Citation Nr: 1333679	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  04-27 471	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to an initial evaluation in excess of 40 percent for lumbar spine spondylosis at L4 and spondylolisthesis at L4-5.


ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1991 to June 1995 and from August 1996 to November 2001.

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  In that rating decision, the RO granted service connection for lumbar spine spondylosis at L4 and spondylolisthesis at L4-5 and assigned a 10 percent evaluation effective from November 2, 2001.  The Veteran appealed the assigned evaluation.  Jurisdiction was subsequently transferred to the RO in Togus, Maine.

During the pendency of the appeal, in a May 2009 rating decision, the RO increased the Veteran's initial evaluation for his lumbar spine disability to 40 percent, effective from November 2, 2001.  However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).

The Board notes that, pursuant to his request, the Veteran was scheduled for a February 2011 hearing before the Board at the RO; however, he failed to report for that hearing.  As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn, and the Board will proceed with its review on the present record.  See 38 C.F.R. § 20.704(d), (e).

In May 2011, December 2012, and May 2013, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further development.  

In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case.  A review of the documents in the Virtual VA paperless claims file reveals VA treatment records that are relevant to the issue on appeal, but they were of record and considered by the RO in a July 2013 supplemental statement of the case (SSOC).


FINDINGS OF FACT

1.  During the pendency of the appeal, the Veteran's lumbar spine disability has not been productive of unfavorable ankylosis of the entire thoracolumbar spine.

3.  The Veteran is already service-connected and separately rated for neuropathy of the right and left lower extremities, and he does not have any other separate neurological disability distinct from his chronic low back pain.  


CONCLUSION OF LAW

The criteria for an initial disability evaluation in excess of 40 percent for lumbar spine spondylosis at L4 and spondylolisthesis at L4-5.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5240, 5292, 5295 (2001- 2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability.  38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the Veteran is challenging the initial evaluation assigned following the grant of service connection for his lumbar spine disability.  In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Id. at 490-91.  See also VAOPGCPREC 8-2003 (December 22, 2003).  Thus, VA's duty to notify has been satisfied in this case.

The duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records and all identified and available post-service medical records, including Social Security Administration (SSA) records, are in the claims file and were reviewed by both the RO and the Board in connection with the claim.  The Veteran has not identified any other outstanding records that are pertinent to the issue being decided herein.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the Veteran was scheduled for a VA spine examination in June 2013 in connection with his increased rating claim, in accordance with the Board's May 2013 remand directives.  Specifically, the Board noted that the Veteran reported having urinary hesitancy during a December 2012 VA pain consultation, and pursuant to the rating schedule, associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be separately evaluated under an appropriate diagnostic code.  Therefore, the VA examiner was requested to identify any and all neurologic abnormalities associated with the Veteran's lumbar spine disability and to specifically address the Veteran's complaint of urinary hesitancy in December 2012 and state whether there is any objective evidence of bladder impairment related to his lumbar spine disability.

Nevertheless, the Veteran did not appear for the scheduled examination in June 2013.  There is no other indication that the Veteran showed or attempted to demonstrate good cause for his failure to report.  In the May 2013 remand and in a May 2013 notification from the Appeals Management Center (AMC), the Veteran was advised that, under 38 C.F.R. § 3.655, when a claimant, without good cause, fails to report for an examination or re-examination, the claim is rated based on the evidence of record.  He was also provided examples of good cause, including, but not limited to, illness or hospitalization, death of an immediate family member, etc.  The May 2013 remand and letter were not returned as undeliverable, and the Veteran is therefore presumed to have received them.  See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (presumption of regularity applies to VA mailings). 

Additionally, the AMC issued a supplemental statement of the case (SSOC) in July 2013, which noted that the Veteran had failed to report for the examination.  However, the Veteran did not dispute that finding, nor did he request that the examination be rescheduled or provide good cause.  As the Veteran was notified of the VA examination and failed to report for it without good cause, the provisions of 38 C.F.R. § 3.655 are for application.

In Turk v. Peake, 21 Vet. App. 565, 570 (2008), the Court held that an appeal for a higher initial rating is an "original compensation claim" and not a "claim for increase" for purposes of 38 C.F.R. § 3.655(b); therefore, the initial rating issue will be rated upon the evidence of record.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran.

VA has further assisted the Veteran throughout the course of this appeal by providing him with a Statement of the Case (SOC) and various SSOCs that informed them of the laws and regulations relevant to the Veteran's claim.  The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim, and he did, in fact, participate.  Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 

All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained, and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012).

Laws and Regulations

As discussed above, normally, when an examination is scheduled in conjunction with a claim for increase and a veteran fails to report for the examination, the claim shall be denied.  38 C.F.R. § 3.655(b).  However, this is an initial rating claim where the claim for increase has been on appeal since the claim for service connection was granted.  Therefore, in order to afford the Veteran every consideration with respect to the present appeal, the Board will consider the Veteran's claim for an initial evaluation in excess of 40 percent for his service-connected lumbar spine disability based on the evidence of record, as if it was an original compensation claim.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, as in this case, the present level of the veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Similarly, where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45 (2012).  VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated  functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

Recently, the Court clarified that, although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  

The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups.  The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered.  However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).

The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2012). 

The Veteran's service-connected lumbar spine disability is currently assigned a 40 percent disability evaluation effective from November 2, 2001, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5240.  

The Board notes that during the pendency of this appeal, VA issued new schedular criteria for rating intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, which became effective September 23, 2002.  VA subsequently amended the rating schedule again for evaluating disabilities of the spine, contained in 38 C.F.R. § 4.71a, which became effective on September 26, 2003.  The new criteria for evaluating service-connected spine disabilities are codified at newly designated 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243.  However, the Board notes that consideration under the revised schedular criteria should not be undertaken before such criteria became effective.  The effective date rule contained in 38 U.S.C.A. § 5110(g) prevents the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law.  That is, for any date prior to September 23, 2002, and September 26, 2003, neither the RO nor the Board could apply the revised rating schedule. 

When regulations are changed during the course of the Veteran's appeal, the criteria that are to the advantage of the Veteran should be applied.  However, if the revised regulations are more favorable to the Veteran, then an award of an increased rating based on a change in law may be granted retroactive to, but no earlier than, the effective date of the change.  See VAOPGCPREC 3-2003, 65 Fed. Reg. 33422 (2000).

Under the old regulations, Diagnostic Code 5292 provided for ratings based on limitation of motion of the lumbar spine.  A 20 percent disability evaluation was assigned for moderate impairment.  When such limitation of motion was severe, a 40 percent rating was warranted.  The maximum rating under Code 5292 was 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). 

Under Diagnostic Code 5295, a 20 percent rating was contemplated for a lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.  A 40 percent disability evaluation was warranted for a severe lumbosacral strain with listing of the whole spine to 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.  A 40 percent disability evaluation represents the maximum schedular rating available under Diagnostic Code 5295. 

Under Diagnostic Code 5293, a 20 percent disability evaluation was contemplated for moderate intervertebral disc disease with recurring attacks.  A 40 percent disability evaluation was assigned for severe intervertebral disc syndrome with recurring attacks with intermittent relief.  A 60 percent disability evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 

In addition, as previously noted, the rating criteria for Intervertebral Disc Syndrome were revised effective September 23, 2002.  Under the revisions to Diagnostic Code (DC) 5293, 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 38 C.F.R. § 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 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 weeks.  A 40 percent disability evaluation was contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  The maximum 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. See Amendment to Part 4, Schedule for Rating Disabilities, Effective September 23, 2002; 67 Fed. Reg. 54345 -54349 (August 22, 2002). 

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1).  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.  Note (2).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id.  Note (3). 

On September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 68 Fed. Reg. 166, 51454-51458 (August 27, 2003).  Diagnostic Code 52401 indicates that ankylosing spondylitis should be evaluated under the General Rating Formula for Disease and Injuries to the Spine.  Diagnostic Code Note 6 further provides that the thoracolumbar and cervical spine segments should be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  The thoracolumbar segment of the spine includes the thoracic and lumbosacral spine. 

Under the General Rating Formula for Diseases and Injuries of the Spine, 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 disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees but not greater than 235 degrees; 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 disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  These criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243.

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, General Rating Formula, Note (1).

For purposes of VA compensation, the regulations define normal range of motion for the thoracolumbar spine as 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation.  See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V.

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, and a 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.  A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.  Id.  Note (2). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).


Factual Background

During service, a February 2001 VA magnetic resonance imaging (MRI) study was performed following the Veteran's complaints of low back pain with leg numbness and tingling.  X-rays showed L5-S1 narrowing and spondylolisthesis.  The MRI showed a small focal central disc protrusion at the L4-5 level; a mild broad based bulge at the L4-5 level with a minimal bulge at the L3-4 level; minimal grade 1 spondylolisthesis at the L4-5 level; and findings compatible with multiple disc dessication.

In a May 2001 Medical Evaluation Board report, included in the Veteran's service treatment notes, the examining medical officer noted the Veteran's chief complaints were low back and right lower extremity pain following an injury from lifting and carrying a buffer during service.  The physician noted that the pain had gradually worsened and that the Veteran failed to respond to medications, activity restrictions, and physical therapy.  The Veteran reported that most of his pain was localized to his back, but he had right lower extremity pain and experienced occasional bilateral lower extremity numbness and weakness, particularly when the back pain was severe.  The physician noted that an electromyography (EMG) study demonstrated chronic right L3 and L4 radiculopathies on the right side; radiographic findings showed bilateral L4 spondyloses with a grade 1 L4-5 spondylolisthesis; and a lumbar spine MRI study showed multilevel disc degeneration and L4-5 spondylolisthesis.  Examination of the lumbar spine showed some diffuse tenderness to palpation and limitation of flexion to 40 degrees, extension to 5 degrees, and lateral bending to 20 degrees bilaterally.  Neurologic examination revealed some decreased pin prick sensation in the right L5 distribution and 4+ out of 5 strength of the right extensor hallucis longus.  The physician noted that the Veteran was markedly limited by his L4-5 spondylolisthesis and the low back and lower extremity pain.  He was unable to perform the vast majority of the physical duties of his military occupational specialty (MOS), and the medical officer opined that no significant improvement was anticipated in the Veteran's foreseeable future.  He also opined, "Although surgery for this condition might be of some benefit, the overwhelming likelihood is that he would be left with significant permanent physical limitations which would be incompatible with his remaining on active duty."  A permanent profile of "3" was assigned, and the Veteran was found to not meet the Army's retention standards.

A July 2001 service treatment note showed that the Veteran underwent a multilevel discogram at L3-4 and L4-5.  The Veteran reported no radicular symptoms, and he noted that there was no provocation of his typical pain.  The physician noted that the Veteran had spina bifida occulta at the L5 level, which was extremely narrowed.  It was impossible to perform a discogram at L5 secondary to the narrowing and the Veteran's high iliac crests.  The diagnosis was chronic low back pain with radiculopathy.  

During a July 2001 VA examination, the Veteran complained of constant, "horrible," and "excruciating" low back pain that flared with increased walking, standing, and swimming.  He reported symptoms of pain, weakness, stiffness, swelling, inflammation, fatigue, and a lack of endurance.  He stated that he was unable to walk without the assistance of a cane, and he indicated that Lortab offered mild relief of the pain.  The examiner noted that a February 2001 MRI study showed findings consistent with a small, focal central disc protrusion at L4-5, a mild broad-based bulge at L4-5, a minimal bulge at L3-4, and minimal grade1 spondylolisthesis at L4-5.  May 2001 nerve conduction studies showed mild, chronic L3-4 radiculopathy on the right.  An examination revealed that the Veteran's gait was abnormal.  He shuffled when he walked and used a cane for assistance.  An examination of the lumbar spine revealed no muscle spasms or tenderness.  The examiner noted that the Veteran appeared to have much difficulty getting on and off of the exam table, and he grunted and groaned aloud, but he had no difficulty sitting up from a supine position.  Lumbar spine range of motion testing revealed flexion from 30 to 95 degrees with pain at 30 degrees, extension from 20 to 35 degrees with pain at 20 degrees, right lateral flexion from 25 to 40 degrees with pain at 25 degrees, left lateral flexion from 25 to 40 degrees with pain at 25 degrees, right rotation from 35 to 35 degrees, and left rotation from 35 to 35 degrees.  The Veteran reported that pain and weakness limited his range of motion.  A neurologic examination revealed a normal lower extremity sensory and reflex examination and grossly normal motor function.  A lumbar spine x-ray was negative.  The diagnosis was minimal grade 1 spondylolisthesis at L4-5, a small focal disc protrusion at L4-5, a mild broad-based bulge at L4-5, and mild right radiculopathy.  The examiner reported that the Veteran's complaints and range of motion "seemed grossly over-exaggerated for physical findings and results of the [MRI] scan and nerve conduction studies, etc."  He opined that the Veteran's lumbar spine disability should have only a mild effect on his occupation and daily activities.  

August 2001 VA x-rays of the lumbar spine showed anterolisthesis of L5 with respect to S1; mild anterior wedging of T11, which may have represented a compression fracture versus a normal variant; and disc space narrowing at L4-5 and L5-S1.  Three days later, VA x-rays showed essentially unchanged radiographs of the lumbar spine with spondylolysis at L5 resulting in a persistent, unchanged mild anterolisthesis of L5 on S1.

In a December 2001 VA treatment note, the Veteran reported that he treated his chronic back and hip pain with morphine.  He indicated that he had pain at the L4 level, mainly on the right side of his back, with radiation down both legs.  

In a January 2002 Social Security Administration (SSA) disability determination report, the Veteran contended that he was unable to work due to a severe back ache, muscle spasms, and lower extremity weakness.  During the examination, the Veteran's wife indicated that the Veteran was on a high dose of narcotics for pain relief, including morphine.  The examiner noted that she answered most of the questions during the examination because the Veteran was falling asleep and appeared sedated from his narcotics.  The Veteran's back pain was unresponsive to medications and other modalities of treatment.  He was confined to bed most of the time, and he was hardly ever out of his wheelchair.  He was unable to stand because of intense back pain and muscle stiffness.  The Veteran rated his constant pain 8 out of 10 in severity.  He related that the high doses of narcotics helped him to "get through the day."  He required assistance to get out of bed and with all of his activities of daily living.   During the examination, the Veteran screamed in pain when he tried to get out of the wheelchair.  He had to put his weight on his upper extremities when he tried to move.  He was unable to get up onto the examination table.  A neurological examination showed that the Veteran's higher functions, cranial nerves, motor system, and sensory reflexes were within normal limits.  A musculoskeletal examination showed weakness of the lower extremities with 4 out of 5 muscle strength in both legs.  His reflexes were bilaterally symmetrical.  Thoracolumbar spine range of motion testing revealed forward elevation from 150 to 150 degrees with a reference range of 0 to 150 degrees; backward elevation from 40 to 40 degrees with a reference range of 0 to 40 degrees; abduction from 150 to 150 degrees with a reference range of 0 to 150 degrees; external rotation from 90 to 90 degrees with a reference range of 0 to 90 degrees; and internal rotation from 40 to 40 degrees with a reference range of 0 to 40 degrees.  The examiner noted that the Veteran was confined to a wheelchair, had very limited strength in his lower extremities, and was unable to bear weight.  The examiner also indicated that the Veteran appeared to have "no strength" of his lower extremities, as he was unable to walk or stay on his feet without support.  The examiner further stated that his findings were consistent with significant radiculopathy of the lower lumbar and S1 segments.  The examiner opined that the Veteran was unable to perform activities of daily living without help and he was unable to participate in any activities of gainful employment.  

In an April 2002 VA treatment note, the examiner noted that the Veteran had a bilateral spondylosis with L4-5 spondylolisthesis with a chronic right L3-4 radiculopathy manifested by pain and weakness.  The Veteran indicated that he was wheelchair bound for most of the day.  The examiner noted that there was no noticeable atrophy of the major muscle groups in the legs, and his gait was not tested.  

During an April 2002 VA physical medicine and rehabilitation consultation, the Veteran requested a motorized scooter.  He reported a history of chronic pain syndrome.  The Veteran's wife indicated that the Veteran was able to limitedly ambulate at home.  The examiner noted that the Veteran was very dependent on his wife and refused to be tested.  She noted that he demonstrated exaggerated effort upon standing up, and rather than making an effort to lift both of his feet, he asked his wife to lift his feet for him.  The examiner denied the Veteran's request for a motorized wheelchair.  She reported that there was no medical indication that the Veteran needed a power wheelchair.  She also opined that he had the functional ability to manipulate a lightweight manual wheelchair, but he was not making an effort.

During an August 2002 VA annual physical examination, the Veteran reported that he had continuous low back pain with numbness of his lower extremities.  He indicated that he had practically no range of motion in his right lower extremity and very slight range of motion in his left lower extremity because of pain in his back and stomach areas.  He reported that he took morphine twice per day for his pain.  On physical examination, the examining physician noted that the Veteran was in a wheelchair and that he was very cooperative.  He demonstrated extremely limited range of motion of his right lower extremity and was able to slightly raise his left leg up from the wheelchair level.  

In a September 2002 VA wheelchair consultation note, the Veteran reported that he was unable to negotiate stairs and that he was totally dependent on his wife.  He indicated that he was unable to transfer without assistance and was unable to ambulate because of his severe back pain.  He also stated that he was unable to push a manual wheelchair because it increased his back pain.  

In a September 2002 VA rehabilitation medicine treatment note, the Veteran reported that he took Morphine Sulfate Controlled-Release (MS Contin) for his baseline pain and Morphine Immediate Release for his breakthrough pain.  He underwent a wheelchair evaluation that showed he had limited range of motion of his lower extremities because it stressed his back and lower extremity weakness.  Manual muscle testing revealed 2 out of 5 strength in the lower extremities.  The Veteran's wife reported that it hurt the Veteran too much to push the wheels of a manual wheelchair, he was unable to negotiate a wheelchair accessible ramp without his wife pushing him, and he was unable to negotiate a significant distance (e.g., over 10 feet) on a level surface with a manual wheelchair because of "unbearable" pain.  Thereafter, the Veteran was issued a powered wheelchair.

An October 2002 VA MRI of the lumbar spine showed grade 1 anterolisthesis of L5 in relation to S1 due to spondylolysis of the pars resulting in stenosis of the exit neural foramina; a small central disc herniation at the L4-5 level with mild effacement of the epidural space; and a shallow central protrusion at the L3-4 level without compromise of the canal.

In a January 2003 VA treatment note, the Veteran's treating VA primary care physician noted that the Veteran needed to be evaluated by a neurologist to "possibly find some other means of helping him get back on his feet, otherwise, he is going to develop contracture deformities of his extremities."

In a January 2003 VA neurology note, a neurologist noted that MRI findings suggested no significant surgical problem and that a review of VA treatment notes showed that surgery was previously discouraged by other providers.  He also noted that the most recent MRI report did not support the diagnoses referred to in some of the VA treatment notes.

In a January 2003 VA social work note, a primary care social worker indicated that she met with the Veteran and his wife.  She noted that the Veteran's wife reported that, after the Veteran was injured during service, he was examined by the commander of the base hospital and a neurologist.  She indicated that the neurologist persuaded the Veteran not to pursue any surgery because there was a "65 percent chance that he would never walk again" and he felt that the military surgeons were not appropriately trained, so the Veteran should seek surgical treatment after service with a VA surgeon.  

During a February 2003 VA neurology consultation note, the Veteran's wife indicated that the chief reason for the neurology consultation was to obtain a referral to a neurosurgeon.  The Veteran and his wife reported that he was completely unable to walk because of back pain and leg weakness.  An examination showed normal strength in the lower extremities.  The neurologist noted motor impersistence upon testing each iliopsoas muscle, but he indicated that there was probably no significant weakness.  Despite the Veteran's normal lower extremity strength, the neurologist noted that the Veteran's wife "must literally lift him from his wheelchair (in the process, his legs appear limp) and onto the exam table."  The neurologist noted that, once the Veteran was on the examination table, he was unable to maintain a sitting position without supporting himself with at least one hand behind his back because of pain.  A sensory examination was normal.  A reflex examination showed a two with reinforcement at the knees and absent at the ankles.  Straight-leg raising in the sitting position was negative.  There was no significant spine percussion tenderness or paraspinous muscle spasm when the Veteran was sitting.  The neurologist noted that he was unable to test for Waddell's signs of non-organic pain or low back range of motion because the Veteran was unable to kneel or stand up.  There were no contractures and no overt signs of autonomic over or under activity.  Specifically, his hair distribution was equal, neither leg was warmer than the other, there was no significant toenail atrophy, and there was no cyanosis or erythema.  The neurologist noted that he reviewed the recent MRI report contained in his consultation order.  He noted that it showed a grade I anterolisthesis of L5 on S1 with resulting stenosis of the exit neural foramina and a small central disc herniation at L4-5 and a small shallow protrusion at L3-4, neither with compromise of the nerve roots.  The neurologist diagnosed chronic back pain.  Further, he provided the following narrative:

To the extent that I can examine this patient, the neurological examination is not helpful and non-diagnostic.  It is entirely possible that the minor but definite abnormalities documented by his MRI are in some way responsible for his pain via unclear mechanisms, but I doubt that any surgeon would touch him.  This remains to be seen.

It is easy for me to refer him to the neurosurgeons but I advise that, based on what I read from the MRI report, surgical intervention is unlikely.  I will leave that to the surgeon.  If they can find a surgeon who suggests an operation and he (patient) is willing to accept risks, including failure, fine.

In April 2003 correspondence, the Veteran's treating VA primary care physician noted that the Veteran's service-connected lumbar spine disability prevented him from sustaining any type of gainful employment.  He noted that the Veteran experienced chronic low back pain and numbness and weakness of his lower extremities.  He also indicated that the Veteran was prescribed medications for his low back pain with side effects, including sedation.  

During a November 2003 VA neurological disorders examination, the Veteran reported that he had chronic back pain that radiated into his legs.  He indicated that he was treated with pain management, physical therapy, injections, and medications for his pain, but none of the treatments helped to alleviate his pain.  He related that he needed a wheelchair since the time of the accident in 2001.  The Veteran indicated that he was unable to walk, dress himself, shower, or work since the accident.  He denied any bowel or bladder incontinence.  A lower extremity examination was "markedly clouded" by the Veteran's severe pain.  He had give way weakness due to significant back pain in all muscle groups tested, but his deep tendon reflexes were 2+ and symmetric.  His sensory examination was patchy with no clear dermatomal or root distribution sensory loss.  An MRI of the lumbosacral spine showed a shallow central protrusion of the disc at L3-4 without compromise of the thecal sac.  There was a small central disc herniation at the L4-5 level with moderate effacement of the epidural space; a grade 1 anterolisthesis of L5 in relation to S1 at the L5-S1 level due to spondylolisthesis of the pars at L5; a patent canal; and moderate to severe narrowing of the exit neural foramina due to the presence of a spondylolisthesis.  The examiner diagnosed the Veteran with spondylolisthesis at L5-S1 and chronic right L3-4 radiculopathy.  The examiner opined that the Veteran was wheelchair bound "due to issues of chronic pain rather than specific neurologic dysfunction, although his exam [was] so clouded by pain that it [was] impossible to document the extent of neurological loss."

During a November 2003 VA spine examination, the Veteran reported that he had been in a wheelchair since his accident during service.  He indicated that he was advised that he was not a candidate for surgery.  He stated that he had constant pain in the low back with radiation to both legs and related that he was confined to a wheelchair because he was unable to walk.  The Veteran noted that he was also unable to stand without help, and he reported that, when he tried to stand, he had severe pain in his low back and legs.  The examiner noted that an attempt was made to examine the Veteran's back, but when the Veteran stood, he did not fully extend his hips or his knees and he collapsed back into his chair and complained of a severe increase in his low back pain with radiation to both of his legs.  The examiner observed that, when the Veteran raised one leg to put it back on the foot rest of the wheelchair, he had severe pain in his lower back.  The diagnoses were spondylolisthesis at L5-S1 and a herniated lumbar disc at L4-5 with severe radiculitis.  The examiner opined that the Veteran was 100 percent disabled due to his service-connected lumbar spine disability and that he was essentially housebound and in need of aid and assistance.

During a December 2003 VA physical medicine and rehabilitation consultation, the Veteran reported that he was unable to move his legs and that he was unable to stand.  The examiner noted that he was unable to evaluate the function of the Veteran's lower extremities because the Veteran was unable to stand.  

In a May 2004 VA pain management clinic note, the Veteran stated that he had disabling pain that left him wheelchair bound approximately four years ago.  He stated that the pain radiated through his back into his legs.  He described the pain as aching, sharp, and stabbing.  He indicated that the pain was improved with heat and moisture, and it was exacerbated when he attempted to move.  He took Morphine to control his pain.  The examiner noted that the Veteran was unable to perform a musculoskeletal examination because the Veteran was unable to walk or move his legs secondary to pain.  He noted motor strength of 1 out of 5 in the bilateral lower extremities.  He indicated that a sensory examination was normal, but that the Veteran reported global hypoesthesia.  Reflexes were 1+ in the bilateral knees and 2+ in the bilateral ankles.  The examiner noted that a physical examination suggested intact L4 and S1 nerves.  He attributed the Veteran's non-physiological leg weakness to possible sedentary lifestyle and atrophy.

In a May 2004 VA pharmacy pain management note, the pharmacist noted that the Veteran wanted to become opioid independent.  The Veteran reported pain in his low back and bilateral legs.  He described it as a shooting, dull pain that originated in his back and radiated to his legs.  He experienced neuropathic pain, including numbness and tingling in his feet.  He reported an escalation of pain with a decreased MS Contin doseage.  The pharmacist noted that the escalating pain was to be expected as the Veteran was being weaned off of opioid therapy.

In a May 2004 VA kinesiotherapy consultation, the Veteran participated in aquatic therapy for his low back pain.  He was unable to bear any weight on his feet due to pain that radiated to his bilateral lower extremities with numbness and tingling.  The therapist noted that the Veteran was in "obvious pain."  The Veteran rated his pre-exercise pain as 9 out of 10.  He was able to transfer, feet up, over the pool side, but he was unable to move or bear weight on his lower extremities in the pool because of pain.  He was also unable to find a comfortable position on his back with or without floats, but the therapist noted that he was in less pain in flexion as opposed to extension of his back.  

In a July 2004 VA kinesiotherapy note, the kinesiotherapist noted that the Veteran remained unable to move or bear weight on his lower extremities in the pool because of pain.  He was able to tread water with his lower extremities in a vertical position in the deep area of the pool with flotation, but he reported that it "felt strange... like his spine was separating."  He was able tolerate holding himself in a semi-prone position at the wall for several minutes.  The kinesiotherapist noted that the Veteran's low back pain remained 9 out of 10 in severity after each 30 to 40 minute session and that the Veteran requested discharge from the aquatic therapy program.

A subsequent July 2004 VA pain management note indicated that the Veteran declined physical therapy rehabilitation and further aquatic therapy because of his pain.  The physician noted that he was unsure if he could offer the Veteran any further treatment.  He stated, "[I]n my op[i]nion[,] [the Veteran] needs an [inpatient] program.... With intense ps[y]chiat[ri]c and physical rehab[ilitation] to get him out of the chair and to gain back some of his quality of life.  [The Veteran] is 30 [years old] and [i]n a wheelchair which [I] could not find the pathology for."

During an August 2004 VA neurology consultation, the Veteran was evaluated for possible lumbosacral radiculopathy.  Nerve conduction studies were normal.  EMG testing also demonstrated normal motor units of the right S1 paraspinals, but the Veteran was unable to relax.  The left gluteus medius and medial gastrocnemius muscles demonstrated normal resting activity, but the Veteran was unable to exert enough effort to study individual motor units.  The neurologist noted that there was no evidence of active denervation in any of the muscles tested and there was no evidence to indicate active lumbosacral radiculopathy.  He noted that chronic lumbosacral radiculopathy could not be definitely ruled out by the study.

In a September 2004 VA primary care note, the Veteran complained of chronic pain involving his low back associated with numbness and progressive weakness involving both lower extremities since 2000.  The physician noted that the Veteran had a fairly complete neurology, neurosurgical, pain clinic, and physical therapy assessments, and efforts to relieve the Veteran's pain had not resulted in any significant improvement.  He noted that the Veteran had refused any further procedure or pain medications.  

During a May 2007 VA spine examination, the Veteran reported that his low back pain had progressively worsened since he injured his back in service.  He indicated that he had a fair response to Tylenol for his back pain.  He denied a history of urinary or fecal incontinence, as well as any numbness, leg or foot weakness, falls, and unsteadiness.  He related that he had paresthesias.  The Veteran indicated that he had dull, mild lumbar spine pain that lasted for minutes on a daily basis.  He stated that the pain did not radiate, and he denied any flare-ups of spinal conditions.  He reported that he was unable to walk and required a wheelchair to ambulate.  On examination, there were no spasms, atrophy, guarding, tenderness, or weakness.  There was pain with motion.  The Veteran demonstrated active movement against full resistance in hip flexion, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension.  Hip extension was not tested.  Muscle tone was normal, and there was no muscle atrophy.  A lower extremity sensory examination was normal, and a detailed reflex examination was normal.  Range of motion testing of the thoracolumbar spine showed flexion from 0 to 70 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 25 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 25 degrees, and left lateral rotation from 0 to 20 degrees.  There was no pain on active or passive range of motion, and there was no pain after repetitive use.  There was no additional loss of motion on repetitive use.  The examiner referenced the October 2002 MRI findings in the examination report.  He diagnosed the Veteran with low back pain due to spondylolysis at L5-S1, and he noted that there were significant effects on the Veteran's usual occupation because of decreased mobility and pain.

May 2007 VA x-rays of the lumbar spine showed no evidence of acute fracture or subluxation.  There was grade 1 anterolisthesis of L5 on S1, unchanged when compared to an October 2002 VA MRI.

In a January 2008 VA emergency room note, the examiner noted that the Veteran was not treated in the VA system since 2004.  He presented with a history of back and radicular pain.  He denied bowel or bladder problems, but he indicated that he had significant radiation down his right leg.  The examiner noted that a physical examination was limited due to the Veteran's inability to walk and his level of pain.  The examiner indicated that there was a significant decrease in sensation along the S1 nerve distribution in the right lower extremity, and his strength was 3 out of 5.  The diagnosis was radicular pain and stenosis of L5-S1.

A January 2008 VA physiatry consultation note indicated that the Veteran was evaluated for radicular pain.  The Veteran reported that he was unable to walk because it caused him severe pain when he tried to bear weight on his legs.  He reported that he lived in his mother's home with a ramp over three steps to the entrance.  He indicated that, if the ramp was too slippery, he managed to get to the entrance with a cane and a stick.  He reported that he was able to transfer independently, but he accepted help from his mother to put on his shoes and socks.  He indicated that his pain was mainly localized to his low back and his lower extremities.  He stated that his right lower extremity pain was more severe than his left lower extremity pain.  He reported that his pain was "25" out of 10 in severity, and he had reported to the VA Emergency Department in the past week, but his pain was currently 5 out of 10 in severity.  He denied any unusual event that worsened the pain.  On examination, the physiatrist noted that the Veteran demonstrated pain behaviors, including heavy breathing, but there was "decreased effort versus true weakness in the right lower extremity greater than the left."  The examiner noted a contrast to the 5 out of 5 strength reported in a previous VA examination.  He also noted that the Veteran's reflexes were difficult to appreciate at the patella and Achilles.  The toes were down-going bilaterally with augmented Babinski.  Strength of the hip flexors was 2 out of 3; knee extensors was 3 out of 4; ankle dorsiflexion was 1 out of 4; and ankle plantar flexion was 2 out of 4.  The Veteran briefly performed bridging from the supine position.  He demonstrated 4+ strength of the left hip extensors and 2+ strength of the right hip extensors on prone examination.  Sensation to pinprick was decreased in the right lateral foot and inconsistent in the medial right calf and medial foot.  Straight leg raising was limited to 40 degrees bilaterally with hamstring tightness and low back pain on the right.  The examiner noted that the Veteran did not tolerate prone propping up well, and lumbar segmental evaluation was unremarkable.  

During a February 2008 VA admission history and physical, the Veteran stated that he used marijuana up to three weeks ago for pain control.  An examination of the musculoskeletal system showed multiple joint pains and some limitation of motion and activity from spinal issues.  

A February 2008 VA MRI of the lumbar spine showed a tiny left paracentral disc protrusion at L2-3; a small right paracentral disc herniation and a small extrusion of the disc at L3-4; a left paracentral disc herniation at L4-5; and grade spondylolisthesis of L5 in relation to S1.

In a February 2008 VA nursing note, the Veteran reported that Valium was helpful for his pain.  

In a February 2008 VA treatment note, the Veteran complained of back and leg pain that he rated 6 out of 10 in severity.  He stated that his pain was "manageable" for him, and he denied any pain medication.  He indicated that he had taken himself off of Morphine because of the side effects.

In a February 2008 VA treatment note, the Veteran reported low back discomfort that he described as pressure with sharp pain that felt like "electric shocks" that radiated down the rear inside portion of his legs.  He stated that in the right leg, the sensation radiated to the foot, and in the left leg, the discomfort radiated to his calf.  He was able to transfer from the bed to his chair, but he related that he only used his arms for the transfer.  He stated that, when he attempted to use his legs, he felt that his spine was "about to break in half," and he pointed to an area just above the sacrum.  The examiner noted that when she asked the Veteran to perform hip flexion and knee extension, his movements were "barely noticeable."  He had almost full bilateral foot dorsiflexion, and he reported pain with these movements.  

In a February 2008 VA physiatry note, the Veteran had increased pain for unclear reasons.  His pain was greatest in the low lumbar area.  On physical examination, the physiatrist noted that the Veteran was lying in bed in no apparent distress and that he groaned when he pulled himself over to lie on his side.  He had tenderness over the right low lumbar paraspinals and some radiation to the leg.  The physiatrist noted that the findings of the February 2008 MRI of the lumbar spine may have explained some of the pain he was having, but they did not explain his significant leg weakness.

In a February 2008 VA nursing note, the Veteran requested Tylenol for back pain that he rated 7 out of 10 in severity.  He later stated that the Tylenol was somewhat effective and that his pain was reduced to 5 out of 10 in severity.

During a February 2008 VA neurology consultation, the Veteran stated that he had been wheelchair bound since his accident during service.  On physical examination, light percussion along the lumbar spine produced no complaint, no movement, and no withdrawal, but he reported that the sensation was painful.  Patellar and Achilles reflexes were readily elicited, and they were normal and symmetrical.  The neurologist stated, "I was struck by how muscled both lower extremities appear.  I see no evidence of muscle atrophy; I saw no fasciculations or muscle twitches.  When I asked that he left his right leg from the him (sic), he said 'I can't.'  He then said he could contract (muscle) but that it hurt.  I let him know that I do not understand at this time the nature of his problem."  The neurologist's impression was malingering versus conversion reaction.

A February 2008 VA nerve conduction study and EMG findings showed that the paraspinal muscles did not show spontaneous activity, and chronic, moderately severe denervation and reinnervation of muscles primarily belonging to the L4-5, S1 my tomes on the right and L5, S1 myotomes on the left.  The interpreting physician noted that there was no evidence of neuropathy or myopathy.

In an April 2008 VA vocational rehabilitation note, the Veteran stated that he had back problems "above [his] lower back," but he indicated that he had no problems with his legs or feet.  He also reported that he could sit and ride for "hours."  The vocational rehabilitation specialist stated, "These answers are not supported by his notes and there is question from some [d]octors about the extent of his back injury and the use of the wheelchair."

In an April 2008 VA history and physical note, the Veteran reported that he put himself into a wheelchair approximately five years ago after he tried to ambulate with a cane for two years.  On examination, the examiner noted that the Veteran transferred to the examination table without grimacing.  He would not allow strength testing of his legs, but he was able to lie down and lift his legs for the table leg extension.  

During an April 2008 VA neurosurgery consultation, the Veteran complained of low back pain and bilateral lower extremity pain and paresthesias for eight years.  He was wheelchair bound since 2000, and he stated that he had not stood up in eight years.  He denied any bladder or bowel problems.  During the examination, the Veteran reported that he was unable to shift in or from his wheelchair due to his condition.  A neurological examination showed no tremors, no fasciculations, no tics, and no muscle wasting.  The examiner noted that the Veteran had "very good musculature in fact."  A sensory examination showed a sporadic deficit in the bilateral L4 and S1 region, but not L5.  A motor examination was not performed because the Veteran reported that he was unable to move his legs.  The examiner noted that an MRI showed an L2-3 disc bulge possibly making contact with the thecal sac and L5-S1 very slight, mild grade 1 spondylolisthesis.  The examiner stated that the limited examination showed "very good bilateral leg musculature for someone who claims that he cannot move his legs at all."  

In an April 2008 VA treatment note, the examiner noted that a chart review and examination of the Veteran defied the story that the Veteran was wheelchair bound for eight years.  The examiner noted that the Veteran had well-developed lower extremities musculature, etc.  The examiner noted that the Veteran reported that he chose not to get up and walk because of pain.  He denied an inability to get up and walk.  When the examiner asked the Veteran how he had "such strong appearing legs after all of these years," the Veteran answered, "I'm not sure."  

In a May 2008 VA telephone triage note, the Veteran reported increased low back pain with radiation down both of his legs.  He rated his pain 8 to 9 out of 10 in severity.  He indicated that his Meloxicam, Robaxin, and Tylenol were not effective.  

During a June 2008 VA pain advisory consultation, the Veteran complained of increased low back and bilateral leg pain.  He indicated that his back pain was just above belt level over the spine approximately the size of a baseball.  He stated that the pain was constant, but it varied in severity.  He related that the pain sensations burned and ached, and it felt like pressure in his back.  He reported that the pain radiated from his buttocks to the back of his knees, down the medial line of his lower legs, under his heels, and into his arch.  He denied any pain in his toes, but he indicated that they tingled.  He denied any bowel or bladder incontinence.  He reported that his pain was better when he slept or laid down on either his back or his side.  He stated that his pain increased with bending over.  He indicated that he was unable to bend over to pick items up from the floor, but he was able to easily put on his socks and shoes.  He reported that he was able to complete all of his own activities of daily living, except it was difficult to pull up his pants.  He reported that he was unable to walk and that it hurt to even stand.  He was able to transfer from his wheelchair to other surfaces, but if he tried to stand, he had the sensation of an "electric shock" that went down his legs and he would fall because of the pain.  He denied any leg weakness or numbness of the legs or buttocks.  On examination, the Veteran was sitting in a wheelchair and he refused to stand or walk a few steps into the office.  The examiner noted that he had very limited movement in the wheelchair and no examination was conducted.  The diagnosis was chronic pain, and the examiner noted that multiple previous evaluations noted no pathology.  

In a June 2008 VA physical therapy treatment note, the Veteran reported that his low back pain had progressively worsened, "sending lightning shocks down both [of his] legs and cau[s]sing him to fall frequently."  He stated that he put himself into a wheelchair in 2002 to reduce his severe pain.  He indicated that his pain was not affected by position changes and that the pain only seemed to change with "the weather and [his] mood."  He related that he wanted a non-opiate solution to his pain and that he eventually wanted to walk again.  On examination, the Veteran was able to smoothly transfer from surface to surface using his bilateral upper extremities.  He used his upper extremities to support his lower extremities during some bed mobility tasks, but he was actively contracting his leg musculature during the transfers.  He indicated that his pain was 8 out of 10 at the beginning of the evaluation, and it was 7 out of 10 at the end of the evaluation.  He refused to participate in range of motion testing of the trunk.  He moved less than 10 degrees in any direction.  He had grossly 90 degrees of hip flexion, no active extension against gravity, and minimal active abduction and adduction from a supine position.  Muscle strength testing revealed 3 out of 5 hip flexion in sitting, 3+ out of 5 hip flexion in supine, 2 out of 5 in hip extension, 3 out of 5 in the quadriceps, and 4 out of 5 in the hamstrings.  All lower extremity reflexes were 1+ bilaterally.  The physical therapist noted a poor prognosis due to difficulty determining the Veteran's true pathology.  He noted that the Veteran had back pain that responded more to the weather and his mood than to positional changes, which indicated that the pain is "of psychosomatic origin."  He indicated that the Veteran had a number of clinical signs that suggest malingering and a number of anomalous examination findings.  He also reported that the Veteran had no gross muscular atrophy in his lower extremities, which would be expected after being wheelchair bound for six years.

In an August 2008 VA neurosurgery note, the fee-basis neurosurgeon indicated that the Veteran had been seen by six or seven surgeons in the past who had passed on surgical intervention.  The Veteran reported that he was in a wheelchair secondary to excruciating pain when he stood.  The neurosurgeon noted that the Veteran had a CT scan, MRI, and x-rays that showed spondylolisthesis, and the CT scan showed some spinal stenosis and indentation of facet joint pars interface into the canal.  He indicated that the Veteran was not having much discomfort at rest and was able to dorsiflex and plantar flex his toes without much difficulty.  His sensation was grossly intact.  The neurosurgeon indicated that he ordered a CT myelogram to check for nerve root involvement and flexion/extension films to determine stability.  He stated, "[The Veteran] may be a surgical candidate.  I am very disturbed, however, by the fact that he continues to be in a wheelchair.  I have seen many patients with spondylolisthesis and very rarely are they in a wheelchair."

September 2008 VA x-rays of the lumbar spine showed considerable widening of the anterior listhesis appreciated of L5 on S1 with flexion maneuver and chronic pars defects were observed at that level.  

A September 2008 VA CT scan of the lumbar spine showed chronic pars defects at L5-S1 showing grade 1 anterolisthesis at rest.  On flexion radiographic images, there was anterior motion and worsening of the listhesis of L5-S1.  There was no change in the degenerative disc bulge from the prior MRI and there were no lyctic or blastic changes of the bone.  There was anterior displacement of the posterior aspect of L5 on S1 of approximately 4 millimeters by measuring the listhesis on the MRI at L5-S1, and the flexion radiograph demonstrated approximately 18 millimeters at the same level and location.

In an October 2008 VA treatment note, the Veteran reported that increasing weakness in his lower extremities and a history of frequent falls due to collapsing made him increasingly reliant on his wheelchair.

In October 2008 VA physical therapy notes, the Veteran's treating physical therapist noted that she had been treating the Veteran for six weeks for low back pain.  She indicated that her original referral noted that the Veteran had put himself into a wheelchair.  During therapy, she had gotten him onto a treadmill.  She noted that she recently saw the Veteran out in the community and that he was walking without any assistive devices.  She subsequently discharged him from her services.  In an addendum note, the Veteran's primary care physician stated, "I think it is reasonable for the physical therapist to discharge the [Veteran] based on her observation.  It appears that a clear cut etiology for his pain has not been found despite extensive workup."

During a December 2008 VA spine examination, the Veteran reported that he began using a wheelchair in 2003 because of the constant pain in his low back and legs.  He indicated that he continued to use the wheelchair if he had to ambulate beyond 10 to 15 feet.  He stated that he had constant, daily back pain that he rated 8 out of 10 in severity.  He related that he was not using any pain medication because he did not want to use Morphine and nonsteroidal anti inflammatory drugs were ineffective.  He denied urinary or fecal incontinence.  He reported that he had numbness, paresthesias, leg or foot weakness, falls, unsteadiness, decreased motion, stiffness, weakness, and spasms.  On examination, there was objective evidence of muscle spasms, guarding, pain with motion, tenderness, and weakness of the bilateral thoracic sacrospinalis.  There was no atrophy of the thoracic sacrospinalis.  An inspection of the spine showed stooped posture.  The Veteran leaned forward, and he had difficulty standing without the full support of both arms.  No abnormal spinal curvature was noted.  A detailed motor examination revealed hip flexion with active movement against some resistance; and hip extension, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension with active movement against gravity.  The examiner noted that muscle tone was normal, and there was no muscle atrophy.  A sensory examination of the lower extremities revealed vibration 1 out of 2, pain 1 out of 2, light touch 1 out of 2, and position sense 2 out of 2 bilaterally.  There was no thoracolumbar spine ankylosis.  The Veteran was unable to perform range of motion testing because he was unable to do any forward, backward, or lateral bending.  He was also unable to stand without using both arms to support the weight of his body.  The examiner noted findings from the February 2008 MRI of the lumbar spine.  The examiner opined that the Veteran's lumbar spine disability had worsened.  He opined that the Veteran's spondylosis at L4 and spondylolisthesis at L4-5 had mostly severe effects on his usual daily activities.

During a December 2008 VA feet examination, the Veteran indicated that he was unable to walk because of weakness in his legs.  

In a December 2008 VA primary care note, the Veteran continued to complain of chronic low back pain and bilateral lower extremity pain.  The physician noted that the Veteran recently had a CT myelogram, but the report was not associated with the record.  He indicated that the Veteran's diagnosis remained unclear and the differential was "obviously quite wide and include[d] nonphysiologic diagnoses."  He also stated, "[C]entral pathology seems unlikely, but I would consider an MRI of the brain and upper spinal cord if [the] CT myelogram is not helpful."  

In a December 2008 statement, a VA physician reported that the Veteran was wheelchair bound and that he required assistance with many of his activities of daily living.

In a February 2009 VA aid and attendance medical opinion, the examining physician noted that the Veteran's diagnosis was unclear or uncertain.  The Veteran reported that he was unable to walk unaided and the reason for his inability to walk was unknown.  He also reported that he required assistance bathing, tending to other hygiene needs, and caring for the needs of nature.  The examining physician was unable to provide an opinion as to whether the Veteran required hospital, nursing home, or other institutional care.  He stated that there was no objective evidence to support the Veteran's reported inability to walk.

In a July 2009 VA treatment note, the Veteran reported continued low back and bilateral leg pain that he rated 8 out of 10 in severity.

In a December 2009 VA primary care note, the Veteran reported no change in his neurologic status, and he indicated that he wondered if he had multiple sclerosis.  The examining physician noted that the etiology of the neurologic symptoms was unclear and that an MRI to rule out central pathology was not unreasonable.  He related that the Veteran's symptoms would "obviously be an unusual presentation" for multiple sclerosis.

In a September 2011 VA primary care note, the examining physician noted that the Veteran ambulated with a cane for assistance.  She indicated that the Veteran reported that he used the cane for stability due to back pain.  On examination, she noted no gross abnormalities of the back.  

During a February 2012 VA spine examination, the Veteran indicated that he had daily, constant, achy or stabbing-type pain.  He rated the average level of pain 6 out of 10 in severity.  He stated that the pain did not radiate, but that he had consistent bilateral leg numbness.  He also reported symptoms of weakness, stiffness, fatigue, and lack of endurance.  He related that he had flare-ups of pain twice per month in the last year.  He indicated that his pain increased to 10 out of 10 in severity and lasted between two to seven days.  He noted that the only thing that improved his pain was lying down.  He stated that he needed his wife to help him with toileting and dressing during the episodes.  He denied any incapacitating episodes in the past 12 months.  He reported that he used a single point cane on a daily basis and used a wheelchair "only for out of home long distances," such as for shopping with his wife.  During the examination, he ambulated with a wide-based gait, and he mildly favored his right lower extremity due to hip pain unrelated to his lumbar spine disability.  The examiner noted that the Veteran was able to dress and undress himself and get on the examining table without assistance.  

During the February 2012 VA examination, range of motion testing of the lumbar spine showed forward flexion to 70 degrees, with evidence of painful motion beginning at 40 degrees; extension to 20 degrees, with evidence of painful motion beginning at 10 degrees; right lateral flexion to 30 or greater degrees, with evidence of painful motion beginning at 20 degrees; left lateral flexion to 30 or more degrees, with evidence of painful motion beginning at 30 or more degrees; right lateral rotation to 30 or more degrees, with evidence of painful motion beginning at 30 or more degrees; and left lateral rotation to 30 or more degrees, with evidence of painful motion beginning at 30 or more degrees.  The Veteran was able to perform repetitive-use testing with three repetitions.  He had additional limitation in range of motion of the thoracolumbar spine following repetitive use testing with weakened movement, excess fatigability, incoordination, and pain on movement.  Post-test forward flexion ended at 50 degrees, extension ended at 10 degrees, right lateral flexion ended at 20 degrees, left lateral flexion ended at 20 degrees, right lateral rotation ended at 20 degrees, and left lateral rotation ended at 20 degrees.  The Veteran also had localized tenderness to palpation over the L4-S1 paraspinals or facet joints, and he had guarding or muscle spasm severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis.  Muscle strength testing revealed normal strength in bilateral hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension.  The Veteran did not have muscle atrophy.  A reflex examination revealed hypoactive deep tendon reflexes in the bilateral knees and ankles.  The examiner noted that a sensory examination was inconsistent because the Veteran had normal sensation to light touch to the bilateral lower extremities two out of three times.  Straight leg testing was negative.  The examiner also noted that the Veteran complained of bilateral intermittent numbness to the inner thighs and medial lower legs bilaterally.  He reported that there were no clinical sensory or motor abnormalities on examination consistent with lumbosacral radiculopathy.  He had no other neurologic abnormalities or findings related to a thoracolumbar spine condition, such as bowel or bladder problems or pathologic reflexes.  He did not have intervertebral disc syndrome (IVDS).  Diagnostic testing, including February 2012 x-rays, showed spondylolysis and spondylolisthesis at L5-S1.  

The February 2012 VA examiner diagnosed the Veteran with multilevel disc disease and spondylolisthesis of L5-S1.  She opined that the Veteran's low back disability impacted his ability to work.  She noted that the Veteran reported that he only drove twice per year due to his low back pain, that he needed to stretch his low back at least two to three times per hour while he was sitting, that he was limited to standing for two minutes, that he was limited to walking 100 yards, and that he was limited to lifting less than 10 pounds due to his pain.  

During a December 2012 VA pain consultation, the Veteran complained of low back pain and weakness, numbness and burning in his feet, and urinary hesitancy.  He reported that he was wheelchair bound in the past, but, presently, he was able to walk with a cane.  An examination failed to show clear focal weakness in foot inversion, eversion, dorsiflexion or plantar flexion, but his other muscles were limited, mainly due to pain.  The examiner noted that the Veteran needed a neurological work-up and he was supposed to return to the clinic after the work-up was completed.  A February 2013 record indicates that he did not show up for his appointment.


Analysis

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected lumbar spine disability.  The evidence of record shows that the Veteran does not meet the criteria for rating in excess of 40 percent.  

As noted above, while this appeal was pending, the provisions of VA's Schedule for Rating Disabilities pertaining to disabilities of the spine, was revised effective September 26, 2003.  When regulations are changed during the course of the Veteran's appeal, the criteria that are to the advantage of the Veteran should be applied.  However, if the revised regulations are more favorable to the Veteran, then an award of an increased rating based on a change in law may be granted retroactive to, but no earlier than, the effective date of the change.  See VAOPGCPREC 3-2003, 65 Fed. Reg. 33422 (2000).

In this case, the Board finds that the revised regulations are more favorable to the Veteran because the rating criteria prior to September 26, 2003, provided for a maximum 40 percent evaluation for both a severe lumbosacral strain and severe limitation of motion.  Thus, he could not be granted a higher initial evaluation under such criteria.  Moreover, the criteria for intervertebral disc syndrome are not for application in this case.  Indeed, the February 2012 VA examiner reviewed the claims file and medical history and specifically found that the Veteran did not have intervertebral disc syndrome.

With respect to the revised criteria, specifically, the evidence does not reveal unfavorable ankylosis of the entire thoracolumbar spine.  In this regard, during the July 2001 VA examination, the examiner found that the Veteran had forward flexion from 30 to 95 degrees, extension from 20 to 35 degrees, right lateral flexion from 25 to 40 degrees, left lateral flexion from 25 to 40 degrees, right rotation from 35 to 35 degrees, and left rotation from 35 to 35 degrees.  While a January 2002 SSA disability examiner found that the Veteran had forward elevation from 150 degrees to 150 degrees, backward elevation form 40 to 40 degrees, abduction from 150 to 150 degrees, external rotation from 90 to 90 degrees, and internal rotation from 40 to 40 degrees, suggesting that the Veteran had no mobility in his thoracolumbar spine, subsequent testing showed that the Veteran did, indeed, have mobility of his thoracolumbar spine.  Specifically, during a May 2007 VA examination, the examiner found that the Veteran had forward flexion from 0 to 70 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 25 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 25 degrees, and left lateral rotation from 0 to 20 degrees.  Additionally, the examiner noted that the Veteran demonstrated no pain on active or passive range of motion, there was no pain after repetitive use, and there was no additional loss of motion on repetitive use.  During a December 2008 VA spine examination, the examiner noted that the Veteran was unable to perform range of motion testing because he was unable to do any forward, backward, or lateral bending due to pain; however, the examiner specifically noted that there was no thoracolumbar spine ankylosis.  Moreover, during the February 2012 VA spine examination, the Veteran had forward flexion to 70 degrees, extension to 20 degrees, lateral flexion to 30 degrees or more on each side, and lateral rotation to 30 degrees or more on each side.  There was some loss of range of motion after repetitive testing; however, the examiner noted that the Veteran retained movement in his thoracolumbar spine with forward flexion to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees on each side, and bilateral lateral rotation to 20 degrees on each side.

The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure."  Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)).  Based on the aforementioned range of motion findings, the Veteran's spine does not appear to be fixed or immobile.  Moreover, the December 2008 VA examiner specifically stated that there was no thoracolumbar spine ankylosis, even when the Veteran was unable to perform range of motion testing due to back pain.

After reviewing the record, the Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran has a separate neurological disability distinct from his lumbar spine disability.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria.  Notably, the Veteran is already separately service-connected for neuropathy of the right and left lower extremities.  The Veteran did report that he had urinary hesitancy during a December 2012 VA pain consultation.  However, he failed to report to a June 2013 VA examination to determine whether he had any bowel or bladder impairment associated with his lumbar spine disability.  An examination may have provided such evidence, but due to his failure to report, the claim must be adjudicated based on the available evidence of record.  In this regard, the Veteran expressly denied any bowel or bladder incontinence during the November 2003 VA neurological disorders examination, the May 2007 VA spine examination, January 2008 VA emergency room treatment, an April 2008 VA neurosurgery consultation, a June 2008 pain advisory consultation, the December 2008 VA spine examination, and the February 2012 VA examination.  Thus, the preponderance of the evidence weighs against a finding of bladder impairment associated with his service-connected lumbar spine disability.  Therefore, the Board concludes that the Veteran did not suffer from additional neurological deficiency so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders.  See Bierman, 6 Vet. App. at 129-132. 

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an increased evaluation for the Veteran's low back disability is not warranted on the basis of functional loss due to pain or weakness, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher.  In this regard, the Board observes that the Veteran complained of constant back pain.  However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 40 percent disability evaluation.  The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  As discussed above, even when taking into consideration pain and repetitive motion testing, the Veteran retained some degree of functioning and did not more nearly approximate unfavorable ankylosis.  

Based on the foregoing, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 40 percent for the Veteran's service-connected lumbar spine disability.

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's lumbar spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). 

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his pain and limitation of motion.  As discussed above, there are higher ratings available under criteria, but the Veteran's disability is not productive of such manifestations.  The Board also notes that the Veteran's other symptoms, such as radiating pain and tingling in his lower extremities, are also contemplated in separate 40 percent evaluations for neuropathy of the left and right lower extremities.

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbar spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met.  Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).

The Board also notes that the Veteran has already been granted a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU), and he did not appeal the effective date of that grant.  Thus, no consideration as to entitlement to TDIU is necessary at this time.





ORDER

An initial evaluation in excess of 40 percent for lumbar spine spondylosis at L4 and spondylolisthesis at L4-5 is denied.




____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs