Citation Nr: 1335275 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-30 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis (lumbar spine disability). 2. Entitlement to a separate evaluation for radiculopathy of the right lower extremity prior to July 30, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served honorably on active duty from May 1985 to February 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA). The December 2008 rating decision granted service connection for mild degenerative arthritis of the lumbosacral spine with mild scoliosis with an evaluation of 10 percent effective March 1, 2008. The Veteran filed a timely Notice of Disagreement to that rating decision in September 2009. The RO subsequently increased the evaluation of the lumbar spine disability to 20 percent for the entire appeal period by way of a May 2010 decision review officer (DRO) decision. The Veteran perfected her appeal in July 2010 (VA Form 9 Substantive Appeal). 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). Accordingly, the entire appeal period is at issue here. In February 2013, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims file via Virtual VA. By way of a September 2013 rating decision, the RO granted service connection for radiculopathy of the right lower extremity and assigned a 20 percent rating effective July 30, 2013. That evaluation has not been appealed. As indicated on the title page, the Board will consider whether a separate neurological rating is warranted for the entire appeal period prior to July 30, 2013, but not an increased evaluation for the separate rating. A review of the Virtual VA paperless claims processing system reveal documents that are pertinent to the present appeal, to include the Board hearing transcript and VA treatment records. A review of the Veterans Benefit Management System (VBMS) reveals no pertinent documents. FINDINGS OF FACT 1. A lumbar spine disability is manifested by range of motion in excess of 30 degrees and does not equal ankylosis and no additional functional limitations to a compensable degree. 2. Right lower extremity radiculopathy is associated with the Veteran's service-connected lumbar spine disability for the entire period of the appeal. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5237 (2012). 2. For the period of the appeal prior to July 30, 2013, a separate rating for right lower extremity radiculopathy is warranted. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injury of the Spine (General Rating Formula);38 C.F.R. § 4.71a, Diagnostic Code 8620 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication and post-adjudication VCAA notice by letters dated in September 2008 and February 2010 respectively. The Veteran was notified of the evidence needed to substantiate the claim for service connection as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for the effective date of the claim and for the degree of disability assignable. The requirement of VCAA notice does not apply for a claim on appeal for higher initial evaluations for a service-connected disability. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a notice of disagreement with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is no longer applicable in the claim for an initial evaluation for a lumbar spine disability. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Furthermore, VA provided the Veteran with adequate medical examinations in October 2008, February 2010, February 2012, and July 2013. The examinations are adequate because each contains a history obtained from the Veteran and a thorough orthopedic examination relevant to the applicable rating criteria. Finally, the Veteran provided testimony at a 2013 Board hearing. A Veterans Law Judge who chairs a hearing must fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the undersigned noted the issue on appeal. Additionally, testimony regarding the nature and severity of the Veteran's lumbar spine disability was solicited, to include the type and frequency of the symptoms she experiences as a result of such disability. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Moreover, although the hearing indicated pertinent records were available and not associated with the claims file, those records were obtained upon remand. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. This appeal was remanded by the Board in June 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the Appeals Management Center (AMC) obtain updated VA medical records and provide the Veteran with a VA examination addressing orthopedic and neurologic manifestations of the service-connected lumbar spine disability. Updated VA medical records are associated with the claims file, primarily via Virtual VA. Additionally, the Veteran was afforded a VA examination in July 2013 pursuant to the remand directives. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. Thus, the Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issues on appeal, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The 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 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board notes, however, that this rule does not apply here, because the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence 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. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's lumbar spine disability is currently evaluated as 20 percent disabling, which contemplates 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. 38 C.F.R. § 4.71a, General Rating Formula. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Under the rating criteria for intervertebral disc syndrome (IVDS), a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Also under the General Rating Formula for spine disabilities, 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). At this juncture, the Board notes that discussion of whether a separate rating is warranted for neurological abnormalities will be discussed in detail, infra, with respect to the lower right extremity radiculopathy. In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a disability evaluation in excess of 20 percent for her service-connected lumbar spine disability. Service treatment records reveal that the Veteran has a history of lower back problems since service. There is no indication of radiculopathy in service. Post-service discharge in 2008, the Veteran was afforded a VA examination in October 2008 during which she complained of lower back pain since the early 1990s. She felt pain in the posterior aspect of her lower back (a dull ache). She reported radiating pain originating from her lower back to her right posterior aspect of her right hamstring. She reported baseline pain of 3 out of 10 in intensity. She reported flare-up pain of 10 out of 10 that occurred at least three times per week associated with bending or twisting, lasting approximately half an hour, during which time she tried resting or changing positions to alleviate the pain. She reported difficulty with bending and prolonged sitting. There were no feelings of numbness, tingling, or weakness, in the right or left lower extremities although she stated that she felt painful radiation down her right leg. There were no incapacitating periods over the past 12 months with regard to her low back pain. She used Aleve to alleviate her pain and did not receive physical therapy, current injections, nor did she have a history of surgery. She did not experience bowel or bladder dysfunctions. She reported using a cane twice per month when she has difficulty walking, particularly during flare-ups. There was no history of unsteadiness or falls. She was able to ambulate approximately one mile when there are no flare-ups. With respect to daily living, the Veteran reported experiencing difficulty on a daily basis, particularly with dressing, showering, bathing, and with toileting (without any effects on grooming or feeding). Upon physical examination, range of motion testing revealed forward flexion to 90 degrees, which was pain free, extension to 25 degrees with pain, right and left lateral flexion to 30 degrees, with pain at left lateral flexion, but not with right lateral flexion. Left and right lateral rotation was up to 30 degrees and was pain free. Repetitive range of motion testing did not cause any pain, weakness, fatigability, or additional functional limitations. Upon neurological examination, strength was shown to be 5/5, sensation was 2+, reflexes were 1+. The Veteran's gait was normal. Upon palpation she had tenderness of the L5-S1 paraspinal muscles and bilateral sacroiliac joints. X-ray studies revealed mild dextroconvexed scoliosis of the lumbar spine with slight lateral translation of L4 on L5; degenerative disc disease at L4-5 and L5-S1 with facet hypertrophy. The examiner diagnosed mild degenerative arthritis of the lumbosacral spine with mild scoliosis without evidence of lumbosacral radiculopathy. The examiner found that the Veteran had mild to moderate limitations with activities of daily living. With regard to her occupation, she has functional limitations with bending, twisting, and bouncing, primarily with her lower back. Private chiropractic records reveal that in April 2009, the Veteran's range of motion testing revealed flexion to 40 degrees, 0 degrees extension, 10 degrees left rotation, 10 degrees right rotation, 10 degrees left lateral flexion and 10 degrees right lateral flexion. Pain was noted for all of these ranges of motion. Her movements were observed to be slow, restricted and guarded. Her antalgic position revealed a lumbar lean. Neurological tests (motor) were administered. For the right lower extremity, a 3/5 was noted at L1, L2, and L3. 4/5 was noted for L4 (right), 5/5 for L5 (left and right undifferentiated), and 4/5 for S1 (right). There were no abnormal neurological findings for the lower left extremity. Additionally, the physician indicated that the Veteran had constant dull and sharp, local and radiating, moderate to severe lower back pain and noted radiation from the right glut down to the right thigh and knee. The physician noted a history of the Veteran having frequent to constant mild to severe low back pain with radiculopathy down the right leg for the past twelve years due to trauma from flying helicopters in service. Sensory neurological testing revealed that both lower extremities were within normal limits. May 2009 private chiropractic notes reveal the following ranges of motion: flexion to 70 degrees, 20 degrees extension, 20 degrees left rotation, 15 degrees right rotation, 15 degrees left lateral flexion, and 15 degrees right lateral flexion. Pain was noted for all of these ranges of motion. Sensory neurological testing revealed that both of the lower extremities were within normal limits. With respect to neurological testing (motor), the Veteran tested 5/5 for both extremities at L1 through L5, and S1. The Veteran was afforded another VA examination in February 2010 during which she complained of lower back pain in the lower lumbar area and right paralumbar area with occasional sciatica down her right lower extremity posteriorly to just below the knee. She reported that these episodes may last for days and cause her to be unable to drive and have difficulty walking. She also has difficulty getting her shoes on and tying her shoelaces during these flare-ups. She stated that she treats her pain with over-the-counter medications and hot tub soaks. She has not visited the emergency room nor has she had any incapacitating episodes, although she reports remaining very sedentary and stays in bed on occasion. She ambulates with a cane occasionally during flare-ups but has not had a back brace. Her back pain can vary from mild to severe during flare-ups with limitations in bending, lifting, and ambulation. Upon physical examination, the Veteran showed difficulty arising from the sitting position. She had a flexed posture and walked slowly but had no discernible antalgia. She had normal thoracolumbar curves and a normal head position. Range of motion testing revealed forward flexion up to 70 degrees with pain in the lower lumbar area and right paralumbar musculature. She arose to the erect position slowly with pain and had 20 degrees extension. Right and left lateral bending was to 15 degrees, and right and left rotation was to 30 degrees, with pain. Her strength, coordination, and endurance were considered unimpaired, and no fatigability was noted. Neurological examination revealed no focal deficits, as she had exhibited 5/5 strength in all extremity muscle groups. Upper and lower reflexes were 2+ and equal, and sensation was intact in all dermatomes. The straight leg raise and extensor hallucis longus tests were negative bilaterally. The examiner noted that 2008 X-ray studies previously documented dextroconvex scoliosis of the lumbar spine with disk disease at L4 and L5-S1, and facet hypertrophy in her lower lumbar spine. He offered a diagnosis of degenerative disc disease of the lumbar spine with osteoarthritis and hypertrophy of the facets, and mild scoliosis. He observed that the Veteran had chronic pain and some difficulty with routine daily activities, including in relevant part, difficulty tying her shoes and ambulating during flare-ups. The Veteran underwent another VA examination in February 2012 (Disability Benefits Questionnaire). A diagnosis of degenerative disc disease of the lumbar spine was noted along with the Veteran's complaints of pain in her lower back, worse on the right than left, which has increased since she retired from service. She indicated that she felt radiation of the pain into the right leg and denied any bladder or bowel dysfunction. She can no longer play golf due to the discomfort. She did not report any flare-ups impacting the function of her lumbar spine. Range of motion testing revealed forward flexion to 90 degrees (or greater) with objective evidence of painful motion beginning at 90 degrees or greater; extension was to 15 degrees with painful motion beginning at 15 degrees; right lateral flexion was to 30 degrees or greater with objective painful motion beginning at 30 degrees; left lateral flexion was to 30 degrees or greater with painful motion beginning at 20 degrees; right lateral rotation was up to 30 degrees or greater and left lateral rotation was to 30 degrees or greater (painful motion not indicated). There was no additional limitation in range of motion after repetitive testing and no additional functional loss or impairment was observed. There was localized tenderness in the right mid to lower lumbar paravertebral musculature, but not guarding or muscle spasms resulting in any abnormal gait or abnormal spinal contour. Tests revealed that strength in the lower extremities were normal and there was no muscle atrophy. Reflexes (results were 2+ bilaterally) and sensory examination showed normal results. The straight leg test was unable to be performed. In evaluating radiculopathy, the examiner indicated that the Veteran had radicular pain or other signs/symptoms due to radiculopathy. There was mild intermittent pain located in the right lower extremity, but no other signs of radiculopathy were found. Nothing was noted for nerve roots involved or for the severity of the radiculopathy. The Veteran was not found to have IVDS. There were no other neurological abnormalities or findings related to a lumbar spine condition such as bowel or bladder problems or pathological reflexes, and the Veteran was not found to use any assistive device for locomotion at the time. X-ray studies were performed and the examiner found disk space narrowing, facet arthropathy, osteophyte formation, most prominent at L4-L5 and L5-S1. There was mild dextrocurvature of the lumbar spine at L3. No acute osseous abnormality was noted, and the examiner compared the current findings with the 2008 X-ray studies and found slight worsening of the lumbar spine osteoarthritis. Finally, the examiner noted that the Veteran's back disability did not impact her ability to work. During her 2013 Board hearing, the Veteran testified that she was unable to drive at times because of the pain radiating down her right leg. It was painful for her to be in the sitting position in the car. She indicated that she has to ambulate with a cane when her pain gets too severe. At times, she has been unable to move because of the pain, but has not sought treatment by a physician for these incapacitating episodes. Such episodes last several hours and they are brought on by long periods of sitting, standing, and walking. She has experienced two of such episodes in the last 12 months. The Veteran underwent a recent VA examination in July 2013 where the VA examiner indicated a diagnosis of lumbar spondylosis and lumbar radiculopathy. The Veteran reported pain on the right lower side of the lumbar spine. Pain was said to worsen with prolonged standing or walking. Trunk flexion seemed to help slightly and bending down increased the pain. There was no numbness, and parasthesias was occasionally felt down the back of the thigh, stopping at the knee. The Veteran occasionally felt dysasthesia and pain down below the knee on the side of the right leg into the right foot. There were no current bladder or bowel incontinence issues except when she had severe pain in the past (temporary minor incontinence in the past), which has since resolved. The Veteran reported that she experienced flare-ups when standing or walking. Range of motion testing revealed forward flexion to 45 degrees with objective evidence of painful motion beginning at 30 degrees; extension was to 20 degrees with painful motion beginning at 10 degrees; right lateral flexion was to 20 degrees with objective painful motion beginning at 10 degrees; left lateral flexion was to 20 degrees with painful motion beginning at 10 degrees; right lateral rotation was up to 20 degrees with painful motion beginning at 10 degrees; and left lateral rotation was to 20 degrees with painful motion beginning at 10 degrees. The Veteran was able to perform repetitive-use testing with three repetitions, and the range of motion findings were the same. She did not have additional limitation of motion of the lumbar spine following repetitive-use testing. However, she had functional loss or functional impairment of the lumbar spine, characterized as less movement than normal, weakened movement, pain on movement, and disturbance of locomotion. There was localized tenderness or pain to palpation in the low lumbar parasigital spine and guarding/muscle spasms which were noted to be severe enough to result in abnormal spinal contour such as scoliosis, reversed lordoisis or abnormal kyphosis. Muscle strength tests revealed 5/5 without any muscle atrophy and reflex examination revealed a 0, or absent, finding for the reflexes of the deep tendon (2+ is normal). The sensory examination (dermatome) showed normal results and the straight leg test results were negative. Upon testing for radiculopathy, the examiner noted radiculopathy with mild intermittent pain and moderate paresthesias and/or dysestheasias in the lower right extremity (without any numbness). The sciatic nerve was affected on the right side. There was no radiculopathy on the left side but an indication of moderate radiculopathy on the right side of the sciatic nerve. No other neurological abnormalities were found, such as bowel or bladder problems. The Veteran did not have IVDS. She regularly ambulated with a cane due to pain in her lower back. The examiner specifically noted that the Veteran has "significant pain with trunk flexion greater than 30 degrees at the lumbar back." Spasms of the lower thoracic upper right paraspinal muscles were noted and the low lumbar right parspinal muscles were tender to palpation. The examiner noted that the Veteran's back condition impacts her ability work as she has difficulty with putting on socks and shoes and needed a cane to ambulate. He remarked that the Veteran exhibited symptoms and signs consistent with lumbar spondylosis and intermittent right sided radiculopathy. The Board has considered the issue under the General Rating Formula and applicable Diagnostic Code 5237. In light of the pertinent evidence of record summarized above, the Board finds that the medical evidence does not nearly approximate a 40 percent disability rating for the lumbar spine, which requires, in relevant part, forward flexion of 30 degrees or less or evidence of favorable anklyosis of the entire lumbar spine. Even when considering the Veteran's disability as represented by the range of motion findings representing the worst results in terms of forward flexion of the lumbar spine, which was to 45 degrees with no change in degrees after repetitive-use testing, the 40 percent rating criteria is not met. Additionally, the record does not show any findings of anklyosis, favorable or unfavorable. See infra. The Board has considered whether there is any additional functional loss not contemplated in the current 20 percent rating. See 38 C.F.R. §§ 4.40 , 4.45, 4.59 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Factors involved in evaluating and rating disabilities of the joints include: weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes, such as more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Schedule is 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. Nonetheless, a higher rating is not assignable under a range of motion diagnostic code where pain does not cause a compensable functional loss. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Here, the Board finds that there are no additional functional limitations that warrant an increased evaluation. Although pain begins at 30 degrees of forward flexion (VA examination July 2013), pain alone does not provide for an increased evaluation. See Mitchell, 25 Vet. App. at 33, 43. Upon range of motion testing in July 2013, the Veteran was able to perform the repetitive-use testing and yield results that were the same as the initial testing, meaning she was not found to have additional limitations of motion of the lumbar spine. Repetitive motion or use causes forward flexion to 45 degrees, which does not provide for an increased evaluation under the applicable rating criteria. See 38 C.F.R. § 4.71a, General Rating Formula. She was also found to have retained full muscle strength without atrophy (5/5) at the recent examination. Despite findings of functional loss or functional impairment of the lumbar spine as characterized by less movement or painful movement and pain to palpation in the lumbar spine which the examiner found were severe enough to result in abnormal spinal contour, and recent indications of less than normal findings upon reflex testing, such produced symptomatology has been adequately considered as part of the 20 percent rating criteria. On balance, the Board finds that any additional functional loss is contemplated in the current 20 percent rating and an increased evaluation on this basis is not warranted. The Veteran has not been shown at any point to have favorable ankylosis of the entire thoracolumbar spine. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (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 across different examinations, it is apparent that the Veteran's spine is not fixated or immobile. There is no evidence of any anklyosis, thus a 50 percent and 100 percent evaluation is unwarranted. An increased evaluation under other potentially applicable diagnostic codes has also been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, an evaluation in excess of 20 percent under the diagnostic code for intervertebral disc syndrome is not warranted because the record did not demonstrate any physician-ordered bed rest. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Additionally, an evaluation in excess of 20 percent is not provided for degenerative or traumatic arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Accordingly, an increased evaluation is not warranted under these alternative diagnostic codes. Consideration has also been provided regarding whether a separate rating is required for any neurological component of the Veteran's lumbar spine disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5235, Note (1). Initially, the Board notes that the Veteran was awarded a separate evaluation for right lower extremity radiculopathy beginning on July 30, 2013. The Board herein will consider whether a separate rating for the right lower extremity is warranted for the entire period of appeal prior to July 30, 2013. See infra. With respect to any other neurological symptoms, the Board has considered such herein. The Veteran has consistently denied bowel and bladder dysfunction, and medical examiners have consistently found normal left lower extremity nerves and no left lower extremity symptoms upon appropriate neurological testing. Thus, the evidence of record indicates that other than the lower right extremity radiculopathy, an additional separate evaluation for any other neurological symptoms of a lumbar spine disability is not warranted for the entire period of the appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5235, Note (1). As previously mentioned, the issue before the Board is whether the Veteran is entitled to separate evaluation for radiculopathy of the right lower extremity prior to July 30, 2013. When the RO granted service connection for radiculopathy of the lower right extremity by way of a September 2013 rating decision, it assigned an effective date of July 30, 2013 -- the date of the latest VA examination which included objective findings by the examiner of moderate radiculopathy in the Veteran's right leg. Upon reviewing the entire evidence of record, to include objective medical findings and credible lay evidence, the Board finds that the Veteran is warranted a separate evaluation for the service-connected radiculopathy of the right lower extremity for the entire period of the appeal prior to July 30, 2013. As previously summarized, an April 2009 private treatment record indicates that upon objective motor testing, the Veteran was shown to have produced neurological symptomatology in the right lower extremity which the examining physician translated as radiculopathy down the right leg in connection with the Veteran's back disability. The physician considered the Veteran's 12-year history of constant low back pain with associated radiculopathy. The physician specifically indicated that the lower back pain was constant dull and sharp, local and radiating, moderate to severe and indicated a finding of radiculopathy originating from the right glut and traveling down the right thigh and knee. The record evinces a chronology documenting the existence and progression of the Veteran's right lower extremity radiculopathy since the beginning of the appeal prior to July 30, 2013. The October 2008 VA examination shows reports of radiating pain down the lower right extremity. Reports of occasional sciatica in the right lower extremity were also made at the February 2010 VA examination. Radiculopathy in the lower right extremity was found upon objective testing and noted at the VA examination in February 2012. Lay statements document a consistent complaint of radiating pain down the right leg throughout the appeal period. In fact, complaints of radiculopathy or pain radiating through the right lower extremity have often appeared in the record alongside complaints of constant low back pain going back to the beginning of the appeal period. Complaints of radiculopathy to medical professionals are also documented in 2011 VA treatment records. A September 2011 primary care clinic note showed that the Veteran complained of pain shooting down her leg at least once per month. A November 2011 physical therapy note indicates that the Veteran complained of low back pain with more pain on the right side than left side, as pain radiated through the right leg to the calf. Furthermore, as aforementioned, the Veteran testified at her 2013 Board hearing that she was unable to drive and sit for prolonged periods of time because of the pain radiating down her right leg. This has affected her ability to volunteer (work) and participate in other physical activities. In conclusion, the Board finds that there is sufficient evidence of record to suggest that the Veteran's service-connected radiculopathy was present prior to the VA examination in July 2013. As objective evidence of radiculopathy has been shown since April 2009, and related reports of symptomatology documented since 2008, there is a finding of right lower extremity radiculopathy since the beginning of the appeal period. The Board notes that there are negative neurological findings at each of the VA examinations in 2008, 2010, and 2012. However, most of those findings persisted even at the time of the 2013 examination, when the examiner provided a diagnosis of radiculopathy. This indicates that radiculopathy may objectively be present despite negative neurological findings; thus, the Board cannot rely on the earlier negative findings to deny such an evaluation. Accordingly, the Board finds that the evidence of record warrants a separate evaluation for radiculopathy of the right lower extremity for the period of the appeal prior to July 30, 2013. 38 U.S.C.A. § 5110. Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluation in this case is not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected lumbar spine disability but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's lumbar spine disability, as the criteria assess limitation of range of motion, additional functional loss, and neurological manifestations. Accordingly, this issue need not be referred for consideration of extraschedular ratings. ORDER An initial evaluation in excess of 20 percent for the service-connected lumbar spine disability is denied. A separate evaluation for radiculopathy of the right lower extremity is granted for the entire appeal period. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs