Citation Nr: 1335610 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 04-27 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 40 percent for L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from January 1981 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2002 and November 2002 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In the June 2002 rating action, the RO denied the Veteran's claim for an increased rating for his service-connected low back disability. In a Memorandum from the Veteran's representative, Disabled American Veterans (DAV), dated in October 2002, the DAV requested a higher evaluation for the Veteran's service-connected low back disability. According to the DAV, if a favorable decision was not rendered, they requested that the October 2002 Memorandum be accepted as a Notice of Disagreement (NOD) in regard to the June 2002 rating action, which continued the Veteran at 40 percent disabling for his low back disability. In the November 2002 rating action, the RO denied the Veteran's claim for, among others, a TDIU due to service-connected disabilities. In January 2003, the Veteran submitted an NOD in which he stated that he wished to appeal the November 2002 rating action. In May 2004, the RO issued a statement of the case (SOC) which addressed the aforementioned issues. The Veteran filed a timely substantive appeal (VA Form 9) in June 2004. In March 2010, a video-conference hearing was held before a Veterans Law Judge who has since retired from the Board. A transcript of the hearing is associated with the claims file. In April 2010, the Board remanded the matters for additional evidentiary development. The Board also remanded the issues of entitlement to an increased rating for a bilateral knee disability, and entitlement to a temporary total disability evaluation under 38 C.F.R. § 4.30 based on a need for convalescence following left knee surgery on June 19, 2002, for the issuance of a SOC, pursuant to the holding in Manlincon v. West, 12 Vet. App. 119 (1998). Relevant to the temporary total disability claim, by way of a November 2011 rating decision, the RO granted the claim. Moreover, the RO, by way of the November 2011 rating decision, assigned separate ratings for the Veteran's service-connected bilateral knee disability, and issued a subsequent November 2011 SOC. However, the Veteran did not submit a substantive appeal subsequent to the November 2011 SOC. Consequently, such issues are not before the Board at this time. The November 2011 rating decision also extended the Veteran's temporary total rating for his lumbar spine disability based on a need for convalescence following surgery to March 1, 2003. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. As relevant to the instant appeal, a review of the Virtual VA claims file reveals no additional evidence, other than the October 2013 Appellant's Brief, pertinent to the appeal. Finally, in a letter dated on July 18, 2013, the Board notified the Veteran that the Veterans Law Judge who conducted his hearing in March 2010 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another hearing. See 38 C.F.R. § 20.717 (2013). The Veteran was informed that, if he did not respond within 30 days from the date of the letter, the Board would assume he did not want another hearing and would proceed accordingly. The Veteran has not responded to the letter. There is no indication that the Veteran did not receive the letter, as it was sent to his current address on file with VA, and has not returned as undeliverable. Therefore, the Board assumes the Veteran does not want another hearing, and will proceed accordingly with the appeal. The issue of entitlement to a 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, D.C. FINDINGS OF FACT 1. The rating criteria pertaining to the evaluation of spine disabilities in effect prior to September 23, 2002, is the most favorable to the Veteran. 2. Throughout the entire appeal period, exclusive from the temporary total rating convalescence period from December 13, 2001 to March 1, 2003, the Veteran's L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy, is manifested by no more than severe intervetebral disc syndrome with pain, weakness, fatigue, lack of endurance, stiffness, flare-ups, and tenderness to palpation, resulting in limitation of range of motion, abnormal posture, gait, and spine curvatures, and mild neurological impairment of the bilateral lower extremities, to include numbness and shooting or radiating pain with absent deep tendon reflexes, knee jerks, and ankle jerks on only a single occasion, without a vertebral fracture, incapacitating episodes, or unfavorable ankylosis of lumbar spine, thoracolumbar spine, or entire spine. 3. As of December 13, 2001, the Veteran's L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy, resulted in superficial scars that are tender and painful on objective demonstration. CONCLUSIONS OF LAW 1. Throughout the entire appeal period, exclusive from the temporary total rating convalescence period from December 13, 2001 to March 1, 2003, a rating in excess of 40 percent is not warranted for the L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Codes 5292, 5293, 5295 (effective prior to September 23, 2002), Code 5293 (effective from September 23, 2002), Codes 5237, 5243 (effective September 26, 2003). 2. As of December 13, 2001, a separate 10 percent rating, but no higher, for scars associated with L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy, is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran was sent a letter in September 2009 that fully addressed all notice elements with respect to the issue of entitlement to a higher rating for the service-connected low back disability. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The Board acknowledges that this notice was not issued prior to the adverse determination on appeal. However, the claim was readjudicated in the March 2011 supplemental statement of the case. Accordingly, any timing deficiency has been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of private treatment, VA treatment, and VA examinations. A review of Virtual VA claims processing system does not reveal any additional VA treatment records. Moreover, the Veteran's statements and Board hearing testimony in support of the claims are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Additionally, the Veteran was afforded VA examinations in May 2002, August 2003, and October 2010 to evaluate the severity of his service-connected back disability. Neither the Veteran nor his representative has alleged that such is inadequate for rating purposes. Moreover, the Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected back disability as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent October 2010 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). Additionally, in March 2010, the Veteran was provided an opportunity to set forth his contentions during a hearing before a Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to 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. Here, during the March 2010 hearing, the Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the nature, severity, and frequency of the Veteran's back symptomatology and the functional impact such disability has on his daily life and employment. Therefore, not only was the issue "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, while the hearing discussion did not reveal any evidence that might be available that had not been submitted, such indicated that the Veteran's back disability may have increased in symptoms and/or severity. Therefore, the Board remanded the case in April 2010 so as to afford him a contemporaneous VA examination, which was conducted in October 2010. 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 Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Finally, the Board finds that there was substantial compliance with the April 2010 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in April 2010 directed the RO to issue an SOC to the Veteran that addressed the issues of entitlement to an increased rating for the service-connected bilateral knee disability, and entitlement to a temporary total disability evaluation based on a need for convalescence following left knee surgery on June 19, 2002. As noted above, relevant to the bilateral knee disability, the RO issued an SOC in November 2011; however, the Veteran did not perfect his appeal as to such issues. Moreover, by way of a November 2011 rating decision, the RO granted the Veteran's temporary total disability evaluation claim. Further, the RO was also directed to schedule the Veteran for a VA examination. As noted above, the Veteran was afforded a VA examination in October 2010 that is adequate for appellate review. Accordingly, the Board finds that there has been substantial compliance with the April 2010 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). II. Analysis Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings for distinct periods of time, based on the facts are for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consequently, the Board has considered whether staged ratings are warranted up to one year prior to the date of claim of January 2002. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran is currently in receipt of a 40 percent rating for his back disability, characterized as L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002), (2003), which pertains to the evaluation of lumbosacral strain. He has also been awarded a temporary total evaluation pursuant to 38 C.F.R. § 4.30 from December 13, 2001, to March 1, 2003. However, as indicated by the evidence of record, the Veteran's back disability includes degenerative disc disease and spinal stenosis with radiculopathy. As such, the Board finds that his back disability is more appropriately rated under Diagnostic Codes pertaining to the evaluation of intervetebral disc syndrome, i.e., Diagnostic Code 5293 (2002). In Butts v. Brown, 5 Vet. App. 532 (1993), the Court held that the selection of the proper diagnostic code is not a question of law subject to the de novo standard of review. Accordingly, the Court held in Butts that as VA and the Board possess specialized expertise in determining the application of a particular diagnostic code to a particular condition, their determination is due greater deference. Indeed, the Court has also held that, although the reason for the change must be explained, the VA and the Board may change the diagnostic codes under which a disability or disabilities are evaluated. Pernorio v. Derwinski, 2 Vet.App. 625 (1992). In this regard, in Murray v. Shinseki, 24 Vet.App. 420 (2011), the Court held that a VA medical examination showing that the symptoms upon which a disability rating was based are no longer present cannot act to reduce that disability rating if it has been in effect for more than 20 years, and thus protected by regulation. 38 C.F.R. § 3.951(b). Additionally, the Court held that change of Diagnostic Codes under which Veteran's disability was rated was error where change effectively reduced to zero disability rating which had been in effect for more than 20 years, and thus protected by regulation. Id. In the instant case, the Veteran has been service-connected for his back disability since September 27, 1983, and such has been rated as 40 percent disabling since July 29, 1987. As the Veteran's 40 percent rating for his back disability has been in effect for more than 20 years, it is protected by regulation. However, in the instant case, the Board is changing the Diagnostic Code under which the disability is rated so as to more accurately represent the Veteran's symptomatology associated with his back disability and is continuing the 40 percent rating. Therefore, such a change of Diagnostic Codes doees not reduce the Veteran's disability rating and, therefore, Murray is inapplicable in the instant case. The Board observes that the schedular criteria for rating spine disabilities have been amended twice during the pendency of the Veteran's appeal. The rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a , Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345 -54,349 (August 22, 2002). Second, effective September 26, 2003, the rating criteria for evaluating all spine disorders were amended. See 68 Fed. Reg. 51,454 -51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). Pursuant to governing legal precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. See VAOPGCPREC 7-03, 69 Fed. Reg. 25,179 (November 19, 2003), citing to Landgraf v. USI Film Products, 511 U.S. 244 (1994). In increased rating cases such as this one, where the rating criteria is amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2013). Moreover, as the Veteran's claim was pending at the time of both regulatory amendments, he is entitled to the application of the criteria most favorable to his claim. See generally, Kuzma, supra; VAOPGCPREC 7-2003. As the Veteran's back disability has demonstrable neurological involvement and is evaluated under criteria pertinent to intervertebral disc syndrome, both the September 2002 and September 2003 amendments are applicable to evaluating such disability. The Board notes that the rating decisions, statement of the case, and supplemental statements of the case issued during the course of the appeal collectively informed the Veteran of all sets of regulations and considered his claim under each set. Moreover, the January 2008 supplemental statement of the case provided the rating criteria in effect prior to September 2002, as of September 2002, and as of September 2003. Therefore, there is no prejudice in the Board considering the regulation changes in adjudicating the Veteran's increased rating claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to 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 Rating 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. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). A January 2001 private treatment record reflects that the Veteran underwent surgery for his back disability in December 2001. The pre- and post-operative diagnoses were L5-S1 degenerative disc disease and spinal stenosis. On a May 2002 VA examination, it was noted that the Veteran's established diagnosis was L5-S1 degenerative disc disease and spinal stenosis. It was noted that the Veteran underwent surgery in December 2001 and developed a post-surgical complication of nerve irritation and pain. He also reported constant back pain with severity changes. The Veteran further indicated that he had weakness, fatigue, lack of endurance, and stiffness. He stated that his back pain flares up when he tries to sit or lay for prolonged periods of time. He indicated that the flare-ups interfere with his ability to ambulate or play with his children. The Veteran reported that he is experiencing an abnormal sensation in the right first, and sometimes the right second, toes. He also reported pins and needles at the ball of the foot and shooting pain down the right lower extremity to the toes. Physical examination revealed that the Veteran was able to ambulate without the use of assistive devices. He was in no apparent distress. He was able to sit up from a supine position and transfer from a chair to the examination table without major difficulties. The Veteran's posture was noted to be abnormal in that he held himself in an erect and stiff posture. His gait was also abnormal in that it was slow with a slight limp. The examiner noted that the Veteran did appear to have limitations in standing and walking due to the low back condition. Examination of the back revealed a well-healed scar in the mid-lumbar area, which was 12 centimeters. It was noted to be purple in coloration and sensitive to light touch with tenderness. There was also pain in the right paraspinal area that is due to the bone graft taken for the lumbar spine surgery. It measured 3.5 centimeters, was purple, and tender with palpation. There was also evidence of painful motion, muscle spasm, and tenderness in the lumbar midline and paraspinal area; there was no weakness; there was no pain with straight-leg raises test in the left leg; the Veteran did experience numbness in the first toe at 30 degrees of flexion on the right, but there was no pain radiating from the back down to the foot with straight-leg raise test on the right. Range of motion studies revealed flexion of 20/95 degrees; extension 10/35 degrees; right lateral flexion 30/40 degrees; left lateral flexion 35/40 degrees; right rotation 25/35 degrees; and left rotation 25/35 degrees. The Veteran did experience pain all ranges of motion of the lumbar spine and range of motion in the lumbar spine was additionally limited by pain. Neurological examination revealed that motor strength to the lower extremities was normal with muscle strength 5/5 in all lower extremity muscle groups; there was no muscle atrophy. Sensory examination was abnormal in that there was decreased sensation in the bilateral right toes, in the right foot in the web between the first and second toe, and the lateral aspect of the right foot. There were normal reflexes in the knee jerks bilaterally. The examiner essentially noted that the Veteran's medical condition interfered with his ability to perform his occupation as a security patrol officer since it required prolonged standing and walking. A November 2002 letter from the Veteran's private physician, Dr. Jackson, indicates that the Veteran has had lumbar spinal fusion and an additional procedure to remove the surgical hardware. He further indicated that the Veteran's back disorder had been diagnosed as lumbar intervetebral disc syndrome with sciatica, which had resulted from his degenerative disc disease. Dr. Jackson noted that the Veteran continued to have persistent severe low back pain with bilateral sciatica that precluded him from seeking employment. Additionally, at the present time, he indicated that the Veteran had persistent low back spasms and radiculopathy down both legs. Dr. Jackson concluded that the Veteran was currently unable to return to work, would not be able to return to his previous employment, and would need vocational rehabilitation to seek some kind of employment that would fall within the work restrictions he would set forth upon the Veteran's release. Also in November 2002, the Veteran underwent surgery to remove retained hardware in his lumbar spine. A December 2002 letter from a private physician, Dr. Wang, indicated that the Veteran continued to have some radiculopathy from the surgery , which has improved to a certain point, but there was some residual. He further stated that the Veteran was currently totally disabled, would be unable to return to his previous employment, and would require vocational rehabilitation to seek some kind of employment that would fall within the work restrictions. On an August 2003 VA examination, the Veteran reported that his back feels weak and stiff. He indicated that coughing and sneezing aggravate his low back pain. The Veteran reported that on the left, his pain goes down from the hip to the knee and on the right, the pain goes all the way into his big toe. He reported that he was doing swimming for his back. Physical examination of the back reveals 60 degrees of flexion and 0 degrees of extension, right bending and left bending. Most of the flexion was noted at the hips, the lumbar spine was straight. There was no lordosis. Forward flexion did not change its configuration, extension and bending also occurred at the hips, and pain was noted at the extent of forward flexion. Relevant to DeLuca, the examiner noted that pain was caused by motion. There was no radiation of pain on movement, muscle spasm, or tenderness. Straight leg raising is negative. The examiner noted that there were signs of radiculopathy present on the right side, which included subjective factors of pain radiating down the right lower extremity into the big toe. He further observed that there were no objective factors. Neurological examination revealed that there were no sensory changes, no motor changes with the exception of the atrophy of the left quadriceps which the examiner noted was not related to his back difficulty (but, rather, to the knee disability); deep tendon reflexes, knee jerks, and ankle jerks were absent bilaterally. The examiner noted that if a fusion between L5 and S1 indicates ankylosis, then such was, in fact, present as the Veteran has a solid fusion between L5 and S1. He stated that the Veteran is limited in his daily activities in the amount of sitting, walking, and lifting he can do. In an addendum opinion, the examiner noted that the Veteran's ankylosis between L5 and S1 is a surgical fusion and is favorable. At such time, it was also noted that the Veteran last worked in 2001 as a dispatcher. However, he had not worked in two years. An April 2004 VA treatment record reflects that the Veteran was currently unemployed. At such time, he had mild tenderness to palpation on paraspinal lumbar area. He also had 2+ deep tendon reflexes bilaterally, 5/5 motor, and sensory was intact. In December 2005, the Veteran sought treatment for a flare-up of back pain with bilateral lower extremity weakness. A January 2006 MRI showed small L4-5 disc bulging without nerve root impingement. No bowel or bladder impairment was noted. During the March 2010 Board hearing, the Veteran testified that he currently was experiencing spasming in his lower back with pain radiating down through his legs, down to his toes that is constant. The Veteran also testified that he was currently employed and had been employed since late 2004, or early 2005. On an October 2010 VA examination, the Veteran reported a history of fatigue, decreased motion, stiffness, weakness, spasm, and spine pain. He reported that the pain is mid back with radiation into the left leg, left buttock and down into the toes. He reported that the onset of the pain occurs with stair climbing and walking; and that it is a sharp, dull deep ache. The examiner noted that there were no incapacitating episodes of spine disease. Physical examination revealed that the spine was normal; head position was normal; the spine was symmetrical; the Veteran displayed abnormal gait as he was waddling favoring the left knee; there were abnormal spinal curvatures; there was no noted low back spine ankylosis; there was no spasm; no atrophy; there was guarding, pain with motion, tenderness, and weakness; there was no muscle spasm, localized tenderness or guarding severe enough to be responsible for an abnormal gait or abnormal spinal contour. Range of motion of the thoracolumbar spine revealed flexion 0 to 65 degrees; extension 0 to 20 degrees; left lateral flexion 0 to 15 degrees; left lateral rotation 0 to 15 degrees; right lateral flexion 0 to 15 degrees; right lateral rotation 0 to 15 degrees. There was objective evidence of pain on active range of motion. There was objective evidence of pain following repetitive motion; however there were no additional limitations after three repetitions of range of motion. Reflex exam findings document 2+ bilaterally knee jerk and ankle jerk. Plantar flexion was normal bilaterally. Sensory examination of the lower extremities document a normal examination for the right leg and decreased sensation to pain or pinprick for the left leg. The motor examination revealed all extremities had active movement against full resistance. There was no evidence of a vertebral fracture. The Veteran reported that he was employed full-time as a facility director at a church for the past two to five years. He reported that during the previous 12 months, he had loss less than 1 week of work time, and that was due to medical appointments. The examiner noted that the Veteran's lumbar disability affected his occupational activities with lifting and carrying; lack of stamina; weakness or fatigue. The examiner also noted that the Veteran's daily activities were effected in that he was unable to drive for any length of time, sitting is difficult, no sports, no recreation, no exercise, sleeping is difficulty with only 4-6 hours a night. As indicated previously, the rating criteria for the evaluation of spine disabilities has been amended twice during the pendency of the Veteran's appeal. Therefore, the Board will consider the evidence of record, as detailed above, in light of each set of regulations. Throughout the entire appeal period, exclusive from the temporary total rating convalescence period from December 13, 2001 to March 1, 2003, the Board finds that the Veteran's L5-S1 degenerative disc disease and spinal stenosis with radiculopathy is manifested by no more than severe intervetebral disc syndrome with pain, weakness, fatigue, lack of endurance, stiffness, flare-ups, and tenderness to palpation, resulting in limitation of range of motion, abnormal posture, gait, and spine curvatures, and mild neurological impairment of the bilateral lower extremities, to include numbness and shooting or radiating pain with absent deep tendon reflexes, knee jerks, and ankle jerks on only a single occasion, without a vertebral fracture, incapacitating episodes, or unfavorable ankylosis of lumbar spine, thoracolumbar spine, or entire spine. Criteria in effect prior to September 23, 2002 Under Code 5293, a 40 percent is warranted for severe disc syndrome, with recurring attacks and only intermittent relief; and a 60 percent rating is warranted for pronounced disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Code, 5293. As previously discussed, as the Veteran's back disability includes degenerative disc disease and spinal stenosis with radiculopathy. As such, the Board finds that his back disability is more appropriately rated under Diagnostic Codes pertaining to the evaluation of intervetebral disc syndrome, i.e., Diagnostic Code 5293 (2002). As noted, under the criteria in effect prior to September 23, 2002 a rating in excess of 40 percent for low back disability (i.e., 60 percent) is warranted for pronounced intervertebral disc syndrome (Code 5293). Also a rating in excess of 40 percent is warranted for vertebral fracture or unfavorable ankylosis of the lumbar spine (Codes 5285 and 5289). Since neither a vertebral fracture nor unfavorable ankylosis of the lumbar spine is shown, ratings under Codes 5285 and 5289 are not warranted. As for Code 5293, the evidence does not reflect pronounced intervertebral disc syndrome. Significantly, while the August 2003 VA examination document knee and ankle jerks were absent, the same examination documents that there were essentially no sensory or motor changes, and while there was some stiffness and pain in the lumbosacral spine, spasm was not noted. Likewise, while muscle spasms were noted in May 2002 and November 2002, such was during the Veteran's temporary total rating and, since such time, the only evidence of spasms are the Veteran's statements. There is no objective evidence demonstrating such symptomatology. In this regard, while the Veteran is competent to describe the sensation he experiences in his back, he is not competent, as a lay person, to attribute such sensations to an internal cause, to include a muscle spasm. Additionally, other VA examinations, to include the most recent examination, shows knee and ankle jerks that are present; and the VA examinations continue to document no muscle spasm, or objective findings of sciatic neuropathy. Moreover, the Veteran sought treatment on only a single occasion for a flare-up of his disc disease. The remainder of the treatment records, dated through 2011, fail to detail any additional complaints. Thus, such suggests that the Veteran does not experience persistent symptoms little intermittent relief. In sum, pronounced disc disease is not shown, and a 60 percent rating under Code 5293 is not warranted at any time during the course of the appeal under this criteria. Criteria effective September 23, 2002 Code 5293 was revised effective September 23, 2002. The revised Code 5293 provided that intervertebral disc syndrome should be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations, whichever method results in the higher rating. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id., Note (2). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (3). The Veteran is not shown to have had any incapacitating episodes (bedrest on physician's orders), other than the temporary total rating, of lumbar disc disease at any time during the appeal period. Therefore, a higher rating under such rating criteria is not warranted. Regarding chronic orthopedic manifestations of the Veteran's back disability, the relevant rating criteria is as follows: Slight limitation of motion of the lumbar spine warrants a 10 percent disability rating. Moderate limitation of motion of the lumbar spine warrants a 20 percent disability rating. Severe limitation of motion of the lumbar spine warrants a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002), (2003). Lumbosacral strain with characteristic pain on motion warrants a 10 percent disability rating. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, warrants a 20 percent disability rating. Severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002), (2003). In the instant case, the evidence shows that, while the Veteran's limitation of motion at the May 2002 examination was flexion of 20/95 degrees; extension 10/35 degrees; right lateral flexion 30/40 degrees; left lateral flexion 35/40 degrees; right rotation 25/35 degrees; and left rotation 25/35 degrees. Additionally, while it was observed that he Veteran did experience pain all ranges of motion of the lumbar spine and range of motion in the lumbar spine was additionally limited by pain, no additional range of motion measurements were provided. However, the Board finds that such ranges of motion results in no more than moderate limitation of motion of the lumbar spine. In this regard, while the Veteran's flexion and extension were fairly reduced, he had almost full range of motion of bilateral flexion and bilateral rotation. Moreover, at the time of such examination, he was in receipt of a 100 percent temporary rating as he had recently had surgery in December 2001 and was still in the process of rehabilitating. Likewise, at the August 2003 VA examination, while the Veteran had zero degrees of extension, and right and left bending , he was capable of 60 degrees of flexion. Furthermore, in October 2010, his range of motion of the thoracolumbar spine revealed flexion 0 to 65 degrees; extension 0 to 20 degrees; left lateral flexion 0 to 15 degrees; left lateral rotation 0 to 15 degrees; right lateral flexion 0 to 15 degrees; right lateral rotation 0 to 15 degrees. There was objective evidence of pain on active range of motion. There was objective evidence of pain following repetitive motion; however there were no additional limitations after three repetitions of range of motion. Therefore, as the evidence fails to demonstrate severe limitation of lumbar spine motion, even in consider of additional symptoms as delineated by DeLuca, supra, there was no additional function loss as defined by Mitchell, supra. Therefore, as the Veteran's back disability does result in moderate limitation of motion of the lumbar spine, he would be entitled to a 20 percent rating based on such orthopedic manifestations as defined in Diagnostic Code 5292. The Board has also considered the applicability of Diagnostic Code 5295 relevant to lumbosacral strain; however, the criteria required for a 20 percent rating would be contemplated by the Veteran's 20 percent rating under Diagnostic Code 5295 (since, as previously determined, the competent evidence fails to demonstrate muscle spasms following the Veteran's 100 percent temporary rating). See Esteban, supra. Furthermore a 40 percent rating is not warranted under such Diagnostic Code a there is no severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent disability rating. Pertinent to chronic neurologic manifestations, the Board finds that the Veteran meets the criteria for 10 percent evaluations for left and right lumbar radiculopathy under Diagnostic Code 8520 in contemplation of mild incomplete paralysis of the sciatic nerve bilaterally. Specifically, in May 2002, the Veteran reported an abnormal sensation in his right toes, pins and needles at the ball of the foot, and shooting pain down the right lower extremity to the toes. Upon examination, there was numbness in the right toe and sensory examination was noted to be abnormal with decreased sensation in the right toes; however, motor strength, muscle strength, and reflex testing were normal and there was no muscle atrophy. In November 2002 and December 2002, the Veteran's private physicians likewise noted bilateral sciatica. In August 2003, the Veteran reported radiating pain on the left and right. While neurological examination revealed no sensory changes and no motor changes related to the back, deep tendon reflexes, knee jerks, and ankle jerks were absent bilaterally; however, in April 2004, the Veteran had 2+ deep tendon reflexes bilaterally, 5/5 motor, and sensory was intact. At his March 2010 hearing, the Veteran reported radiating pain down his lower extremities. He again reported such symptoms in October 2010 and sensory examination revealed decreased sensation to pain or pinprick for the left leg; however, reflex examination findings showed 2+ bilaterally knee and ankle jerks, normal plantar flexion bilaterally, normal sensory examination for the right leg, and motor examination showed active movement against full resistance. Pertinent to the rating of neurologic conditions, the term "incomplete paralysis" indicates impairment of function of a degree substantially less than the type of picture for complete paralysis given for 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. 38 C.F.R. § 4.124a , Note. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, incomplete paralysis. 38 C.F.R. § 4.123 . Peripheral neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. A 10 percent evaluation is warranted where there is mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is warranted where there is moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is assigned where there is moderately severe incomplete paralysis of the sciatic nerve. A 60 percent evaluation is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation is assigned where there is complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a , Diagnostic Code 8520. The evidence of record reflects that the Veteran's left and right lumbar radiculopathy is manifested by subjective complaints of radiating pain and numbness with decreased sensation and, on a single occasion deep tendon reflexes, knee jerks, and ankle jerks were absent bilaterally. As the Veteran's complaints are wholly sensory with only a single instance of decreased reflexes, the Board finds that his left and right lumbar radiculopathy warrants 10 percent evaluations under Diagnostic Code 8520 in contemplation of mild incomplete paralysis of the sciatic nerve bilaterally. Therefore, based on the preceding findings, if the Board were to combine, under 38 C.F.R. § 4.25, separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, the Veteran's resulting combined disability rating would be 50 percent, effective March 1, 2003. He currently is in receipt of a 50 percent combined disability rating, effective March 1, 2003; a 60 percent combined disability rating, effective August 12, 2003; and a 50 percent disability rating from October 18, 2010. Therefore, by evaluating his chronic orthopedic and neurologic manifestations of his back disability separately, the Veteran is not entitled to a higher rating. As such, a rating in excess of 40 percent under Diagnostic Code 5293 (2003) is not warranted for the Veteran's back disability. Criteria effective September 26, 2003 The new regulations that became effective on September 23, 2003, revised the schedular criteria for the rating of all spine disabilities. See 38 C.F.R. § 4.71a , Diagnostic Code 5235-5243 (2013). The revised criteria provide that intervertebral disc syndrome can be evaluated (preoperatively or postoperatively) either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula, 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, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is 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 cervical spine is 340 degrees and 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome can also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Such provides that a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under 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): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of 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. Under the General Rating Formula, the Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent. In this regard, the preponderance of the evidence of record fails to demonstrate unfavorable ankylosis of the entire thoracolumbar spine or entire spine. Additionally, the Board notes that, under Note (1) of the General Rating Formula, any associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code. In this regard, as discussed in the preceding section, if the Board were to separately rate the Veteran's chronic orthopedic and neurologic manifestations of his back disability, he would be entitled to a 40 percent rating under the General Rating Formula in contemplation of forward flexion of the thoracolumbar spine limited to 30 degrees or less and 10 percent evaluations for his left and right lumbar radiculopathy under Diagnostic Code 8520 in contemplation of mild incomplete paralysis of the sciatic nerve bilaterally. As indicated previously, if the Board were to combine under 38 C.F.R. § 4.25 the separate evaluations of chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, the Veteran's resulting combined disability rating would be 50 percent, effective March 1, 2003. He currently is in receipt of a 50 percent combined disability rating, effective March 1, 2003; a 60 percent combined disability rating, effective August 12, 2003; and a 50 percent disability rating from October 18, 2010. Therefore, by evaluating his chronic orthopedic and neurologic manifestations of his back disability separately, the Veteran is not entitled to a higher rating. As such, a rating in excess of 40 percent under the General Rating Formula is not warranted for the Veteran's back disability. When considering the Veteran's back disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Board again notes that he does not experience incapacitating episodes. Other considerations The Board notes that the May 2002 VA examination revealed scarring associated with the Veteran's December 2001 spinal surgery. Specifically, such noted a well-healed scar in the mid-lumbar area, which was 12 centimeters. It was noted to be purple in coloration and sensitive to light touch with tenderness. There was also pain in the right paraspinal area that is due to the bone graft taken for the lumbar spine surgery. It measured 3.5 centimeters, was purple, and tender with palpation. As the Veteran's claim has been pending prior to the August 2002 regulation changes referable to the evaluation of skin disabilities, the regulations in effect prior to such date are for application. In this regard, 38 C.F.R. § 4.118, Diagnostic Code 7804 provides that a 10 percent rating is warranted for superficial scars that are tender and painful on objective demonstration. As tenderness on palpation was shown on examination in May 2002, the Board finds that a 10 percent rating is warranted for the Veteran's symptomatic scarring associated with his back disability as of December 13, 2001, the date of the Veteran's surgery that caused the scarring. In making its determinations in this case, the Board has also carefully considered the Veteran's contentions with respect to the nature of his service-connected back disability and notes that his lay testimony is competent to describe certain symptoms associated with such disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected back disability. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected back disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration for any of the disabilities at issue. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected back disability with the established criteria found in the rating schedule. The Board finds that the Veteran's back disability is contemplated by the rating criteria under which it is rated. Specifically, Diagnostic Code 5293 (2002) contemplates the orthopedic and neurologic impairment that he experiences as a result of his disc disease. Furthermore, such rating takes into account the functional loss associated with symptoms that are not specifically delineated in the rating criteria, to include fatigue, weakness, pain, lack of endurance, etc. See DeLuca, supra; Mitchell, supra. Furthermore, the Board has herein awarded a separate compensable rating for symptomatic scarring associated with such disability. Therefore, the Board finds that the diagnostic criteria adequately addresses the whole of the Veteran's symptoms referable to his service-connected back disability. There are no additional symptoms of the service-connected disabilities at issue. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected back disability. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating for any of the service-connected disabilities addressed above is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As such claim has been separately appealed and requires additional development, which is addressed in the Remand section below, the Board finds that it is unnecessary to further address such issue at this time. In sum, Board finds that the preponderance of the evidence is the Veteran's increased rating claim on appeal; as such, the benefit of the doubt doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 40 percent for L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy, is denied. As of December 13, 2001, a separate 10 percent rating, but no higher, for scars associated with L5-S1 degenerative disc disease and spinal stenosis with radiculopathy, status post lumbar fusion and laminectomy, is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND The Veteran is also seeking entitlement to TDIU. He is service-connected for a back disability, residual scarring associated with such disability, a right knee disability, a left knee disability, and a fracture of the right second toe. In order to establish service connection for a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there is only one such disability, such is ratable at 60 percent or more and, if are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). In light of the Board's award of a separate 10 percent rating scarring associated with the Veteran's back disability, and the November 2011 rating decision awarding increased ratings for the Veteran's bilateral knee disabilities, a remand is necessary in order for the AOJ to readjudicated the Veteran's TDIU claim. Additionally, in the readjudication of the Veteran's claim, the AOJ should specifically consider the provisions in 38 C.F.R. § 4.16(a) that provides that, for the purpose of one disability, the following will be considered as one disability: disability of one or both of the lower extremities, including the bilateral factor, if applicable, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, i.e., orthopedic. Moreover, prior to such readjudication, the Board finds that an opinion regarding the impact of the Veteran's service-connected disabilities has on his employability during the entire appeal period. In this regard, the Veteran filed his claim for a temporary total rating based on his December 2001 surgery, which triggered the current appeal involving an increased rating for such disability, in January 2002. Therefore, the relevant time period stems from January 2001 to the present. While the current evidence of record shows that the Veteran is currently employed full-time, there were time periods during the course of the appeal where he was unemployed. Moreover, statements by his physicians indicate that such employability was the result of his service-connected disabilities, to specifically include his back disability. In this regard, as noted previously, a November 2002 letter from Dr. Jackson indicates that the Veteran's severe low back pain with bilateral sciatica that precluded him from seeking employment. Dr. Jackson concluded that the Veteran was currently unable to return to work, would not be able to return to his previous employment, and would need vocational rehabilitation to seek some kind of employment that would fall within the work restrictions he would set forth upon the Veteran's release. Likewise, Dr. Wang indicated in December 2002 that the Veteran was currently totally disabled, would be unable to return to his previous employment, and would require vocational rehabilitation to seek some kind of employment that would fall within the work restrictions. At the August 2003 VA examination, it was also noted that the Veteran last worked in 2001 as a dispatcher. However, he had not worked in two years. An April 2004 VA treatment record reflects that the Veteran was currently unemployed. In March 2010, the Veteran testified that he was currently employed and had been employed since late 2004, or early 2005. In October 2010, The Veteran reported that he was employed full-time as a facility director at a church for the past two to five years. He reported that during the previous 12 months, he had loss less than 1 week of work time, and that was due to medical appointments. The examiner noted that the Veteran's lumbar disability affected his occupational activities with lifting and carrying; lack of stamina; weakness or fatigue. Therefore, as it is unclear when exactly the Veteran has been unemployed during the appeal period, he should be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). Furthermore, an opinion regarding whether the Veteran's service-connected disabilities, either singularly or jointly, render the Veteran unemployable for any period during the appeal period (i.e., since January 2001) should be obtained. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. Thereafter, the claims file should be forwarded to an appropriate medical profession to offer an opinion as to whether the Veteran's service-connected disabilities render him unemployable at any point during the appeal period, i.e., since January 2001. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the report that the claims file was reviewed. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion. Following a review of the record, the examiner should render an opinion as to whether the Veteran has been, or is, unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, either singularly or jointly, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities at any point during the appeal period, i.e., January 2001 to the present. In this regard, the Veteran is service-connected for a back disability, residual scarring associated with such disability, a right knee disability, a left knee disability, and a fracture of the right second toe. All opinions offered should be accompanied by a rationale. The examiner should specifically consider the aforementioned evidence, to include the November 2002 and December 2002 statements from the Veteran's private physicians, the findings from the VA examinations, and the Veteran's lay statements. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. The AOJ should specifically consider the provisions in 38 C.F.R. § 4.16(a) that provides that, for the purpose of one disability, the following will be considered as one disability: disability of one or both of the lower extremities, including the bilateral factor, if applicable, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, i.e., orthopedic. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs