Citation Nr: 1330368 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-10 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbosacral vertebrae (lumbar spine disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. As an initial procedural matter, the Board notes that the Veteran specifically indicated that he did not want a hearing before the Board in his February 2010 substantive appeal (VA Form 9). In an April 2013 written statement, the Veteran's representative indicated that the Veteran had elected a Board hearing at the RO in his substantive appeal, noted as submitted on a different month. The Veteran has not indicated in any submission after the filing of the substantive appeal that he requests a hearing before the Board, to include the representative's most recent written brief in September 2013. As such, it appears that the Veteran's representative mischaracterized the contents of the substantive appeal in his April 2013 statement. The Board finds that the Veteran did not request such a hearing, and to proceed with adjudication of this case is not prejudicial to the Veteran in this regard. During the pendency of this appeal, a March 2013 rating decision granted entitlement to service connection for radiculopathy of the left lower extremity and assigned a 20 percent disability evaluation effective from September 11, 2007. In the accompanying April 2013 notification letter, the RO informed the Veteran of the necessary steps to file a notice of disagreement with the decision; the Veteran has not filed a notice of disagreement to this decision to date. The Board finds that the Veteran did not perfect an appeal in regard to this issue, and as such, it is not before the Board at this time. A review of the Virtual VA and VBMS electronic claims files reveals the September 2013 written appellate brief from the Veteran's representative (Virtual VA) and additional evidence of the Veteran's ongoing VA treatment for his lumbar spine disability (VBMS). The RO's most recent supplemental statement of the case (SSOC) in March 2013 reflects consideration of the VA medical records. As such, the Board finds that remand for initial RO review of the evidence in the VBMS file is not necessary, and there is no prejudice to the Veteran in proceeding with adjudication of the claim. FINDING OF FACT The Veteran's degenerative joint disease of the lumbosacral vertebrae is not productive of forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for degenerative joint disease of the lumbosacral vertebrae have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, 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. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision 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). In this case, the RO provided the Veteran with a notification letter in April 2008, prior to the initial decision on the claim in June 2008, as well as in December 2008. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The April 2008 notice letter notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Both the April and December 2008 letters provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) relevant to establishing entitlement to increased compensation. Specifically, he was informed in both notice letters of types of evidence that might show such a worsening, including information about ongoing treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect him. In addition, the April 2008 notice letter informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim. Both letters also explained how disability ratings are determined, and the initial April 2008 letter explained how effective dates are determined. The Board further notes that, to the extent the Veteran relied in any manner on an additional October 2008 notice letter marked as sent in "error" by the RO (attached note to file copy letter indicating such), this action was not prejudicial to the Veteran, as he received proper and complete notice prior to initial adjudication of his claim, and he was given an opportunity after this letter was sent and prior to readjudication of his claim in the January 2010 SOC to submit additional information and evidence. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Moreover, the Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, to include any such private records that he has authorized VA to obtain. The record also includes written statements provided by the Veteran. The record does reflect that the Veteran reported being taken to the emergency room several times between 2008 and 2009 for lumbar spine complaints. See April 2008 VA examination history report and June 2008 written statement (indicating April 12, 2008 emergency room visit); February 2010 substantive appeal (VA Form 9) (one trip in both 2008 and 2009); May 2010 VA treatment record. In the VA Form 9, the Veteran indicated that he was taken to the "nearest hospital" for such treatment, even though he told the emergency responders that he was a disabled veteran. In response to this reported information, the RO sent a letter to the Veteran in March 2012 requesting that he identify and provide completed authorization forms for all private emergency room health care providers. The letter included a blank VA Form 21-4142, Authorization and Consent to Release Information. In response, the Veteran submitted a completed Form 21-4142 along with copies of the actual records from Corpus Christi Medical Center (CCMC) (October 2008 treatment); no additional authorization form for another facility or date of treatment at CCMC was provided, to include any such treatment in April 2008. As such, the Board finds that the RO fulfilled VA's duty to assist in this regard. The Veteran was also afforded VA examinations in April 2008 and February 2012 in connection with his current claim. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination and fully address the rating criteria that are relevant to rating the disability in this case. The Board does observe that it is unclear whether the VA examiners reviewed the claims file; however, the examiners did review the Veteran's own medical history and complaints and performed a physical examination that addressed all of the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has further assisted the Veteran throughout the course of this appeal by providing him and his representative with an SOC and SSOC, which informed them of the laws and regulations relevant to the claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 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 a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In this case, as explained below, a uniform rating is warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran contends that he is entitled to a higher evaluation for his service-connected lumbar spine disability, which is currently assigned a 20 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 indicates that degenerative arthritis of the spine should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Parenthetically, the Board notes that the Veteran was originally rated under Diagnostic Code 5295 for a low back strain, in effect at the time of the grant of service connection in a September 1992 rating decision. It appears that the current code sheet has not been updated to reflect use of Diagnostic Code 5242 for rating this disability during the appeal period. Nonetheless, the record reflects that the current rating criteria as applicable here (including the alternate criteria for intervertebral disc syndrome) have been identified and provided to the Veteran by the RO. See, e.g., June 2008 rating decision; December 2008 notice letter; January 2010 SOC. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 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 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Moreover, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). VA treatment records beginning in January 2007 show that the Veteran was seen for treatment related to complaints of chronic low back pain with shooting pains down the left leg. See, e.g., September, October 2007; January 2008; May 2010 VA treatment records. In January 2007, he indicated that he may have re-injured his lower back by "overdoing it at the gym." He reported that he had been treating his back discomfort with ibuprofen but did not like taking medication. Following examination, the impression in relevant part was low back pain. He was instructed to continue the ibuprofen, as needed for pain and to use warm compresses on the muscles, and he was prescribed additional pain medication. Thereafter, he was continued on similar treatment and given stretching exercises. See, e.g., September 2007 VA treatment record. In his September 2007 claim, the Veteran stated that his lumbar spine disability had increased in severity. A September 2007 MRI report shows an impression of multilevel degenerative changes in the lumbar spine, which was worst at L4/L5 and L5/S1 levels. The report shows that there were multilevel degenerative changes in the lumbar spinal vertebrae and discs consistent with posterior disc bulges, anterior osteophyte formation, facet joint hypertrophy, and ligamentous hypertrophy, which caused varying degrees of lumbar spinal canal stenosis (L4/L5 and L5/S1) and some foraminal narrowing (L5/S1). A notation was made that the remainder of the lumbar disc levels were unremarkable. During an October 2007 physical therapy consultation, the Veteran reported that his symptoms were aggravated by prolonged static positions, such as standing, walking, or laying supine and relieved with medications and adjusting sleeping positions. On physical examination, the Veteran's gait was antalgic when he presented to the clinic, strength was grossly 5/5 right lower extremity, and 4+/5 on left lower extremity with pain and resisted knee extension and flexion. There was tenderness to palpation around L4/L5. A neurological screen revealed grossly intact bilateral lower extremities on light touch testing. The Veteran was given low back flexibility and strengthening exercises and instructions on proper body mechanics. During the course of treatment, the Veteran was diagnosed with left lower extremity lumbar (left L5) radiculopathy due to lumbar disc herniation at L4-5 compressing the nerve root. See, e.g., October 2007 and January 2008 VA treatment records. A January 2008 VA treatment record for a pain clinic consultation shows that the Veteran reported constant pain, which was worse in the morning (9.5/10). Activities aggravated the pain, and lying down provided relief. On examination, lumbar range of motion was decreased in flexion to 30 degrees with pain in the left leg, but was normal in other directions without pain. There was no muscle tenderness on moderate pressure with full lower extremity strength. Following examination, an epidural spinal injection (selective nerve root steroid injection) was scheduled for the end of that month. The physician noted that, if long-term response to the procedure was not achieved, a surgical option may need to be considered. The Veteran received this injection in January 2008, as well as injections in April and August 2008 in response to ongoing complaints of pain. The Veteran was afforded a VA examination in April 2008 during which he complained of symptoms, including stiffness limiting bending over, weakness, and constant pain (10/10), to include pain radiating down his left leg. Pain was elicited by physical activity and relieved by rest and medication. The Veteran reported being able to function when experiencing pain with the help of medication, to include two recent spine injections. He also reported going to the emergency room in April 2008 due to problems with his back, but also stated that his condition had not resulted in any incapacitation. On physical examination, range of motion testing revealed forward flexion to 80 degrees with pain starting at 55 degrees, as well as full lumbar spine range of motion measurements without pain otherwise. After repetitive use, pain, fatigue, weakness, and lack of endurance were noted, but did not additionally limit range of motion. His posture and gait were within normal limits, and there was no muscle spasm, no evidence of radiating pain on movement, and no ankylosis. There was tenderness to palpation over the mid-lumbar spine region. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. A neurological examination of the lower extremities revealed motor and sensory function within normal limits. The diagnosis remained degenerative joint disease of the lumbosacral vertebrae with subjective pain, stiffness, fatigue, weakness, and lack of endurance with noted objective findings of decreased range of motion with pain in flexion. In October 2008, the Veteran was taken to the emergency room of Corpus Christi Medical Center for an exacerbation of back symptomatology several days prior, including difficulty walking and intolerable pain. He reported that he had no recent injury, but had been moving furniture into his new house, which he thought caused the pain. He reported that he had been treated in the past with epidural steroid injections, but did not have a primary medical doctor and was out of pain medication. He was discharged that same evening for self-care, including pain medications and instructions to establish with a primary medical doctor for follow-up treatment. A January 2009 VA treatment record shows that the Veteran was satisfied with the current treatment regimen of epidural steroid injections and muscle relaxants for pain. He reported that pain was at a tolerable level and was not interested in surgery at that time. The Veteran re-established care with another VA facility in September 2009 after years away. At that time, the Veteran continued to experience constant low back pain, which he rated as a 9/10 most of the time. He indicated that he did not currently take anything for the pain and had not taken pain medication in eight months. Thereafter, he began to take medication for his back as needed with notations that the medication was helping with the pain. See, e.g., May 2010, November 2010, April 2011, December 2011 VA treatment records. In his February 2010 substantive appeal (VA Form 9), the Veteran reported that he continued to live in daily pain and took medication for severe pain. He noted that his doctor provided him with an option for surgery with enumerated risks and that he was taken out of his residence on two separate occasions to local hospitals for problems with his back. He also indicated that he was not experiencing a great deal of pain on the day of his VA examination because he had recently received the injection to his back. A November 2010 VA treatment record shows that the Veteran was able to go to the gym three times each week. An April 2011 VA treatment record shows that the Veteran had an exacerbation of low back pain after playing golf earlier that day. The Veteran was afforded another VA examination in February 2012 during which he again reported continuing back pain (9/10) with treatment including steroid injections (most recently three years prior). The examiner noted that the Veteran did not report a history of flare-ups. On physical examination, range of motion testing revealed forward flexion to 60 degrees with pain at the end of movement, as well as reduced, but present, movement in the other range of motion measurements, all with pain at the end of movement but no other additional functional loss or additional limitation of motion after repetitive use. There was no localized tenderness or pain to palpation, guarding, or muscle spasm. Muscle strength, reflex, and sensory examinations revealed normal results. The examiner noted intermittent, moderate radiculopathy of the left lower extremity, but noted there were no other signs or symptoms of radiculopathy and no other neurologic abnormalities or findings related to the lumbar spine disability. There was no intervertebral disc syndrome. The examiner noted review of an MRI report from December 2011, which documented an impression that the current pathology in the lumbar spine was as described on the previous September 2007 MRI discussed above. The diagnosis remained lumbar degenerative joint disease. The examiner observed that the Veteran reported full-time work for the past two years that did not include physical labor and indicated that he had no work time lost due to his back. The examiner also noted that the range of motion testing results were not consistent with movements the Veteran made while getting dressed and other non-examination movements. In an April 2013 written statement, the Veteran's representative asserted that the February 2012 VA examination showed that the Veteran had bilateral moderate radiculopathy. In a September 2013 written brief, the Veteran's representative indicated that the Veteran was entitled to a rating in excess of 20 percent due to an incapacitating episode requiring bed rest and treatment by a physician in April 2008, following the epidural spine injection, "as noted in the record . . . ." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher evaluation in excess of 20 percent for his lumbar spine disability. The Veteran has not been shown to have forward flexion of the thoracolumbar spine to 30 degrees or less. In this regard, the April 2008 VA examination revealed forward flexion to 80 degrees (55 degrees with pain), and the February 2012 VA examination showed forward flexion to 60 degrees. The Board acknowledges the January 2008 VA treatment record showing lumbar range of motion decreased in flexion to 30 degrees with pain in the left leg; however, this isolated measurement is not indicative of an actual or functional overall disability picture consistent with the 40 percent rating criteria when reviewing the other VA treatment records and the VA examinations performed shortly thereafter in April 2008 (results noted above) and subsequently in February 2012. Significantly, both VA examination flexion measurements are consistent with the 20 percent evaluation assigned and do not meet the criteria for the 40 percent evaluation, even considering the measurements when pain starts, discussed in greater detail below. Thus, the Board concludes that the preponderance weighs against a finding that the Veteran has forward flexion limited to 30 degrees or less. Moreover, the Veteran has not been shown to have favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Based on the aforementioned range of motion findings, the record shows that the Veteran's lumbar spine is not fixated or immobile, and the April 2008 VA examiner specifically noted no ankylosis. While the noted ranges of motion were notably limited by pain throughout the appeal period, these findings are consistent with and fully contemplated by the 20 percent rating currently assigned. In addition, there is no indication that the Veteran has had incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. As previously noted, an incapacitating episode is defined as 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The Board acknowledges the argument of the Veteran's representative submitted in the September 2013 brief that the Veteran had an incapacitating episode in April 2008 meeting the requirements for an evaluation in excess of 20 percent under this criteria. However, a review of these records and the remainder of the evidence does not reflect that the Veteran was prescribed bed rest for at least 4 weeks but less than 6 weeks during the past 12 months for his lumbar spine disability, to include the period after the spinal injections. While the representative's reference to the record is somewhat unclear, a review of the April 2008 VA treatment records around the referenced date (April 14) shows a pre-procedure fall risk screen report that includes a notation of "bedrest" as a possible fall risk criteria; however, there is no indication that the Veteran was actually prescribed bedrest at that time or after the injection given on April 14. Nor is there any indication that any requirement of bedrest at that time would have met the durational requirements. Moreover, both VA examinations show that the Veteran does not even have intervertebral disc syndrome. As such, to the extent this criteria is for application, the Veteran has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine disability and radiculopathy of the left lower extremity. See Bierman v. Brown, 6 Vet. App. 125, 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The record does not reflect any additional separate neurological findings or disability. In fact, the February 2012 VA examiner specifically found that the Veteran did not have any other neurological abnormalities or findings related to the lumbar spine disability (such as bowel or bladder problems/pathologic reflexes). The examiner also noted that the Veteran did not have symptoms of right lower extremity radiculopathy. As such, to the extent that the Veteran's representative stated that the February 2012 VA examination shows bilateral radiculopathy in his April 2013 written statement, such a contention is inconsistent with the remainder of the record, to include the VA examination results and Veteran's reported symptoms of record. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 20 percent evaluation. In addition, to the extent that the Veteran alleges that the April 2008 VA examination was performed shortly after a steroid injection and did not fully represent his recurring pain, the Board notes that it has considered the entire disability picture, including his reports outside of the VA examination setting, regarding pain and its functional impact. The Veteran's complaints do not, however, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The April 2008 VA examiner noted that, while pain, fatigue, weakness, and lack of endurance were noted on repetitive use, they did not additionally limit range of motion. The February 2012 VA examiner noted pain at the end of movement, but no other additional functional loss or additional limitation of motion after repetitive use. In addition, while the record reflects some exacerbations of low back symptomatology after physical activities, such as moving furniture and going to the gym, the Veteran's lumbar spine disability did not completely prevent him from returning to physical activities after such exacerbations, nor did he report time lost from work as a result of his lumbar spine disability. As such, the disability does not more nearly approximate the criteria for the 40 percent evaluation. Moreover, the Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that it has also considered the lay evidence of record, to include the Veteran's reports during VA examinations and his written submissions, in deciding this case. The Veteran is competent to report as to the symptoms he experiences, including pain, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even affording this lay evidence full competence and credibility, such evidence does not support a rating higher than the one currently assigned. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 20 percent for degenerative joint disease of the lumbosacral vertebrae. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990). In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's lumbar spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's chief complaints of pain and limitation of motion on flexion, to include as due to arthritis, are fully considered in the assignment of the 20 percent disability rating. Although the record reflects that the Veteran was taken to the emergency room in October 2008, he was discharged shortly thereafter on the same day with instructions to use pain medication and seek primary care. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbar spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an evaluation in excess of 20 percent for degenerative joint disease of the lumbosacral vertebrae is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs