Citation Nr: 1334903 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-27 921A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased initial rating for coccydynia/right sacro-iliac joint dysfunction (back disability), currently rated noncompensably disabling prior to May 30, 2008, 20 percent disabling from May 30, 2008 to March 18, 2012, and 40 percent disabling since March 19, 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from November 2002 to June 2005, including service in Operation Iraqi Freedom from November 2003 to March 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for a back disability. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for total disability based on the unemployability of the individual (TDIU) is part of a claim for a higher initial rating when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, in light of the Veteran's statements, the Board finds that entitlement to a TDIU is part of her claim for a higher rating for back disability. As such, the Board has characterized the issues as set forth on the title page. The Board remanded these matters for further development in April 2011. The issue of entitlement to an increased rating for a right ankle disability is not currently in appellate status. Nonetheless, the claim for an increased rating for a right ankle disability was erroneously included in a May 2012 supplemental statement of the case based on the Veteran's report that she was unable to work due to her back and ankle disabilities. The determination was not issued as part of a rating decision and the Veteran has not filed a jurisdiction conferring Notice of Disagreement (NOD). Thus, although the Veteran's representative offered written argument in support of the Veteran's entitlement to a higher rating for her right ankle disability, the issue was not certified to the Board and the Board does not have jurisdiction over this issue. See June 2012 VA Form 8. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to May 30, 2008, the service-connected back disability was manifested by subjective complaints of pain; forward flexion greater than 60 degrees and a combined range of motion greater than 235 degrees, even considering any additional limitation of motion from pain and repetitive motion; without evidence of muscle spasm, guarding, or localized tenderness resulting in abnormal gait or contour, or vertebral body fracture. 2. From May 30, 2008 to March 18, 2012, the Veteran's back disability was not productive of limitation of thoracolumbar forward flexion to 30 degrees or less, even considering any additional limitation of motion from pain and repetitive motion, or ankylosis. 3. Since March 19, 2012, the preponderance of the evidence shows that the back disability is not productive of unfavorable ankylosis. 4. The Veteran's back disability is not manifested by incapacitating episodes of intervertebral disc disease requiring bedrest prescribed by a physician. 5. Throughout the appeal, the Veteran's back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 6. Throughout the appeal, the Veteran's back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Effective June 27, 2005, the criteria for a 10 percent disability rating, and no higher, for a back disability are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.59, 4.71a, Diagnostic Codes (DC) 5235-5243 (2013). 2. From May 30, 2008 to March 18, 2012, the criteria for a disability rating in excess of 20 percent rating for a back disability have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.59, 4.71a, DCs 5235-5243 (2013). 3. Since March 19, 2012, the criteria for a disability rating in excess of 40 percent rating for a back disability have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.59, 4.71a, DCs 5235-5243 (2013). 4. Effective June 27, 2005, the criteria for a separate 10 percent rating, and no more, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2013). 5. Effective June 27, 2005, the criteria for a separate 10 percent rating, and no more, for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). The United States Court of Appeals of the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The claimant was provided the opportunity to present pertinent evidence. The record contains records of medical treatment received from VA treatment providers. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran has undergone VA examinations in conjunction with this appeal. In this regard, the VA examination reports contain the pertinent clinical findings relevant to the pertinent diagnostic codes. The Board notes that these VA examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds the examination reports to be sufficient and adequate for rating purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Significantly, the Board observes that the Veteran has not reported that the back disability has worsened since the most recent VA examination in March 2012. As such, a remand is not required solely due to the passage of time since the March 2012 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In obtaining all outstanding VA treatment records related to the Veteran's back condition dated since August 2007, and having the Veteran undergo additional VA compensation examinations in August 2011 and March 2012, there was compliance with the April 2011 remand directive as there is now sufficient information and evidence to adjudicate the back claim. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the United States Court of Appeals for Veterans Claims (Court) or Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is alternatively permissible to have "substantial" compliance with a remand directive, even if not "exact" or "total" compliance). The RO later issued a supplemental statement of the case in May 2012. Thus, the Board finds that the RO complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis The Veteran seeks a higher initial evaluation for her back disability. The Veteran was originally service connected for the back disability by way of a July 2005 rating decision which assigned a zero percent disability rating effective June 27, 2005. An October 2011 rating decision assigned a 20 percent disability rating effective May 30, 2008. A May 2012 rating decision assigned a 40 percent disability rating effective March 19, 2012 under DC 5236. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include sacroiliac injury and weakness (Diagnostic Code 5236). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, et cetera., particularly during times when these symptoms 'flare up,' such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board observes that the Court noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). 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, the Mitchell 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, 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. See 38 C.F.R. §§ 4.40, 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. Consideration of any associated radicular pain in the lower extremities is inherent in the evaluation of the claim on appeal for an increased evaluation for the lumbar spine disability. See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the back disability. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "(w)hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran underwent a VA examination in May 2005. She reported a hard time sitting for long periods of time because of chronic coccyx pain and pain on the right sacroiliac region. She stated that she had discomfort on prolonged walking. Upon physical examination, there was tenderness over the right sacroiliac region. There was no paraspinal spasm. There was no bowel or bladder problem. Flexion was to 90 degrees, extension was to 30 degrees, lateral flexion was to 30 degrees, and rotation was to 30 degrees. Range of motion was not painful and there was no change with repeated and resisted motion of the thoracolumbar spine. There was no muscle spasm. Straight leg raising was negative. There was no neurological deficit in the lower extremities. Intervertebral disc syndrome was not applicable. The examiner diagnosed coccydynia and right sacroiliac joint dysfunction. The Veteran underwent another VA examination on May 30, 2008. She denied a history of hospitalization or surgery. She denied a history of urinary incontinence, urinary urgency, urinary retention requiring catheterization, urinary frequency, nocturia, fecal incontinence, obstipation, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, visual dysfunction, and dizziness. She denied a history of fatigue and weakness. She reported a history of decreased motion, stiffness, spasms, and pain. She stated that low back pain began with prolonged sitting and certain activities. She reported that daily, constant, moderate pain was aching or stabbing. She stated that the pain radiated up the back and down both legs. She reported that the radiating pain was sharp and shooting. She reported that flare-ups were severe and occurred weekly, lasting one to two days. She stated that precipitating factors were random, and alleviating factors were rest and medication. The Veteran's impression of extent of additional limitation of motion or other functional impairments during flare-ups were increased pain. She reported no limitation to walking. She denied significant incapacitating episodes in the previous 12 months. She stated that she had about one episode of increased pain per week that limited her for the entire day. Upon physical examination, there was no spasm, atrophy, tenderness, or weakness. There was left and right side guarding and pain with motion. There was no muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Posture, head position, and gait type were normal. There was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or reverse lordosis. As to the lower extremities, left and right vibration, pain, light touch, and position sense were normal. There was no abnormal sensation. Left and right knee jerks and ankle jerks were normal. Left and right plantar flexion were normal. Active flexion was zero to 60 degrees, with pain beginning and ending at 60 degrees. Passive flexion was zero to 65 degrees, with pain beginning and ending at 65 degrees. Resisted isometric movement was normal. There was pain on active motion, passive motion, and pain after repetitive use. There was no additional loss of motion on repetitive use of the joint. Active and passive extension were zero to 25 degrees, with pain beginning and ending at 25 degrees. Resisted isometric movement was normal. There was pain on active motion, passive motion, and pain after repetitive use. There was no additional loss of motion on repetitive use of the joint. Active and passive right and left lateral flexion were zero to 30 degrees, with pain beginning and ending at 30 degrees. Resisted isometric movement was normal. There was pain on active motion, passive motion, and pain after repetitive use. There was no additional loss of motion on repetitive use of the joint. Active and passive right and left lateral rotation were zero to 30 degrees, with pain beginning and ending at 30 degrees. Resisted isometric movement was normal. There was pain on active motion, passive motion, and pain after repetitive use. There was no additional loss of motion on repetitive use of the joint. Lasegue's sign was negative. The Veteran had pain while attempting forward flexion on examination, although she sat comfortably during the examination and was able to move her back without problems. The examiner diagnosed lumbago. The Veteran stated that she was unemployed for one to two years due to the back. The back disability had no effects on sports, traveling, feeding, toileting, and grooming; mild effects on recreation; and moderate effects on chores, shopping, exercise, bathing, and dressing. The examiner opined that the Veteran's back condition is very mild and is not sufficient to render her unemployable. She had good motion and no functional deficit. The examiner stated that there are several jobs that the Veteran could perform with her current condition. VA treatment records dated in April 2009 reflect that the Veteran denied bowel and bladder dysfunction. She reported that she slept well on medication. The Veteran underwent another VA examination in August 2011. She reported numbing pain. She stated that she could not walk upstairs. She reported that she could not exercise without her legs shaking and locking for five to ten minutes. She stated that she last worked in 2007, and that her work required sitting at a desk. She reported that she fainted at work and was terminated. She denied history of hospitalization or surgery, as well as flare-ups. She denied history of urinary incontinence, urinary urgency, urinary retention requiring catheterization, urinary frequency, nocturia, fecal incontinence, obstipation, numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. She denied history of fatigue, decreased motion, stiffness, weakness, and spasm. She reported sudden moderate to severe pain lasting one to two days, with a frequency of one to six days a week. She stated that pain radiated down the bilateral legs to the calf area. She denied incapacitating episodes of spine disease. She reported wearing a brace and was able to walk one quarter mile. She was not wearing a brace during the examination, and stated that she used the brace every now and then when she had pain. She reported the limitations of walking were related to her right ankle condition as well. Upon physical examination, posture, head position, and gait were normal. There was no gibbus, kyphosis, lumbar lordosis, lumbar flattening, reverse lordosis, list, scoliosis, or thoracolumbar spine ankylosis. There was no spasm, atrophy, guarding, pain with motion, tenderness, and weakness. Flexion was zero to 60 degrees, and extension, left and right lateral flexion, and left and right lateral rotation were zero to 30 degrees. There was no objective evidence of pain on active range of motion. There was no objective evidence of pain following repetitive motion. There were no additional limitations after three repetitions of range of motion. Right and left knee and ankle jerk were hypoactive. Right and left lower extremity vibration, position sense, pain or pinprick, and light touch were normal. There was no left or right side dysesthesias. The examiner diagnosed degenerative facet disease of the lumbar spine. The Veteran reported having difficulty with daily chores and laundry and stated that she tried to stay active by coaching and volunteering. The examiner opined that her degenerative facet disease of the lumbar spine does not affect her ability to secure or follow a substantially gainful occupation. The examiner noted that there was no evidence of significant disability, range of motion was not significantly diminished, daily activities did not seem to be extensively affected, and the X-ray of the lumbar spine was unremarkable. In an October 2011 addendum opinion, the examiner noted that the symmetrically hypoactive reflexes of the lower extremities was a nonspecific finding, and that this was not diagnostic of radiculopathy in the settings of lack of other objective evidence of radiculopathy. The Veteran underwent another VA examination on March 19, 2012. She stated that flare-ups did not impact the function of the thoracolumbar spine. She reported that she could not walk, stand, or sit for long periods of time, which she attributed to her back condition. Upon physical examination, forward flexion was zero to 30 degrees, with objective evidence of painful motion beginning at zero degrees. Extension was to 10 degrees, with objective evidence of painful motion beginning at 10 degrees. Right and left lateral flexion were to 30 degrees or greater, with objective evidence of painful motion beginning at 30 degrees or greater. Right and left lateral rotation were to 30 degrees or greater, with objective evidence of painful motion beginning at 30 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test forward flexion was to 30 degrees, extension was to 10 degrees, right and left lateral flexion and lateral rotation were to 30 degrees or greater. There was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. There was no functional loss and/or functional impairment of the thoracolumbar spine. The Veteran had mid thoracic and lumbar point tenderness. There was no guarding or muscle spasm of the thoracolumbar spine. There was no muscle atrophy. Right and left knee and ankle deep tendon reflexes were normal. With regard to sensation to light touch, right and left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes were normal. Right and left straight leg test raising were negative. She had no radicular pain or any other signs or symptoms due to radiculopathy. The right and left sides were not affected by radiculopathy. There were no other neurologic abnormalities or findings related to the back condition, such as bowel or bladder problems/pathologic reflexes. The Veteran did not have intervertebral disc syndrome. The Veteran did not use any assistive devices as a normal mode of locomotion. The Veteran did not have any scars related to the back condition. The examiner diagnosed status post fracture of coccyx. The examiner stated that arthritis was documented. The examiner opined that the back condition should not affect her ability to find gainful employment. Prior to May 30, 2008 Based on the Board's review of the available evidence, the Veteran is entitled to a 10 percent rating, and no more, for her service-connected back disability. This rating is assigned because the evidence of record, specifically the May 2005 VA examination report, revealed that the Veteran has back pain. As the Veteran has back pain, the Board finds that, pursuant to 38 C.F.R. § 4.59 and Burton, a minimum compensable rating, ten percent, is warranted. A higher rating is not warranted based on limitation of motion even after consideration of pain, weakness and other symptoms described in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5236 (2012). As noted, at the May 2005 VA examination, the Veteran's lumbar spine range of motion was normal, with forward flexion greater than 60 degrees. Moreover, range of motion was not painful. Her combined range of motion was greater than 235 degrees. The ranges of motion demonstrated exceed the criteria for a 10 percent rating. Additionally, there is no evidence of muscle spasm, guarding, or localized tenderness resulting in abnormal gait or contour; or vertebral body fracture. The VA treatment records are negative for any range of motion findings or any other evidence that would warrant a higher rating. From May 30, 2008 to March 18, 2012 An evaluation in excess of 20 percent is not warranted as the evidence does not reflect forward flexion of the thoracolumbar spine limited to 30 degrees or less, even after consideration of pain, weakness and other symptoms described in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5236 (2013). On May 30, 2008, active flexion was zero to 60 degrees, with pain beginning and ending at 60 degrees. In August 2011, flexion was zero to 60 degrees, and there was no objective evidence of pain on active range of motion. Moreover, the evidence does not show that there was ankylosis of the lumbar spine. See 38 C.F.R. § 4.71a, DC 5236 (2013). For example, in August 2011, there was no thoracolumbar spine ankylosis. In light of the above, the evidence is insufficient to warrant an evaluation in excess of 20 percent. Since March 19, 2012 An evaluation in excess of 40 percent is not warranted as there is no objective evidence supporting an evaluation of 50 percent even after consideration of pain, weakness and other symptoms described in DeLuca. See 38 C.F.R. § 4.71a, Diagnostic Code 5236 (2013). The evidence does not show that there was unfavorable ankylosis of the lumbar spine. For example, the March 19, 2012 VA examiner found that forward flexion was zero to 30 degrees, with objective evidence of painful motion beginning at zero degrees. Extension was to 10 degrees, with objective evidence of painful motion beginning at 10 degrees. Right and left lateral flexion were to 30 degrees or greater, with objective evidence of painful motion beginning at 30 degrees or greater. Right and left lateral rotation were to 30 degrees or greater, with objective evidence of painful motion beginning at 30 degrees or greater. In light of the above, the findings do not reflect unfavorable ankylosis of the spine, and the evidence is insufficient to warrant an evaluation in excess of 40 percent. Intervertebral Disc Disease The Veteran's back disability is not manifested by incapacitating episodes of intervertebral disc disease requiring bedrest prescribed by a physician, so a higher rating under Diagnostic Code 5243 is not warranted. For example, the March 19, 2012 VA examiner noted that the Veteran did not have intervertebral disc syndrome. DeLuca In reaching these determinations, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet. App. at 205-06. To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. The Board finds that functional loss due to pain affecting some aspect of the normal working movements of the body has been considered and does not provide a basis for higher ratings. For example, in March 2012, there was no functional loss and/or functional impairment of the thoracolumbar spine. Moreover, the Board finds that functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination has been considered and 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating. See DeLuca, 8 Vet. App. at 204-07. Here, given that the August 2011 VA examiner found that daily activities did not seem to be extensively affected by the low back disability, and the Veteran's overall range of motion, the Boards finds that the preponderance of the evidence is against entitlement to evaluations in excess of 10 percent prior to May 30, 2008, 20 percent from May 30, 2008, to March 18, 2012, and 40 percent since March 19, 2012 based on limitation of motion. In addition, the Board acknowledges that the Veteran treats her low back disability with pain medications. Here, given the objective findings of the range of motion studies, the Board concludes that the ratings of 10 percent prior to May 30, 2008, 20 percent from May 30, 2008 to March 18, 2012, and 40 percent since March 19, 2012 most closely approximates the Veteran's functional loss due to limitation of motion. Cf. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). Associated Neurologic Abnormality As provided in Note (1), the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2013). Diagnostic Code 8520 provides that mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. 38 C.F.R. § 4.124a. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. In May 2008, the Veteran stated that pain radiated up the back and down both legs. In August 2011, right and left knee and ankle jerk were hypoactive. Right and left lower extremity vibration, position sense, pain or pinprick, and light touch were normal. There was no left or right side dysesthesias. In March 2012, right and left knee and ankle deep tendon reflexes were normal. With regard to sensation to light touch, right and left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes were normal. Right and left straight leg test raising were negative. The Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. The right and left sides were not affected by radiculopathy. Resolving all doubt in the Veteran's favor, the Board finds that the medical and lay evidence supports her entitlement to separate 10 percent ratings, and no more, under Diagnostic Code 8520, for radiculopathy of the left and right lower extremities. In light of the lay and medical evidence, however, the Board finds that at no point during the appeal has the Veteran's right or left lower extremity radiculopathy more closely approximated moderate impairment. For example, as noted above, the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy in March 2012. As such, the preponderance of the evidence is against a finding that the Veteran's right and left lower extremity radiculopathy warranted an evaluation in excess of 10 percent at any point during the appeal. Other Potentially Associated Objective Neurologic Abnormalities The preponderance of the competent evidence does not reflect any other objective neurologic abnormalities associated with the back disability, so as to warrant a separate evaluation on that account. For example, the March 2012 VA examiner noted that the Veteran had no bowel or bladder problems and pathologic reflexes. Scars Finally, the Board has considered a separate rating for scars. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (holding that evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition is not "duplicative or overlapping with the symptomatology" of the other condition). However, the March 2012 VA examiner noted that the Veteran did not have scars related to the back disability. As such, the Board finds that a separate disability rating for scars is not warranted. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's back disability claim decided here. She has not reported unusual or exceptional features associated with her back disability and the discrete manifestation of the back disability, i.e., limitation of motion of the thoracolumbar spine and neurological impairment of the lower extremities is contemplated by the rating criteria. The rating criteria are therefore adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted. Based on the evidence and analysis above, the Board finds the criteria for a schedular rating higher than 10 percent prior to May 30, 2008, 20 percent from May 30, 2008 to March 18, 2012, and 40 percent since March 19, 2012 are not met. ORDER Effective June 27, 2005, a 10 percent disability rating for the back disability is granted, subject to the rules and regulations governing the payment of VA monetary benefits. A disability rating in excess of 20 percent from May 30, 2008 to March 18, 2012, is denied. A disability rating in excess of 40 percent since March 19, 2012 for a back disability is denied. Effective June 27, 2005, a 10 percent evaluation for radiculopathy of the right lower extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Effective June 27, 2005, a 10 percent evaluation for radiculopathy of the left lower extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND The Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Thus, while the Board regrets the additional delay in this case, for the reasons discussed below, the case must be returned to the AOJ. In April 2011, the Board remanded the TDIU claim in part to obtain a VA medical opinion as to whether the Veteran's service-connected disabilities (low back, posttraumatic stress disorder (PTSD), right shoulder disability, foot disability, right ankle, scars and respiratory conditions) either alone or in the aggregate, render her unable to secure or follow a substantially gainful occupation. The Veteran underwent a VA examination in March 2012. The VA examiner opined that the Veteran's sinus, nose, throat, larynx or pharynx conditions did not impact her ability to work. The VA examiner opined that the Veteran's scars or disfigurement of the head, face, or neck did not impact her ability to work. The examiner opined that PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The VA examiner opined that the Veteran's ankle condition impacts her ability to work, and that it is feasible for her to find gainful employment. However, the examiner would recommend a job where the Veteran does not have to do an excessive amount of walking or standing. The VA examiner opined that the low back disability impacts her ability to work, although it should not affect her ability to find gainful employment. The examiner opined that the Veteran's shoulder conditions did not impact her ability to work. The VA examiner opined that the Veteran's foot condition did not impact her ability to work. The examiner did not address whether the service-connected disabilities in the aggregate render her unable to secure or follow a substantially gainful occupation. In this regard, the Board notes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Finally, because the claims file is being returned it should be updated to include VA treatment records compiled since October 2011. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the impact of her service-connected disabilities on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Attempt to obtain, physically or electronically, the Veteran's Orlando VA Medical Center treatment records that are dated since October 2011, and associate the records obtained with the claims folder. 3. Have the Veteran undergo an appropriate VA examination, to be conducted, if possible, by a VA vocational specialist, to determine the impact of her service-connected disabilities on her ability to work. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must also review all records in Virtual VA, and specifically state the date of the last record reviewed in Virtual VA. After reviewing the record and conducting any necessary tests, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that her service-connected disabilities, in the aggregate, render her unable to secure or follow a substantially gainful occupation. 4. After completion of the foregoing, readjudicate the TDIU claim. If the benefit sought on appeal remains denied, the Veteran and her representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs