim. Note (1) to 38 C.F.R. § 4.71a instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The record does not reflect any evidence of bowel or bladder impairment at any time during the pendency of this claim. While there are intermittent complaints associated with the left lower extremity, the preponderance of the evidence of record demonstrates that a separate disability evaluation is not warranted for these complaints. While the Veteran noted radicular pain in January 2003, the evidence does not demonstrate any objective manifestations of neurological impairment at this time. Subsequent records reflect complaints involving the right lower extremity, but it is not until July 2006 that the Veteran again endorses symptomatology of the left lower extremity. Again, no objective manifestations were noted at this time and no disability was diagnosed. Finally, the December 2010 VA examiner did note decreased sensation to vibration in the left lower extremity. However, the examiner explained that the current examination did not in fact reveal any evidence of active radiculopathy. The examiner noted that the loss of sensation noted upon examination could be due to numerous factors, but there was no asymmetrical reflex, motor weakness, calf atrophy or positive straight leg raising. As such, there was no evidence of active radiculopathy. As there is no evidence of objective neurological manifestations involving the left lower extremity and associated with a clinical diagnosis, the Board finds that a separate disability evaluation for neurological manifestations of the left lower extremity is not warranted at any time during the pendency of this claim. The Board notes that symptomatology associated with the right lower extremity was again noted upon examination in December 2010. However, the Board previously denied the claim of entitlement to a disability evaluation in excess of 10 percent for neurological manifestations of the right lower extremity in October 2010. The Veteran did not appeal this decision, and as such, the right lower extremity is no longer on appeal. The Board recognizes that the Veteran believes he is entitled to an increased disability evaluation for his service-connected lumbar spine disability. In his July 2007 DRO hearing, the Veteran described symptoms such as pain and functional impairment. During his February 2010 Board hearing, he also testified to problems with lifting, bending, and standing for long periods of time due to pain and limited motion. He also indicated that he wore a back brace on occasion, as he had previously reported to numerous medical providers. While the Board has considered this testimony, it fails to reflect that a disability evaluation in excess of 10 percent is warranted at any time prior to July 12, 2005, or, that an evaluation in excess of 20 percent is warranted at any time since July 12, 2005. The Board concedes that the Veteran suffers some degree of functional and occupational impairment stemming from his back disability. This is inherent in the assigned disability evaluations. However, he has failed to offer any statements or evidence to demonstrate that he met the scheduler criteria for a higher rating at any time during the pendency of this claim. As such, the Veteran's testimony fails to reflect that a higher scheduler rating is warranted in this case. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an increased disability evaluation for degenerative joint disease of the lumbar spine, to include an evaluation in excess of 10 percent prior to July 12, 2005, and an evaluation in excess of 20 percent thereafter, must be denied. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In this regard, to accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The provisions of 38 C.F.R. § 3.321(b) state as follows: Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Veteran's complaints as to the effects of his service-connected lumbar spine disability has had on his activities of work and daily living. However, all aspects of the Veteran's low back disability are adequately encompassed in the assigned schedular ratings. In this respect, the Veteran complains of pain and limited motion resulting in a decreased ability to function or stand or sit for extended periods of time. The assigned disability ratings, however, contemplate the impairment of function caused by a painful back with limited motion. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008). The Board notes that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The evidence of record demonstrates that the Veteran is presently employed on a full-time basis. He has not alleged unemployability, and as such, TDIU has not been raised. ORDER An initial disability evaluation in excess of 10 percent prior to July 12, 2005, and an evaluation in excess of 20 percent thereafter for degenerative joint disease of the lumbar spine is denied. ____________________________________________ APRIL MADDOX Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs