Citation Nr: 1333648 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-10 624A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for lumbar spondylosis with degenerative disc disease. 2. Entitlement to an effective date earlier than September 5, 2012, for the award of service connection for radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active coast guard service from August 1993 to July 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2004 and June 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, and the Appeals Management Center (AMC). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. This case was most recently before the Board in March 2013. At that time, the Board remanded the lumbar spine rating claim for additional development and consideration. While the case was in remand status, the AMC granted service connection for radiculopathy of the right lower extremity in the June 2013 rating decision. A 10 percent rating was awarded effective September 5, 2012. That issue is discussed further in the remand section following the decision below. In September 2013, the Veteran submitted additional evidence subsequent to the most recent supplemental statement of the case. In July 2013, the Veteran's representative waived review by the RO of any evidence that would be located and submitted at a later time. See 38 C.F.R. § 20.1304(c) (2013). In an August 2013 brief, the Veteran's representative referenced several disabilities that are not part of the appeal. The statement is referred to the RO for clarification as to whether the Veteran wishes to file claims concerning the disabilities. FINDINGS OF FACT 1. The Veteran's lumbar spondylosis with degenerative disc disease has been manifested by no worse than moderate limitation of motion without severe lumbosacral strain; forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less and the spine is not ankylosed; incapacitating episodes due to intervertebral disc syndrome having a total duration at least four weeks during a 12-month period have not been shown; and associated neurologic manifestations other than radiculopathy of the right lower extremity have not been shown. 2. The evidence does not present such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected lumbar spondylosis with degenerative disc disease are inadequate. CONCLUSIONS OF LAW 1. The criteria for a schedular disability evaluation in excess of 20 percent for lumbar spondylosis with degenerative disc disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003); 38 C.F.R. §§ 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes 5235 through 5243 (2013). 2. The criteria for referral for an extra-schedular evaluation for lumbar spondylosis with degenerative disc disease have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice for the lumbar spine rating claim in letters mailed in August 2003, March 2006, May 2007, January 2008, and August 2008. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim, most recently in July 2013. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed. In addition, the Veteran has been afforded appropriate VA examinations. More recent medical records and examination reports were obtained pursuant to remands by the Board in July 2012 and March 2013. Neither the Veteran nor his representative has identified any outstanding evidence that should be obtained to substantiate the Veteran's claim. As the record contains sufficient evidence on which to decide the lumbar spine rating claim on appeal, further development is not warranted and VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. II. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Legal Criteria General Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 (2013) concerning lack of endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 (2013) concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 (2013) concerning the effects of the disability on the veteran's ordinary activity are for consideration. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2013). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2013). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board notes that a temporary total disability rating will be assigned for surgery regarding a service-connected disability resulting in convalescence. See 38 C.F.R. § 4.30 (2013). As evidenced below, the Veteran underwent lumbar spine surgery on November 10, 2010. In an April 2012 rating decision, the RO granted a temporary total disability rating based on convalescence effective November 10, 2010, through December 31, 2010. As the Veteran was in receipt of a total rating, the Board will not evaluate the service-connected disability under the Rating Schedule during that time period. Rating Criteria The Veteran's service-connected lumbar spondylosis with degenerative disc disease has been evaluated under Diagnostic Code 5292 since service connection was granted in a July 2002 rating decision effective July 23, 2001. Diagnostic Code 5292 was previously used to evaluate limitation of motion of the lumbar spine. The rating criteria for evaluating diseases of the spine were amended during the pendency of the claim, effective September 26, 2003, and diseases of the spine are now evaluated under Diagnostic Codes 5235 to 5243. In regard to evaluating limitation of motion of the lumbar spine under Diagnostic Code 5292, a 10 percent rating was warranted for slight limitation of motion. A 20 percent rating was warranted for moderate limitation of motion. A 40 percent rating was warranted for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Prior to September 26, 2003, Diagnostic Code 5295 provided rating criteria for evaluating lumbosacral strain. Under that diagnostic code, a noncompensable rating was warranted with slight subjective symptoms only. A 10 percent rating was warranted with characteristic pain on motion. A 20 percent rating was warranted with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating was warranted for severe disability with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of lateral motion with osteo-arthritic changes, or narrowing or irregularly of joint space, or some of the above with abnormal mobility of forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). In addition, prior to September 26, 2003, Diagnostic Code 5293 provided rating criteria for evaluating intervertebral disc syndrome. Under that diagnostic code, intervertebral disc syndrome (preoperatively or postoperatively) was evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under section 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. A 10 percent rating was warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating was warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating was warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Note (1), which follows the rating criteria stated that for purposes of evaluations under 5293, 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Under Note (2), when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Effective September 26, 2003, the rating schedule for evaluation of that portion of the musculoskeletal system that addresses disabilities of the spine was revised. 68 Fed. Reg. 51454-56 (Aug. 27, 2003). The revised and current provisions allow for the evaluation of spine disabilities other than intervertebral disc syndrome under the General Rating Formula for Diseases or Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242 (2013). Intervertebral disc syndrome will be evaluated under the General Rating Formula or the 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 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). The General Rating Formula provides that 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Following the General Rating Formula, Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) [With respect to the lumbar spine]--For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome is evaluated based on incapacitating episodes in a similar manner as set forth in prior Diagnostic Code 5293. An incapacitating episode is defined in an identical manner. As to which version of the rating criteria apply to the Veteran's case, the United States Court of Appeal for the Federal Circuit noted that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003) (citations omitted). VA's General Counsel held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003). The revised criteria may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, the Board will consider both versions of the rating criteria in adjudicating the Veteran's claim, but will not apply the new provisions prior to their effective date of September 26, 2003. IV. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran presented to the VA pain clinic in April and May 2003 complaining of back pain that had gradually worsened over time, associated with shooting pains down the right leg. He reported the pain was worse in the morning and decreased during the day, although some physical activities at work increased the pain. The Veteran denied problems with his bowel or bladder. On physical examination the Veteran walked with a normal gait and no assistive devices, but he reported pain with all trunk movements. There was some tenderness over the paraspinal muscles on the right side. Straight-leg raising (SLR) was negative in the sitting position; deep tendon reflexes (DTRs) at the knees and ankles were 2+. Sensation to pinprick was intact. The Veteran was able to walk on toes and on heels, and muscle strength in the lower extremities was 5/5. The physician noted that computed tomography (CT) scan of the low back had shown mild spinal stenosis at the level L3-4, and some changes at L4-5 and L5-S1 secondary to disc material. The physician stated the CT was inclusive in showing disc bulge versus disc herniation, and recommended referral for magnetic resonance imaging (MRI). The Veteran underwent a VA MRI of the spine in June 2003. It disclosed a diffuse bulging disc at L4/5 contributing to mild bilateral foraminal stenosis and mild central stenosis. At L5/S1 a mild diffuse disc bulge was seen with superimposed small-disc protrusion centrally and mild bilateral facet degenerative changes that contributed to mild right-sided and more mild-to-moderate left-sided foraminal stenosis and mild central stenosis. In a July 2003 statement, the Veteran indicated that he was being treated for back pain and his back problems were getting worse. A VA treatment note, dated in August 2003, reflects that back pain was not a current major concern to the Veteran since he had been referred to a neurosurgeon for treatment. The Veteran was scheduled for VA-contracted examination of the spine in May 2004, but he failed to report for the examination. The Veteran reported in his notice of disagreement (NOD), received in October 2004, that he had missed the scheduled VA examination because he was out of town, and that he had attempted to coordinate with the RO and with the VA Medical Center for rescheduling the examination. He stated he was willing to report for examination and submitted a similar statement in his April 2005 substantive appeal. A VA X-ray study of the Veteran's lumbosacral spine in July 2005 showed a mild dextroscoliosis but was otherwise negative. The Veteran was afforded a VA examination in October 2005 in connection with the claim during which he reported a history of constant, localized low back pain for the past nine years of 7/10 severity. Pain could be elicited by physical activity and stress and could be alleviated by rest and medication. The Veteran denied incapacitation although he had lost time from work three times per month. The functional impairment associated with the disability was difficulty engaging in strenuous physical activity. On physical examination, the Veteran's posture and gait were normal, and he ambulated without assistive devices. There were no complaints of radiating pain on movement of the thoracolumbar spine, and muscle spasm was absent. There was tenderness of the L3 to L5 spinous processes. SLR was negative bilaterally. The spine was not ankylosed. Flexion was to 90 degrees, and combined range of motion was 240 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Neurological examination of the lower extremities showed motor and sensory functions within normal limits, and knee and ankle jerks 2+ bilaterally. The examiner stated there was no change in the previous diagnosis of lumbar spondylosis with degenerative disc disease. The Veteran underwent a VA clinical evaluation of the back in November 2006 during which he complained of constant back pain that intensified after walking for twenty minutes. He also reported some throbbing and shooting pain to the right buttock. Heavy lifting exacerbated the pain. An X-ray study of the back was negative. On examination the Veteran walked with a normal gait. He reported pain in all directions but less noticeable on forward flexion. There was no tenderness found on examination. The Veteran presented to the VA outpatient clinic in March 2007 complaining of a backache of three weeks duration. He stated the back pain started spontaneously and was worse at night, disturbing his sleep. On neurological examination, motor strength was 5/5 bilaterally and sensation was intact bilaterally. SLR was positive at 60 degrees bilaterally. The Veteran's gait was normal. The back had parasacral discomfort and mild tenderness. The clinical impression was backache, treated with ibuprofen. The Veteran presented to the VA outpatient clinic in December 2007 complaining of increased low back pain uncontrolled by his current medications. He denied recent strenuous lifting or other trauma. The clinician observed decreased range of motion in flexion, extension and rotation, right worse than left. The clinician assessed low back pain and prescribed medication and directed the Veteran to return to clinic in one month. A letter dated in January 2008 from friend M.W. states she had known the Veteran for seven years. The Veteran regularly took days off work during the week due to his back problems. The Veteran also had a hard time playing with his children due to his lack of mobility, and while shopping he had to take breaks due to back pain. Medication provided only limited relief. During the past six months the symptoms had become worse according to M.W. The Veteran underwent a VA neurology consultation in July 2008 consequent to complaint of headaches. On examination motor strength was 5/5 in all groups with normal tone and bulk, no atrophy or fasciculations, and no tremors. Sensation was intact to pinprick, light touch, temperature and vibration. DTRs were 2+/4+ in all joints tested; toes were downgoing (Babinski absent). The neurologist's impression in relevant part was chronic low back pain. The Veteran underwent further VA examination of the spine in connection with the claim in August 2008. He reported a 12-year history of low back symptoms. Current symptoms included intermittent stiffness and pain. The pain was located in the lower back and did not radiate to other anatomical areas. The Veteran described the pain as "aching" and occasionally "sharp" with a severity of 7/10. Pain was elicited by physical activity and relieved by rest and pain medications. The Veteran was able to function with these measures. He denied rectal or urinary incontinence. There was no physician-recommended bed rest for incapacitation, other types of treatment, history of surgery, functional impairment or prosthesis. On examination the Veteran's posture and gait were normal. The lumbar spine showed no radiation or muscle spasm on movement, and there was no palpable tenderness in the musculature. The right sacroiliac joint was tender to palpation. SLR was negative bilaterally. There was no ankylosis or deformity. Forward flexion was to 90 degrees, and combined range of motion was 240 degrees. There was no pain on motion, and repetitive motion resulted in no additional limitation of function due to pain, fatigue, weakness, lack of endurance or incoordination. Examination of the entire cervical, thoracic and lumbar spine revealed a normal head position, symmetry in appearance and motion and normal curvature without sign of scoliosis, abnormal lordosis or kyphosis. There was no evidence of intervertebral disc syndrome or specific spinal nerve root involvement. Neurological examination was grossly normal. The examiner stated there was no change in the previous diagnosis of lumbar spondylosis with degenerative disc disease, and stated the disability mildly affected the Veteran's ability to perform the usual occupational and daily living activities. After being seen for a complaint of low back in October 2009, the Veteran presented to the VA clinic in April 2010 complaining of low back pain for four days. Examination showed spasm of the lumbar spinal muscles, right greater than left, and flexion triggered pain. Physical therapy was recommended along with pain medication. A June 2010 physical therapy consultation shows that the Veteran had 8/10 pain in the low back on the right side that worsened with movement. Range of motion was normal for the lower extremities with increased pain reported on the right side. Slump test was positive bilaterally as was SLR. The Veteran walked with a right antalgic gait. A manual assessment showed the right sacroiliac out of alignment. There was tenderness to palpation of the right spinal muscles. X-rays showed degenerative changes of the lumbar spine. The clinician provided an assessment of low back pain that limits mobility. A transcutaneous electrical nerve stimulation (TENS) unit was recommended along with a new MRI. An MRI in June 2010 revealed a large L5-S1 disc herniation, which was seemingly impinging upon both the right S1 and L5 nerve roots. There was secondary right nerve root canal stenosis at L5. There was also a central and left posteromedial disc lesion at the L4-5 level, which was impinging upon the central and left anterior aspect of the thecal sac. In July 2010, the Veteran stated that his back condition was worsening and not improving. He stated that his mobility had been greatly reduced and his quality of life was on the decline. The Veteran could no longer play with his children and his occupation requirements were strenuous. He indicated that he often had days off so he could perform his job at a satisfactory physical level. The Veteran stated that the back injury was affecting his work/life balance tremendously and was only getting worse with time. The Veteran presented to a VA chronic pain consultation in August 2010. He reported that his low back pain had become progressively worse over the past six months, it was worse on the right side, and he would get radiating pains down his lower extremities. The Veteran reported that the pain was worse on activity and he often had to lift heavy equipment at work. He indicated that the pain was 4/10, but ranged to 7/10. The Veteran took Vicodin and used a TENS unit for treatment. He tried physical therapy, but it aggravated the pain. The Veteran denied bowel and bladder incontinence. Sensation was intact on the left side, but decreased in the medial right foot. Muscle strength was 5/5 and reflexes were 2+. The Veteran had moderately decreased flexion and extension. There was no scoliosis, the Veteran's gait was non-ataxic and non-antalgic, and he did not require any assistive devices. There was tenderness to palpation of the lumbar paraspinals. The Veteran could perform all functions of the activities of daily living independently. The assessment was chronic low back pain with a large posterior disc protrusion at L5-S1. The Veteran was referred to neurosurgery and surgery was scheduled through a private provider. Later in August 2010, the Veteran was seen by private treatment provider Atlantic Neurological Services. He complained of right-sided low back pain and pressure with radiation to the buttocks and along the posterior aspect of the lower extremities. Examination of the lumbar spine revealed normal curvatures and mild tenderness to palpation along the lower spinous process and right paravertebral muscles. Flexion and extension were limited to approximately 25 percent of normal secondary to low back pain. SLR was positive on the right at 60 degrees and on the left at 90 degrees. Gait, motor, sensory and DTR examinations were negative. The impression was right L5-S1 radiculopathy secondary to a right-sided disc herniation at L5-S1. Epidural steroid injections were recommended followed by surgery. In October 2010, the Veteran was seen by VA for a follow-up. He reported that back surgery was upcoming. Examination was positive for paraspinal spasm with a negative SLR. The diagnosis was chronic back pain with lumbar radiculopathy. The clinician authored a note that the Veteran was unable to work on the day he was seen and that he could return to light duty the next day. Later that month, he was seen again by Atlantic Neurological Services for low back pain and pressure requesting surgery rather than injections. The findings on examination were similar to those in August 2010 except for findings of mild weakness in the right foot and mildly depressed right ankle reflex. A laminectomy and discectomy were recommended. In a November 2010 statement, the Veteran indicated that the symptoms of his service-connected back disability had increased in severity and resulted in a reduction in the quality of his personal life and employment. The Veteran listed the criteria for higher ratings and indicated that he met all of them. He stated that his back condition had adversely affected his home life and lifestyle, including with his wife. The Veteran's activities were limited, he used the TENS unit for relief, and he had to wear a back brace for lifting. He stated that his back problems caused him to miss work and that they prevented him from maintaining the four rental units that he owns. The Veteran stated he worked as a network engineer for a federal contractor but that his back condition has adversely affected his work performance. He indicated that the pain medication he took also affected him. At that time and later that month, the Veteran submitted a claim for a temporary total disability rating based on convalescence required following lumbar spine surgery. He also submitted a work schedule showing when he took leave from work in 2010, including for medical appointments. The Veteran underwent lumbar spine surgery on November 10, 2010, at Chesapeake Regional Medical Center. The operation report lists a pre- and post-operative diagnosis of herniated lumbar disc at L5-S1 on the right. Partial hemilaminectomy, foraminotomy and discectomy on the right were performed. No complications were noted. After the surgery, the Veteran was seen multiple times by Atlantic Neurological Services in November 2010 and December 2010 as he healed. He submitted letters regarding his leave from work during recovery. The Veteran was seen at Atlantic Neurological Services in February 2011 for post-surgery follow-up. It was noted that he was doing well with the exception of low back pain and spasm. The Veteran denied radiation of pain to the lower extremities. Physical examination showed mild tenderness of the lumbosacral junction, otherwise it was normal. There were no appreciable motor, sensory or reflex deficits. The impression was status post L5-S1 laminectomy and discectomy on the right, doing well. In February 2011, the Veteran stated that he still suffered from severe back pain and incapacitating episodes about four times daily. He took pain medication and was on light duty status at work. The Veteran reported that he missed over 50 days of work due to the surgery and he was set backwards in his personal and professional life. An August 2011 letter from his employer indicates he was being terminated in a reduction of workforce. The Veteran submitted a work schedule showing when he took leave from work in 2011, including for medical appointments. VA treatment records from 2011 pertaining to the lumbar spine show prescriptions for pain medication and authorizations for contracted post-surgery physical therapy. In a February 2012 statement, the Veteran indicated that his new job was more physically demanding than his last job. He was required to lift and carry things, such as computer equipment, multiple times daily. The Veteran had to kneel, squat and crawl in performing his duties. He was undergoing aqua therapy. A March 2012 letter from a VA vocational counselor notes that the Veteran had a documented disability, but could be considered for employment in information technology-related positions in an office setting. The Veteran attended a VA rehabilitation consultation in March 2012. A history was recorded of chronic low back pain status post lumbar discectomy in November 2010. The Veteran reported some improvement after the surgery with extensive physical therapy and use of pain medication. Physical examination revealed decreased sensation to light touch in the right medial sole and he had mild difficulty standing on the tip toes of his right foot. SLR was negative bilaterally and DTRs were 2+ except for an absent right ankle jerk. There was diffuse lumbar paraspinal tenderness. The clinician provided an assessment of chronic low back pain status post lumbar surgery with evidence of chronic right S1 lumbar radiculopathy. A July 2012 VA telephonic treatment record notes the Veteran's complaint of his back really bothering him for about four days. The pain medication was not working. In September 2012, the Veteran underwent a VA examination of the spine pursuant to a July 2012 remand by the Board. The examiner reviewed the claims files, noted the Veteran's medical history and physically examined the Veteran. The diagnoses were back sprain, lumbar disc displacement and scar from discectomy. The Veteran reported that he experiences flare-ups in rainy weather. Range of motion testing showed forward flexion of the thoracolumbar spine to 65 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. Evidence of painful motion was noted at the endpoints of each range. The results were identical after repetitive testing. The examiner noted that there was no additional limitation of motion after repetitive testing. Functional loss was described as less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. Tenderness to palpation was found as was guarding and/or muscle spasm that did not result in an abnormal gait or spinal contour. Muscle strength testing was 5/5 and there was no atrophy. DTRs were 2+ except for absent right ankle reflex. Sensory examination was normal and SLR was negative. The examiner determined that there was mild radiculopathy on the right side involving the sciatic nerve. The neurologic abnormality involved the right lower extremity, which was a negative right Achilles tendon reflex and a more sensitive right sole. The examiner found that the Veteran had experienced incapacitating episodes as a result of intervertebral disc syndrome-at least one week but less than two weeks during the past 12 months. No assistive devices were noted. The examiner indicated that the Veteran's lumbar spine disability did not impact his ability to work. It was noted that the Veteran worked in information technology after service, including for a computer company until 2011. Since June 2012, he had worked for the government and often had to take breaks. In a January 2013 statement, the Veteran indicated that his service-connected injury and surgery have had such an effect on his work life that he has lost employment as a result. Most importantly, he wanted to point out that he had low back surgery in November 2010. The Veteran reported that he was still in pain and had suffered in many ways since his surgery. He listed the criteria for a higher rating and indicated he experienced the symptoms. The Veteran stated that the September 2012 VA examination was on a good day and that sometimes his forward flexion of the thoracolumbar spine can be to 100 degrees and sometimes less than 100 degrees after work. He indicated that the results of the September 2012 VA examination are not far from a 40 percent rating. The Veteran stated that the examiner accurately noted that his back pain increases on physical activity. He indicated that his back problems have affected his home life in that he has problems with sexual intercourse, and pain and pressure with bowel and bladder problems. The Veteran stated that his duties at work cause back pain as he has to carry heavy computer equipment. He indicated that he must take leave for physical therapy appointments and when he is having an incapacitating episode. Additionally, the Veteran reported that he takes large amounts of pain medication. The Veteran reported to a VA neurology consultation in April 2013. This was due to a lack of right Achilles reflex. In the assessment, the neurologist stated that reflexes are frequently affected by surgery and the subsequent scar tissue that forms. According to the neurologist, as long as the Veteran is at his post-surgical baseline, there is no need for neurologic intervention. In April 2013, medical records were received from Bon Secours Health System. The records, dated from August 2011 to April 2013, show VA-contracted physical therapy for the Veteran's post-surgery low back problems. The records primarily pertain to the physical therapy regimen, but they do note reported symptoms of low back pain, inflammation, soreness and stiffness. It was also noted that the Veteran presented with constant low back pain, moderate loss of lumbar spine extension, minimal loss of flexion and tenderness to palpation. Pursuant to the Board's March 2013 remand, the Veteran's claims files were forwarded to the VA physician who conducted the September 2012 examination for further comment on the effects of the Veteran's service-connected low back disability on his ability to work. The physician re-reviewed the claims files and noted that the Veteran is able to work. According to the physician, the Veteran was working for the government per the last visit after being fired from a computer company. It was noted that the Veteran is very intelligent, has a great memory and was working in information technology. The physician noted that, since the Veteran's work is mainly information technology on computers, it is not physically demanding. The physician also noted that the Veteran was ambulatory and in no acute distress in his most recent visit to the VA medical facility in April 2013. The physician stated that the Veteran's longest period of not working was after surgery in 2010 before he went back to work for the computer company. A May 2013 VA treatment record reflects that the Veteran missed several days of work due to a left ankle sprain. Lower back pain was also noted and he was prescribed pain medication and muscle relaxant. In a September 2013 statement, the Veteran reported that he was working as a network engineer. He has to travel for his job and carry heavy computer equipment and tools. The Veteran stated that his job is physically demanding and he has to take days off from work. He asserted that his back problems are far from mild and are definitely in the severe range warranting a 40 percent rating. The Veteran indicated that he had not been seen by a VA examiner after his September 2012 examination as required by the Board remand. The Board notes that the most recent remand requested an addendum opinion from the examiner rather than a new examination. V. Analysis Schedular In consideration of the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's service-connected lumbar spine disability under the rating criteria in effect prior to September 26, 2003. This is so for the entire rating period on appeal exclusive of the convalescent period following his November 2010 surgery. The evidence does not show that the disability has approximated severe limitation of motion of the lumbar spine, which is necessary for a higher 40 percent rating under Diagnostic Code 5292. Instead, the evidence shows that no more than moderate limitation of motion has resulted. The VA examinations conducted during the period of the claim reflect normal forward flexion of the thoracolumbar spine to 90 degrees except to 65 degrees at the September 2012 examination. Additionally, extension was normal except to 20 degrees at the same examination. The August 2010 private clinician indicated only 25 percent loss of motion. The Board does not find this type of limitation of motion to approximate the "severe" level as the Veteran retained all or a great deal of motion of his lumbar spine throughout the claim process. To the extent the level of limitation was characterized by expert medical professionals, the August 2008 VA examiner stated that the disability "mildly" affected the Veteran's ability to perform the usual occupational and daily living activities. Additionally, the August 2010 VA clinician indicated that the Veteran had "moderately" decreased flexion and extension. Moreover, the more recent private physical therapy records reflect "moderate" loss of lumbar spine extension and "minimal" loss of flexion. Thus, the express characterizations by expert medical professionals do not show limitation of motion greater than moderate in nature. This level of limitation of motion is evident even with consideration of painful motion and other factors. See 38 C.F.R. §§ 4.40, 4.45. In the Veteran's case, the October 2005 VA examiner found that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The August 2008 VA examiner noted that there was no pain on motion, and repetitive motion resulted in no additional limitation of function due to pain, fatigue, weakness, lack of endurance or incoordination. Additionally, the September 2012 VA examiner noted that there was no additional limitation of motion after repetitive use testing. The functional loss was described as less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing, which does not more nearly approximate severe limitation of motion required for a higher rating. The Board accords the findings in the VA examination reports the most evidentiary value as to the effects of painful motion and other factors on the functional loss of motion as they expressly considered such factors and contained express expert medical opinions on the matter. Although the medical evidence shows no worse than moderate limitation of motion of the lumbar spine, the Veteran has stated that he has severe limitation of motion. The Board finds that his statement in this regard is of little probative value as it is merely part of a list of the rating criteria. To the extent he is reporting information observable to a lay person, the Board does not find the statement to be credible as it is self serving and in conflict with the medical expert evidence throughout the rating period on appeal. In addition, the evidence does not show that the Veteran's service-connected lumbar spine disability has approximated severe lumbosacral strain during any portion of the rating period on appeal, which is necessary for a higher 40 percent rating under Diagnostic Code 5295. The Veteran has stated that he has severe lumbosacral strain, but the medical evidence from over ten years does not reference strain let alone severe strain. Although the Veteran is competent to report experiencing low back pain, a diagnosis of strain requires certain medical expertise that he is not shown to possess and he merely listed the symptom in a list of rating criteria. The Board accords more evidentiary weight to the medical expert evidence, including multiple reports of VA treatment and examination, as well as private assessment, which does not show that he has lumbosacral strain. In consideration of the evidence, the Board also finds that a rating in excess of 20 percent for service-connected lumbar spine disability is not warranted under Diagnostic Code 5293 for intervertebral disc syndrome during any portion of the rating period on appeal. Prior to the September 2012 VA examination, the evidence tends to show that there were no incapacitating episodes as defined for VA purposes. Although the Veteran was treated by physicians during that time period, the evidence does not show that he was prescribed bed rest. The October 2005 VA examiner did not find intervertebral disc syndrome present and the August 2008 VA examiner noted that there was no physician-recommended incapacitation. Thus, medical experts during that time period considered the Veteran's circumstances, but no incapacitating episodes were evident. The Veteran stated that he experiences incapacitating episodes, but there is no indication that there was prescribed bed rest despite evidence of treatment for low back pain. The Board accord his statements prior to the September 2012 VA examination little evidentiary weight as to whether he experienced incapacitating episodes for VA purposes in view of the lack of evidence of prescribed bed rest and the medical evidence reflective of no prescribed bed rest. Although there is still no indication of prescribed bed rest in the record, the September 2012 VA examiner endorsed the Veteran's report of experiencing incapacitating episodes for VA purposes. Even so, the examiner characterized the episodes as occurring at least one week but less than two weeks during the past 12 months. Thus, to the extent the Veteran does experience incapacitating episodes on account of intervertebral disc syndrome, this level of incapacitations warrants a 10 percent rating under Diagnostic Code 5293. Thus, a higher evaluation is not warranted than the already assigned 20 percent rating because incapacitating episodes having a total duration of at least four weeks have not been shown. As to possible separate evaluations for neurologic manifestations under Diagnostic Code 5293, the evidence shows that the sole such manifestation is radiculopathy of the right lower extremity. As noted in the introduction, service connection was granted for radiculopathy of the right lower extremity in the June 2013 rating decision. A 10 percent rating was awarded effective September 5, 2012. The Veteran did not disagree with the assigned rating but rather the effective date of the award. This disagreement is further discussed in the remand section. As service connection has been granted for radiculopathy of the right lower extremity, the Board will not further address that manifestation in the rating analysis. The evidence does not show that the Veteran has radiculopathy of the left lower extremity. In contrast to the evidence showing neurologic problems on the right side, such as decreased sensation and complaints of radiating pain and numbness, the left lower extremity has been shown to be normal on similar testing. Thus, a separate evaluation is not warranted for a neurologic impairment of the left lower extremity. In the January 2013 statement, the Veteran referenced possible bladder and bowel problems that he associated with his service-connected lumbar spine disability. The Board does not find that this evidence warrants a separate evaluation for such manifestations because the greater weight of the evidence, particularly the medical expert evidence, shows that there is no resultant bladder or bowel manifestation. The Veteran had previously denied such problems during VA examinations and the VA examiners expressly found that there were no such problems or did not identify any neurologic manifestations other than the right-sided radiculopathy. In any case, the Board does not find the Veteran competent to attribute bladder or bowel problems to his service-connected disability. He is competent to report the problems as they are observable to a lay person, but whether they are related to his lumbar spine disability is a medical question that he is not competent to answer. The medical experts have not found such a relationship. Thus, a separate evaluation is not warranted. In considering the revised rating criteria only since September 26, 2003, the Board also finds that a rating in excess of 20 percent is not warranted for the Veteran's service-connected lumbar spine disability. This is so for the rating period on appeal since September 26, 2003, exclusive of the convalescent period following his November 2010 surgery. Similar to the analysis of limitation of motion above, the evidence does not show that the disability resulted in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, or ankylosis, which is necessary for a higher 40, 50 or 100 percent rating under the General Rating Formula for Diagnostic Codes 5235 through 5243. Instead, the evidence shows that less limited motion has resulted. As noted previously, the VA examinations conducted during the claim reflect normal forward flexion of the thoracolumbar spine to 90 degrees except to 65 degrees at the September 2012 examination. The August 2010 private clinician indicated only 25 percent loss of motion, which would be similar to 65 degrees. Furthermore, ankylosis has not been shown and has been expressly found not to be present on VA examination. Even with consideration of all pertinent disability factors, it is clear that the Veteran does not have sufficient limitation of motion to warrant a higher rating. The Veteran has stated that he experiences forward flexion of the thoracolumbar spine to 30 degrees or less and that he has ankylosis. The Board accords his statement little evidentiary value in that it is self-serving and in conflict with the medical evidence prepared by skill professionals. Additionally, the Veteran is not shown to have the medical expertise necessary to provide an accurate measurement for the range of motion of his thoracolumbar spine. See 38 C.F.R. § 4.46 (2013) (the use of a goniometer in the measurement of limitation of motion is indispensable). Moreover, his statement that he has ankylosis is not credible given that he retains motion in the lumbar spine. Thus, a higher rating is not warranted under the General Rating Formula. For reasons identical to the analysis under the previous rating criteria, the Board finds that a rating in excess of 20 percent is not warranted for service-connected lumbar spine disability under the revised Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes since September 26, 2003. The definition of incapacitating episodes remains the same as do the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). Lastly, for reasons identical to the analysis under the previous rating criteria, a separate evaluation for neurologic manifestations (other than the already separately rated right radiculopathy) is not warranted under the revised criteria since September 26, 2003. In sum, a schedular evaluation in excess of 20 percent is not warranted for any portion of the period under review. In so concluding, the Board has considered the benefit-of-the-doubt rule, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.7; see also Gilbert, 1 Vet. App. at 54. Extra-schedular The Board has also considered whether the Veteran's claim should be referred for extra-schedular consideration. Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extra-schedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), the Court held that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. When a previous denial of the Veteran's claim by the Board in January 2010 was appealed to the Court, a Memorandum Decision was issued in October 2011. The Court found that the Board failed to undertake the first-step analysis of Thun and explain why the rating schedule adequately described the Veteran's disability picture. The Court found that the Board must consider the possibly favorable evidence that the Veteran's back condition has caused him to regularly miss work and affected his daily life, including an inability to play with his children. With respect to the first prong of Thun, and with consideration of the evidence that the Veteran's back condition has caused him to regularly miss work and affected his daily life, including an inability to play with his children, the Board finds that this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected lumbar spine disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As a result of his service-connected disability, the Veteran has experienced pain, painful motion, limitation of motion, spasm, abnormal gait, and more recently incapacitating episodes. All of these types of symptoms are contemplated by the rating criteria-both the previous diagnostic codes and the revised diagnostic codes effective September 26, 2003. In creating the rating criteria for evaluating the spine, VA "developed evaluation criteria that are meant to take pain and other symptoms into account." 68 Fed. Reg. 51454, 51455 (Aug. 27, 2003). Additionally, sections 4.40 and 4.45 of the Rating Schedule provide that musculoskeletal system ratings contemplate functional loss and the factors of disability affecting the joints. The evaluations are all encompassing in that they have specific requirements such as a range of motion measurement, yet are broad in that they provide for a level of impairment based on functional loss. The Board notes that missing days of work is not a symptom, but a result of symptoms. This forms the basis of the Rating Schedule. "Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. Thus, the 20 percent rating in and of itself is a reflection of occupational impairment that may manifest in missed days work. Significantly, the "Director of [Compensation and Pension] has been delegated the authority to draft the rating schedule, based 'as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.' . . . The Director of [Compensation and Pension]'s expertise is in determining the average earning capacity impairment due exclusively to the service-connected disability." Anderson v. Shinseki, 22 Vet. App. 423, 431 (2009) (Schoelen, J. concurring). Thus, any occupational impairment, such as missed days of work, is taken into account by the Rating Schedule developed by those with the expertise in determining such impairment. The effect on the Veteran's family life is contemplated in a similar manner. The inability to play with children is not a "symptom" set forth in any portion of the Rating Schedule, yet it is a result of the same symptoms that cause missed work, e.g., pain, painful motion, and limitation of motion. Thus, it is a result contemplated by the rating criteria as it is based on the same symptomatology. Accordingly, the Board finds that functional impairment due to lumbar spondylosis with degenerative disc disease that is compounded by missing work and an inability to play with children is a disability picture that is considered in the current schedular rating criteria. Therefore, the Board determines that the Veteran's complaints that his back condition has caused him to regularly miss work and affected his daily life, including an inability to play with his children, have been considered under the Rating Schedule. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an evaluation in excess of 20 percent for lumbar spondylosis with degenerative disc disease is denied. REMAND As noted previously, the AMC granted service connection for radiculopathy of the right lower extremity in the June 2013 rating decision. A 10 percent rating was awarded effective September 5, 2012. In September 2013, the Veteran filed an NOD with the decision by which he indicated he was seeking an earlier effective date for the award of service connection. Previously, in the August 2013 brief, the Veteran's representative also indicated that the radiculopathy was diagnosed earlier. A statement of the case (SOC) is required when a claimant files an NOD with a determination. 38 C.F.R. § 19.26 (2013). To date, no SOC has been furnished regarding the issue of entitlement to an effective date earlier than September 5, 2012, for the award of service connection for radiculopathy of the right lower extremity, or at least no SOC has been associated with the Veteran's paper claims files before the Board or the Virtual VA file. Because the NOD placed the issue in appellate status, the matter must be remanded for the originating agency to issue an SOC as to the issue of entitlement to an effective date earlier than September 5, 2012, for the award of service connection for radiculopathy of the right lower extremity. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, this case is REMANDED to the RO or the AMC in Washington, D.C., for the following action: The RO or the AMC should issue a statement of the case to the Veteran and his representative on the issue of entitlement to an effective date earlier than September 5, 2012, for the award of service connection for radiculopathy of the right lower extremity. The Veteran should be informed of the requirements to perfect an appeal with respect to the new issue. If the Veteran perfects an appeal with respect to this issue, the RO or the AMC should ensure that all indicated development is completed before the appeal is forwarded to the Board. No action is required of the Veteran until he is otherwise notified by VA, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs