Citation Nr: 1333658 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-18 122 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of compression fracture of the thoracic spine with retained foreign bodies prior to July 12, 2005, and an initial rating in excess of 20 percent from that date. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from August 1994 to September 1996. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2006 rating decision, which granted service connection for residuals of compression fracture of the thoracic spine with retained foreign bodies and awarded a 10 percent rating effective May 29, 2003 (the date the Veteran's claim was received). The Veteran disagreed with the initial rating, and during the course of the appeal, the RO awarded an increased rating, to 20 percent, effective July 12, 2005 in a May 2009 rating decision. The Veteran continued his appeal. The Board must note that in reviewing this case the Board has reviewed the Veteran's claims file, which is on a secure "Virtual VA" system to insure a total review of the evidence. The whole case is now within virtual VA. In June 2007, the Veteran testified at a Travel Board hearing held at the RO. A transcript of the hearing has been associated with the Veteran's claims folder. Unfortunately, the judge who conducted that hearing has since retired from the Board. In April 2012, the Board sent the Veteran a letter informing him of this and asking him if he wished to attend another hearing before a Veterans Law Judge who would render a determination in his case. He indicated that he would, and in March 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded this case for additional development in January 2010, in February 2012 to provide the Veteran another hearing before the Board, and in June 2012 for remedial compliance and additional evidentiary development. Further evidentiary development was ordered in April 2013. The directed development has been completed and the RO readjudicated the case giving specific consideration to the regulations in effect at the time the Veteran's claim was received and those regulations which were revised during the course of his appeal, and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to July 2005, the evidence of record does not show limitation of motion in the Veteran's back; and since July 2005 the Veteran has been shown to have moderate limitation of motion in his back that has consistently been shown to be limited to no less than 35 degrees of forward flexion even contemplating functional impairment from factors such as pain and lack of endurance. 2. The Veteran does not have spinal ankylosis and has not for the duration of his appeal. 3. The Veteran was not prescribed bed rest for at least two weeks in any year prior to July 2005, and has not been prescribed bed rest for at least four weeks during any twelve month period since 2005. 4. The weight of the evidence makes it less likely than not that the Veteran has had a separate neurologic disability as a result of his service connected back disability at any point during the course of his appeal. 5. Prior to July 2005, the evidence did not show a lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; and following July 2005, the evidence has not shown a severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. 6. The Veteran has multiple retained foreign bodies in his back which constitute a moderate muscle disability of the thoracic spine. 7. Radiographic evidence shows that the Veteran had a compression fracture in his thoracic spine that was found to be the result of his military service. CONCLUSIONS OF LAW 1. Criteria for an initial rating in excess of 10 percent for residuals of compression fracture of the thoracic spine with retained foreign bodies prior to July 12, 2005, and an initial rating in excess of 20 percent from that date have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5285-5293 (2003), DC 5237 (2013). 2. Criteria for a separate 10 percent rating for a compression fracture of the thoracic spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5285 (2003) 3. Criteria for a separate 10 percent rating for a muscle injury involving retained foreign bodies have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.73, Diagnostic Code 5320 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. In this case, the Veteran is service connected for a back disability that resulted from a grenade being accidently dropped too close to his position during a live fire drill. The grenade exploded, lodging shrapnel in the Veteran's back, several pieces of which are still embedded in his back. A compression fracture of the thoracic spine was also incurred during service. Service connection was granted by a September 2006 rating decision, which assigned 10 percent rating effective May 29, 2003 (the date the Veteran's claim was received). The Veteran disagreed with the initial rating, and during the course of the appeal, the RO increased his rating to 20 percent, effective July 12, 2005. The Veteran continued his appeal. The Veteran's rating is assigned under Diagnostic Codes 5320-5237. Turning to the applicable Diagnostic Codes, a back disability can be rated in several ways, including limitation of motion, neurologic impairment, fracture residuals, incapacitating episodes, and on impairment from a strain. A revised rating schedule for disabilities of the spine became effective on September 26, 2003. See 68 Fed. Reg. 51454-51458 (August 27, 2003). Amendments to regulations cannot be construed to have retroactive effect unless their language requires such a result. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003) (citing Landgraf v. USI Film Prods., 511 U.S. 244 (1994)). However, there is no such language in the amendments to the regulations at issue in this case. Consequently, the Board has considered whether an increased evaluation may be warranted under either the old or new version of the schedule for rating disabilities of the spine; but recognizes that application of the newer regulations can be no earlier than the effective date of the change. As noted, the Veteran currently receives a 10 percent rating from 2003 to until July 12, 2005 and then a 20 percent rating thereafter. As will be discussed, there is very limited information in the claims file prior to 2005 regarding the condition of the Veteran's back disability. In January 2004, the Veteran wrote that for the past year he had been having trouble with back spasms fatigue and sharp pain. He reported being prescribed physical therapy and some pain killers for his back. The July 2005 effective date was assigned as of the date of the first record of treatment for the Veteran's back during his appeal period. The Board will first consider impairment from incapacitating episodes of intervertebral disc syndrome. Intervertebral disc syndrome (preoperative or postoperative) is evaluated either on the total duration of incapacitating episodes over the past 12 months under DC 5293, or by combining separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation, under 38 C.F.R. § 4.25. For intervertebral disc syndrome manifested by incapacitating episodes having a duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is assigned; with a total duration of at least two weeks but less than four weeks during a 12 month period, a 20 percent rating is assigned; with a total duration of at least four weeks, but less than six weeks, during the past 12 months, a 40 percent evaluation is assigned; with a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is assigned. An incapacitating episode is defined by the regulations 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. In June 2006, the Veteran underwent a VA examination at which the examiner noted that he had not experienced any incapacitating episodes during the previous 12 months. The Veteran also did not report any prescribed bed rest prior to this date. This is not to say that he was not having problems with his back during this time, but rather that the evidence does not show a medical professional ordering bed rest. Bed rest has been prescribed on a number of occasions during the course of the Veteran's appeal. For example, at a VA examination in February 2009, the examiner observed that in the calendar year of 2008, the Veteran had lost 8 calendar work days secondary to pain and spasms that were treated to his spinous problems of a compression fracture that were incapacitating to the point where he was unable to perform with ease any daily activities. In November 2009, the Veteran testified at a hearing before the Board that he had lost 160 hours of work over the previous two years, and 81 hours in the current year. He estimated that he experienced 3-4 weeks of flare-ups per year last 1-4 days. He stated that his doctor authorized bed rest for those periods. He recalled being put on bed rest approximately twice in the past year. He stated that the longest he had been out in one stretch was four days. On his job, the Veteran stated that he stood for approximately 4-5 of the 9 hours with sitting mixed in. Bed rest was documented as having been prescribed from January 2-7, 2008, and from July 9-11, 2009 by Dr. G. Bed rest was also prescribed from March 4-7, 2009; and on February 20, 2010, Dr. G. prescribed bed rest for 5 days. In July 2010, the Veteran underwent a VA examination at which he reported missing work approximately 4 times a year for 3-4 days at a time when he required bed rest. This is consistent with his testimony to the Board. In January 2011, bed rest was prescribed for 3 days, and it noted that the Veteran had been under doctor's care from January 14-25 and was able to return to work/school on January 26, 2011. At a VA examination in July 2012, the Veteran stated that he was prescribed bed rest most recently in February 2011. The examiner concluded that there was no evidence of intervertebral disc syndrome. At his second Board hearing in March 2012, the Veteran testified that around 2005, he experienced approximately 3 to 4 incapacitating episodes of back pain per year forcing him out of work approximately 10 to 15 times a year (exceeding his sick leave allowance). As described, it is clear that the Veteran has been prescribed bed rest to treat his back disability during the course of his appeal, although it is unclear whether he actually has intervertebral disc syndrome. Regardless, as will be discussed, the Veteran has not been shown to have been prescribed bed rest with sufficient frequency to merit an increased rating. Prior to 2005, there is no record that bed rest was ever prescribed, much less that the two weeks of bed rest as would be required for a rating in excess of 10 percent. To the extent that the Veteran testified in 2012 that he was experiencing approximately 10-15 days of missed work in the 2005 timeframe and was prescribed bed rest on these occasions, the actual timing of the bed rest was not reported at the hearing, and in 2006 the Veteran actually denied having experienced any incapacitating episodes in the previous twelve months at a VA examination. The Board does not dispute that the Veteran has since 2005 been prescribed bed rest on a number of occasions, but the contemporaneous medical treatment records do not show any prescribed bed rest in the 2005 and before time frame. This evidence is found to have greater probative value since it was generated during the time frame in question and not in an effort trying to recall specific dates from an amorphous six year time period many years after the fact. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). Given that the first VA examination after the Veteran's claim was received found no incapacitating episodes of back pain in the previous year, the Board concludes that a rating in excess of 10 percent is not warranted based on incapacitating episodes prior to July 2005. To merit a rating in excess of the 20 percent the Veteran currently receives based on incapacitating episodes, it must be shown that he was prescribed bed rest for at least four weeks in a twelve month period. This too has not been shown. While a "week" is not defined in the regulations, a standard week would be seven days, while a work week would be approximately five for a government worker such as the Veteran. The Veteran did testify that there were times that he did not need a doctor's note on account of the fact that the back exacerbation that left him incapacitated either began during, or overlapped with a weekend. However, even using a five day work week as the measure, the fact remains that a 20 percent rating would not be warranted. At his first Board hearing in November 2009, the Veteran testified that he had lost 160 hours of work over the previous two years, and 81 hours in the current year. He estimated 3-4 episodes of flare-ups per year lasting 1-4 days for each episode. He stated that his doctor authorized bed rest for those periods. He recalled being put on bed rest approximately twice in the past year. He stated that the longest he had been out in one stretch was four days. At his second hearing, the Veteran stated that he was incapacitated (requiring bed rest) about 3 to 4 episodes a year forcing him out of work approximately 10 to 15 times a year. The Veteran has reported similar details at VA examinations, and the Board finds his testimony to be highly credible. However, taking the Veteran at his word, he was missing 10-15 days of work per year, which even using the greatest amount of time missed (15 days) would amount to approximately 3 weeks of incapacitating episodes, which is less than the four weeks that would be needed for a higher rating. As such, an increased rating is not warranted based on incapacitating episodes of intervertebral disc syndrome, based on the Veteran's own statements. Alternatively to incapacitating episodes, a back disability may instead be rated based on limitation of motion. Under the regulations in effect when the Veteran's claim was received, a 10 percent rating was assigned if limitation of motion of the dorsal spine was moderate, or severe; while a noncompensable rating was assigned if the limitation of motion was slight. 38 C.F.R. § 4.71a, 5291. 10, 20, and 40 percent ratings were assigned when limitation of motion of the lumbar spine was shown to be slight, moderate, or severe respectively. 38 C.F.R. § 4.71a, 5292. Higher ratings were available for ankylosis of the spinal segments, but there is no allegation of ankylosis in this case. The regulations cautioned that ratings should not be assigned for more than one segment by reason of involvement of only the first or last vertebrae of an adjacent segment. The words "slight," "moderate," and "severe" were not defined in the VA Schedule for Rating Disabilities in effect when the Veteran filed his claim. Rather, all the medical evidence was to be evaluated to determine the appropriate rating that would compensate the Veteran for impairment in earning capacity, functional impairment, etc. Nevertheless, when the spinal regulations were revised in 2003, definitions of normal orthopedic movement were provided. While these measures are not binding on the old criteria, they are useful as guidance in determining the severity of a spinal injury. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Under the revised regulations, a 10 percent rating is assigned for a lower back disability when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or when there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; and a rating in excess of 40 percent is not available unless ankylosis is present. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The range of motion in the Veteran's back has been measured on several occasions during the course of his appeal. At a VA examination in June 2006, the examiner stated that ranges of motion were not applicable to the thoracic spine. As such, the first indication of the range of motion of the Veteran's back during the course of his appeal was at a VA treatment session in September 2007 when it was noted that he had full range of motion with forward flexion and extension. At a February 2009 VA examination, the Veteran demonstrated extension to 30 degrees; forward flexion to 80 degrees, with 15 degrees of bilateral twisting rotation range of motion; and 20 degrees lateral flexion. Each range of motion test produced with increased tenderness, pain and fatigue on the second and third attempts; and testing caused increased radiation of paresthesias of his lower extremities as well as muscle spasms. The examiner concluded that the Veteran had functional impairments in range of motion with repetitive use that did inhibit his current occupation. In August 2009, the Veteran began seeing a chiropractor, who noted that both passive and active ranges of motion of the thoracic and lumbar regions of the spine were still found to be restricted to a marked degree with pain and spasm, although the specific ranges of motion were not provided. Subsequent chiropractic visits continued to show diminished range of motion, although with some improvement, which is consistent with the Veteran's testimony that his chiropractor had helped his back. In November 2009, the Veteran testified at a hearing before the Board, asserting that his back had gotten progressively worse, such that it was causing problems standing and bending over. The Veteran stated that he had some limitation of motion in his back, but could not tell the exact degree. He believed that his back had become more severe since his last VA examination. The Veteran continued with chiropractic treatment. In March 2010, both passive and active ranges of motion of the thoracic and lumbar regions of the spine were found to be moderately decreased with pain and spasm. Later in March 2010, both active and passive range of motion in the thoracic and lumbar spinal regions remained moderately restricted with pain and spasm. At a third session in March 2010, passive and active ranges of motion of the lumbar spine remained mildly restricted, with pain and spasm; but active and passive ranges of motion of the thoracic region of the spine continued to be very restricted with pain and spasm. Similar findings were made in April 2010. In May 2010, active and passive ranges of motion of the thoracic and lumbar spinal regions were still found to be decreased, but only to a slight degree with pain and spasm, although the Veteran still reported pain 9/10. In July 2010, the Veteran underwent a VA examination at which he demonstrated forward flexion from 0 to 70 degrees with pain from 50 to 70 degrees; lateral flexion to the right 0 to 10 degrees, with pain from 0 to 10 degrees; lateral flexion to the left 0 to 20 degrees, with pain from 0 to 20 degrees; rotation to the right 0 to 20 degrees, with pain at 20 degrees; rotation to the left 0 to 20 degrees with pain at 20 degrees; and extension 0 to 10 degrees with pain from 0 to 10 degrees. With three repetitions there was no additional loss of function of the lumbar spine from pain fatigue weakness or lack of endurance. In April 2011, the Veteran wrote a letter in which he did not dispute the findings of the VA examination in terms of limitation of motion found. He acknowledged that he had been able to demonstrate forward flexion to 70 degrees after sitting in the waiting room for an hour and he agreed with the examiner's assessment that his back condition moderately affected his activities of daily and employment and that his condition was worsening. However, he felt that these findings did not adequately convey the impact that his disability had had on someone who had been active enough to enlist as an airborne soldier. He argued that his flexion would be reduced to less than 30 percent after standing to watch his kids at their baseball game for 30 minutes and he could not get loosened up until a good hour after waking up and taking 2-3 Tylenol 3s. He reported working the third shift, so he did not take out his frustration and anger out on his family because his back hurt in the morning. He suggested that if he had stood up for 30 minutes in that waiting room before my medical evaluation his forward flexion would have been closer to 15 degrees. The Veteran was subsequently provided with another VA examination in July 2012 at which his range of motion was generally shown to be reduced from what had been seen at prior examinations. Specifically, he demonstrated forward flexion from 0 to 50 degrees; extension from 0 to 20 degrees; right and left lateral rotation both from 0 to 30 degrees; and right and 1eft lateral flexion both from 0 to 10 degrees. After repetitive use times three, forward flexion decreased to 0 to 35 degrees because of pain; extension increased to 0 to 30 degrees; right lateral rotation is decreased to 0 to 20 degrees, 1eft lateral rotation decreased to 0 to 20 degrees both because of pain and not because of fatigue, weakness, lack of endurance, or any other identifiable factor. The right and 1eft lateral flexion were now 0 to 10 degrees to the right and increased to 0 to 15 degrees to the left. The examiner concluded that after repetitive use times three several of the range of motion were further decreased because of pain, but not because of fatigue, weakness, lack of endurance or any other identifiable factor. Turning to the regulations in effect at the time the Veteran's claim was received, the question is whether the range of motion in the Veteran's thoracic spine or lumbar spine is slight, moderate or severe. Prior to July 2005, when the Veteran's back rating was increased to 20 percent, there was little evidence presented as to the range of motion in his back. The first time the Veteran's back was actually assessed during his appeal was the VA treatment record in 2007 which showed full range of motion. The first VA examination concluded that limitation of motion was not applicable to the Veteran's thoracic spine and did not provide any range of motion testing. As such, the Board does not find any basis to support a rating in excess of 10 percent prior to July 2005 based on limitation of motion. Since 2005, there is no question that the range of motion in the Veteran's back has become limited. However, it has not been shown to cause such limitation of motion to warrant a rating in excess of 20 percent. As described above, the Veteran has consistently demonstrated forward flexion in excess of 30 degrees, even after repetitive motion testing which increased back pain. In fact, at no time during the course of his appeal has the Veteran be found to be limited to 30 degrees of forward flexion or less. The Board believes that such limitation of motion in the Veteran's lumbar spine is best described as moderate based on the medical evidence. The Board has given consideration to whether the Veteran's letter in which he acknowledged having been able to demonstrate significant range of motion in clinical tests at VA because he had been able to sit for an extended period prior to the tests, but explained that in the "real world" when standing around and watching, for example, a kid's game, his back would stiffen, and significantly limit his range of motion, such that he believed a finding of severe limitation of motion was warranted. VA attempted to replicate such limitation, by repetitively testing the Veteran's back at the 2012 VA examination, but even after the repetitive testing, the Veteran still demonstrated forward flexion from 0 to 35, undermining this contention. Again, the Board believes that this is representative of moderate limitation of motion. The Board notes that the revised regulations essentially define range of motion in excess of 30 degrees, but less than 60 degrees to be moderate. Moreover, in this case, the Board does not believe that the Veteran's limitation of motion should be classified as severe in that 35 degrees of forward flexion represents significant motion. While the medical evidence does support the conclusion that the Veteran's back is worsening in that his range of motion has been shown to diminish over time, it does not appear to have reached the point where it causes severe limitation of motion at this time. It is also noted that the Veteran testified that his job required him to stand for 4-5 of the 9 hour shift, with intermittent sitting. This would suggest that the limitation of motion is not severe at this time. In reaching the aforementioned conclusions, the Board has considered whether the Veteran's range of motion is more limited as a result of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Here, there is no question that the Veteran's back disability has caused pain and fatigue, which has restricted his overall motion. It is noted that the impact of a lowered threshold of fatigue will be largely attributed to the additional muscle rating which is assigned below, and therefore will not be given as much weight in the context of range of motion as such would constitute pyramiding (e.g. the rating of the same symptoms under multiple Diagnostic Codes). See 38 C.F.R. § 4.14. As discussed, pain has greatly limited the range of motion in the Veteran's back, as has repetitive motion. However, even after multiple attempts and in consideration of pain, the most limited the Veteran's forward flexion was ever shown to be was 35 degrees, which is greater than the 30 degree limit for a 40 percent rating. As noted the Board considers 35 degrees of forward flexion to constitute moderate limitation of motion. There is no dispute that the Veteran's back is painful and requires considerable medication. However, while the Veteran's back is painful, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not beyond that which was shown at the most recent VA examination. In finding the limitation of motion to be moderate, the Board notes that the Veteran's chiropractor did on several occasions use words such as "marked" or "very restricted". However, the chiropractor did not actually provide any specific measurements (using a goniometer) to quantify the Veteran's diminished range of motion. This is highly relevant as range of motion measurements were quantified at VA examinations both before and after the aforementioned chiropractic treatments, but on both occasions fell in the moderate range. As such, the Board does not believe a staged rating is warranted based on the chiropractor's findings. Accordingly, a 40 percent rating is denied based on range of motion. Under the regulations in effect when the Veteran filed his claim, Diagnostic Code 5285 provided that residuals of a fractured vertebra without cord involvement, but causing abnormal mobility and requiring the use of a neck brace would warrant a 60 percent rating. Here, the Veteran has been noted to have residuals of a compression fracture in his thoracic spine as a result of his military service, but there has been no indication that he has ever required a neck brace or had any cord involvement. As such, a compensable rating is not warranted under this Diagnostic Code. However, the regulations do provide that if a compensable rating is not warranted that the disability be rated in accordance with definite limitation of motion or muscle spasm, adding 10 percent for demonstrable deformity of the vertebral body. As noted above, the Veteran's back disability has been rated at 10 and 20 percent during the course of his appeal based on the limitation of motion in his back. Given the showing of a vertebral fracture, the Board concludes that a separate 10 percent rating should be assigned pursuant to Diagnostic Code 5285 in addition to the ratings based on limitation of motion, and to that extent the Veteran's claim is granted. The revised regulations also provide that any neurologic impairment should be rated separately and then combined with the orthopedic rating. Here, the Veteran does not appear to have had a separate neurologic disability at any point during the course of his appeal. In June 2006, the Veteran underwent a VA examination at which sensory-and motor examinations of the dorsal spine were normal. The Veteran denied any bowel or bladder impairment or any breathing difficulty during the previous 12 months. A VA treatment record in September 2007 noted that the Veteran did not have any radiation of back pain. In February 2009, the Veteran underwent a VA examination at which deep tendon reflexes of his patella area revealed a right patella reflex graded 1/4 and a left patella reflex graded 4/4, the Veteran did not have any atrophy or changes in muscle tone. A VA treatment record in May 2009 noted that the Veteran did not have any radiation of back pain. In August 2009 the Veteran began seeing a chiropractor, who observed that the Veteran's use of his hands on his thighs or on the arms of the chair to rise, suggested the possibility of sciatica. The chiropractor diagnosed thoracic or lumbosacral neuritis or radiculitis, lumbago. However, no actual neurologic testing appears to have been conducted to arrive at this diagnosis, and subsequent neurologic examinations have not led to the diagnosis of any specific neurologic disability. For example, at a VA examination in July 2010, the Veteran reported daily pain in the mid-lower back, with pain radiating down the middle of the back, but the pain did not radiate to the sides or down his legs, providing highly probative evidence from the Veteran against this claim. In July 2012, the Veteran underwent a VA examination at which a neurological examination revealed 5/5 strength bilaterally in the lower extremities; reflexes were 3+ bilaterally in the knees, 2+ in the ankles, there was normal sensation to light touch and temperature sensation in the lower extremities. Straight leg raises were negative bilaterally. There was no evidence of any muscle atrophy. The Board acknowledges that the chiropractor suggested that the Veteran might have some neurologic impairment, but given the fact that no separate neurologic disability appears to have been diagnosed by several additional examinations at which specifically neurologic testing was conducted, the Board finds that a separate neurologic disability has not been present at any time during the course of the Veteran's appeal. As such, a separate compensable rating is not warranted based on neurologic impairment. Additionally, a rating could be assigned under 38 C.F.R. § 4.71a, DC 5295, a 10 percent rating is assigned for a lumbosacral strain with characteristic pain on motion; a 20 percent rating is assigned for a lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; and a 40 percent rating was assigned for a severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. Here, prior to 2005, there is no evidence of record to show for a lumbosacral strain with muscle spasm on extreme forward bending, or loss of lateral spine motion in standing position. Therefore, a rating in excess of 10 percent cannot be awarded under this Diagnostic Code for that timeframe. Since 2005, there is no showing of listing of the whole spine to the opposite side, or positive Goldthwaite's sign. Moreover, the range of motion as discussed above has been generally consistent throughout the course of the Veteran's appeal with moderate limitation of motion, and therefore would not be consistent with marked limitation of forward bending. Osteoarthritic changes have also not been documented. The chiropractor did use the term "marked" on one occasion to describe the limitation of motion in the Veteran's back, but as discussed above, the objective measurements of the limitation of motion at prior and subsequent VA examinations did not support such a classification, as the Veteran's limitation of motion was best described as moderate based on the objective evidence of record. As such, a 40 percent rating is not warranted under this Diagnostic Code. On a concluding note with regard to the Veteran's back disability, the Board has considered whether additional staged ratings are warranted. As noted, the Veteran has experienced flare-ups of back pain that have caused him to miss 10-15 days per year of work. However, as discussed above, the rating criteria does specifically account for such limitations, providing a Diagnostic Code that specifically addresses incapacitating episodes. Therefore, additional staged ratings are not warranted. Nevertheless, as described an additional 10 percent rating is assigned for the Veteran's compression fracture residuals. In a September 2013 brief, the Veteran's representative argued that the Veteran's service connected back disorder was rated under the criteria for back injury, but no separate accommodation/compensation had been provided for the retained foreign bodies, which are not shown to be an element for consideration in the rating criteria for spinal injuries. The representative argued that the retained bodies should be separately compensated under its own diagnostic code, pursuant to Esteban v. Brown, 6 Vet. App. 259 (1994) (where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps). Having reviewed the symptoms attributable to the back and muscle impairments, the Board concurs that this argument has a great deal of merit and the assignment of separate ratings in this case would not constitute pyramiding. The regulations provide that when considering the residuals of a muscle injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41. The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Under the criteria for rating muscle injuries, disabilities are characterized as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56. An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56 (a). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). A slight disability of the muscles anticipates a simple muscle wound without debridement or infection. There should be a service department record of superficial wound with brief treatment and return to duty. There should also be healing with good functional results, and no cardinal signs or symptoms of muscle disability. Additionally, there should be objective findings of minimal scarring and no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. A moderate disability of the muscles anticipates a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. There should be a history of in-service treatment for the wound with a record of cardinal symptoms of muscle disability particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings should include entrance and (if present) exit scars that are small or linear and indicate short track of missile through muscle tissue; there should also be some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2). A moderately severe disability of the muscles anticipates a through and through or deep open penetrating wound by a small high velocity missile or a large low- velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound with a record of cardinal symptoms consisting of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement, and, if present, some evidence of an inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating track of missile through one or more muscle groups. There should also be indications on deep palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance, when compared with the sound side, should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The history of the Veteran's shell fragment wound dates to his military service when a live grenade was accidentally dropped too close to his location during a live fire exercise in September 1995. The grenade detonated causing a blast injury to the Veteran's left hand as well as multiple shrapnel wounds to the left chest and back resulting in a pneumothorax on the left side that required a chest tube insertion by the General Surgery Service. A CT scan was obtained that night which demonstrated no vascular injury. The Veteran was hospitalized for several days and underwent surgical debridement (although the vast majority of the treatment appears to have been directed to the Veteran's finger). The Veteran was discharged from the hospital several days later. It is unclear the extent to which the Veteran's back needed debridement, as the focus of the hospital treatment was on his finger. Nevertheless, the record here clearly shows that the Veteran has metallic fragments retained in muscle tissue, which makes the muscle injury more than slight. A moderate muscle rating also contemplates historical evidence of cardinal symptoms of muscle disability particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Here, the Veteran has complained of fatigue throughout the course of his appeal. In January 2004 he reported trouble with back spasms and fatigue. In his October notice of disagreement, the Veteran stated that he was experiencing constant fatigue in the spine and could only stand still for approximately 15 minutes before his back would begin to hurt. In his May 2007 substantive appeal, the Veteran stated he had deep penetrating wounds from 3 pieces of shrapnel still embedded in his back, and he had 10 years of medical records showing consistent complaint of loss of power weakness lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. Treatment records further document the Veteran's lowered threshold of fatigue. For example, at a VA examination in February 2009, repetitive motion testing triggered increased fatigue on the second and third attempt. At a VA examination in July 2010, the Veteran reported that he fatigued very easily when standing, sitting, or walking for more than a few minutes at a time. As such, the Board concludes that the objective findings do show lowered threshold of fatigue which is consistent with a moderate muscle disability. The evidence does not support a finding of a "moderately severe" muscle injury. The history of the Veteran's injury does not show prolonged infection, sloughing of soft parts, or intermuscular scarring. There was also no history of prolonged hospitalization. As noted, the Veteran was hospitalized for several days for the treatment of his finger, but the shrapnel wounds in his back were largely an afterthought of the treatment at that time, as treatment of the finger was the most pressing medical problem. The Veteran was given a sick slip in March 1996 for back pain, shrapnel excision, but the only comment was return to duty. Additionally, while the Veteran has experienced fatigue, he has not shown many of the cardinal signs of muscle disability including impairment of coordination, uncertainty of movement, or inability to keep up with work requirements. The Veteran remains gainfully employed, and while he misses some time on account of his service connected back disability, it is not been shown to prevent him from completing his work requirements. Additionally, the work limitation was considered in the rating provided for the orthopedic impairment of his back, and therefore will not be also attributed to the muscle rating. See 38 C.F.R. § 4.14. There has also not been any showing on deep palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles. Given the finding that the Veteran's retained foreign bodies constitute a moderate muscle disability, the Board now turns to the question of which muscle group is implicated. The Veteran submitted a July 2005 letter from a Dr. Stein stating that x-rays showed evidence of three foreign bodies, one at the T8 level and two at the T10 level more posterior than the previous one. In April 2006, x-rays of the thoracic spine showed two small pieces of metallic density within the posterior aspect or the lower thoracic spine on the left side and upper abdomen on the left side representing small pieces of, shrapnel as mentioned previously. The impression was negative x-rays of the thoracic spine with two small pieces of metallic foreign body noted in the soft tissues next to the T8 vertebra on the left side. There was also a small metallic foreign body noted next to the left side at T17 vertebra. At a VA examination in June 2006, the examiner diagnosed the Veteran with a dorsal strain with three foreign bodied from T8 to T10. Diagnostic Code 5320 for Muscle Group XX governs the postural support of body, as well as extension and lateral movements of spine. The spinal muscles included are the sacrospinalis (erector spinae and its prolongationsin thoracic and cervical regions). For impairments of the cervical and thoracic region, a moderate muscle disability is assigned a 10 percent rating, a moderately severe muscle disability is assigned a 20 percent rating, and a severe muscle disability is assigned a 40 percent rating. To the extent another muscle group would be considered to be more appropriate, it is noted that a moderate muscle injury in the thoracic spine is rated at 10 percent under all of the potentially applicable Diagnostic Codes. As such, a separate 10 percent rating is assigned for a moderate muscle injury caused by residual foreign bodies in the Veteran's thoracic spine. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially 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, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, there is no question that the Veteran's service connected back disability causes a number of impairments. However, it is not found that he experiences anything unique or unusual as a result of his back disability, to include as a result of the residual shell fragments. As described above, the schedular rating criteria specifically contemplated the full range of symptoms and interactions complained of by the Veteran in assigning a comprehensive rating. The Board acknowledges that the Veteran's service connected back disability causes limitation of motion, pain, lack of endurance, and these symptoms interfere with work and his activities of daily living (in this regard, it is important for the Veteran to understand that if it did not, there would be no basis for the current evaluations). However, the schedular rating criteria, addressed incapacitating episodes of back pain that have interfered with his work; the criteria also addressed pain and lack of endurance both in the context of impairing range of motion and in the context of the retained foreign bodies. A separate rating was also applied for the compression fracture residuals. As such, the Board is satisfied that the schedular rating criteria reasonably describe the claimant's disability level and symptomatology. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here, the Veteran continues to be gainfully employed, and he has not alleged that he is unemployable on account of his service connected back/shrapnel disability. Thus, the Board finds that Rice is inapplicable. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letters dated in April 2004 and May 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The May 2008 letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to content. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. In any event, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA treatment records have been obtained. Additionally, the Veteran testified at two hearings before the Board. In the April 2013 remand, the Board insisted that efforts be made to obtain any VA treatment records from May 2003 to the present. VA undertook this development, but as explained in the June 2013 supplemental statement of the case, based on the available evidence, the RO concluded that the Veteran received his medical treatment from private facilities between May 2003 and September 2007; and noted that those private treatment records were of record. As such, it does not appear that any relevant records exist which have not been obtained. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the recent VA examinations to be thorough and adequate in that they provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER In addition to the initial 10 percent rating for the Veteran's back disability prior to July 12, 2005, and the initial 20 percent rating from July 12, 2005, a separate 10 percent rating for residuals of a compression fracture to the thoracic spine is granted, subject to the laws and regulations governing the award of monetary benefits. A separate 10 percent rating for a muscle injury involving the retained foreign bodies in the Veteran's thoracic spine is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs