Citation Nr: 1336880 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 06-27 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to May 26, 2004 for lumbosacral strain with degenerative disc disease (DDD). 2. Entitlement to a rating in excess of 40 percent on and after May 26, 2004, for lumbosacral strain with DDD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to July 1966. This matter is on appeal from a May 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted a 20 percent rating for the Veteran's service-connected lumbar spine disability, effective from November 10, 2003. During the pendency of the appeal, by a December 2006 rating action, the 20 percent rating assigned for the Veteran's lumbar spine disability was increased to 40 percent, effective from May 26, 2004. The Veteran continued his appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was scheduled for a Travel Board hearing in July 2007. However, he failed to appear for the scheduled hearing. His request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). The appeal was most recently Remanded by the Board in December 2012 for further evidentiary development. At that time, the Board also granted separate 10 percent ratings for bilateral lower extremity radiculopathy. By a March 2013 rating action, a TDIU was granted effective from March 29, 2012. The RO also effectuated the award of the 10 percent ratings for bilateral lower extremity radiculopathy effective from November 10, 2003, and then assigned 20 percent ratings effective from March 29, 2012. A May 2013 rating action continued the 20 percent ratings. The Veteran has not filed a Notice of Disagreement with either rating action and the September 2013 Informal Hearing Presentation identified the claim for an increased rating for the Veteran's lumbar spine disability as the remaining issue on appeal. A claim for an increased rating for radiculopathy of the lower extremities is not currently before the Board and will not be addressed by the Decision below. In a January 2013 statement, the Veteran raised a claim for service connection for a bilateral shoulder disability and headaches. While these issues have been raised by the record, they have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to May 26, 2004, there is no evidence that the Veteran's lumbosacral strain with DDD was primarily manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, that the Veteran experienced any incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks due to his lumbar spine disability. 2. From May 26, 2004, to the present, there is no evidence that the Veteran's lumbosacral strain with DDD results in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during the past year. CONCLUSIONS OF LAW 1. Prior to May 26, 2004, the criteria for a disability rating in excess of 20 percent for lumbosacral strain with DDD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4 .3, 4.7, 4.40, 4.41, 4.45, 4.71a, Diagnostic Code (DC) 5237 (2013). 2. From May 26, 2004, the criteria for a rating in excess of 40 percent for lumbosacral strain with DDD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4 .3, 4.7, 4.40, 4.41, 4.45, 4.71a, DC 5237 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & to Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the Veteran has not alleged any prejudicial or harmful error in VCAA notice. In this case, prior to the initial adjudication of the claim, the RO provided notice to the Veteran in a letter dated December 2003 that explained what information and evidence was needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. A letter mailed in November 2009 also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the Veteran was not provided complete notice with respect to his claim until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). Moreover, the Veteran through his representative demonstrated an understanding of the evidence needed to establish entitlement to a rating in excess of 20 percent prior to May 26, 2004, and in excess of 40 percent since May 26, 2004, for lumbosacral strain with DDD in written Informal Hearing Presentations in August 2009, October 2012, and September 2013. See Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that the appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim). VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA obtained the Veteran's STRs. Pertinent VA and private outpatient treatment records, as well as the Veteran's vocational rehabilitation records were obtained pursuant to the Board's Remands in September 2009, January 2010, and December 2012. The Board is satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 11, 146-47 (1999). The file also contains statements and contentions made by the Veteran, his family and friends, and his representative. No outstanding evidence has been identified that has not otherwise been obtained. VA examinations were also conducted during the course of the appeal period in February and September 2004, November 2006, and pursuant to the Board's Remands in October 2009, April 2011, March 2012, and February 2013. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board observes that in April 2011 and December 2012 statements the Veteran complained that his VA examinations were unfair and that the physician's assistants (PAs) that performed the October 2009 and March 2011 VA examinations were unqualified to perform those examinations. However, the Court has never required that medical examinations only be conducted by physicians. 38 C.F.R. § 3.159(a)(1) provides that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Here, the Veteran has not submitted any objective evidence tending to show that the VA PAs lacked the training and expertise to perform the medical examinations and provide the medical opinions proffered. Rather, the Board finds that all of the VA examination reports, completed by PAs and medical physicians, are comprehensive and adequately address the Veteran's orthopedic symptomatology. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board is satisfied there was substantial compliance with the Board's Remands. See Stegall and Dyment, supra. The Board notes that the Veteran's VA spine examination from February 2013 is nearly 9 months old. The mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's lumbar spine disability since this most recent examination. The Veteran has not argued the contrary. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). In order 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. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2013). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. The Veteran maintains that his service-connected lumbar spine disability, lumbosacral strain with degenerative disc disease, is more severe than what is reflected by the currently assigned disability ratings. Historically, a May 1976 rating action granted service connection and assigned a noncompensable rating for the Veteran's lumbar spine disability, effective from January 26, 1976. In November 2003, the Veteran filed a claim for an increased rating. In May 2004, the RO increased the disability rating to 20 percent, pursuant to Diagnostic Code 5237 (lumbosacral or cervical strain). Subsequently, in May 2004, he submitted a statement indicating that his disability had worsened. While on appeal, in December 2006, the Veteran's disability rating was increased to 40 percent, effective May 26, 2004, the date of the Veteran's statement in which he indicated that his condition had worsened. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 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. Moreover, "chronic orthopedic and neurological 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 Codes 5235-5243 (2013). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months is assigned a 20 percent rating. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 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 diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). Turning to the merits of the claim, VA treatment records include an August 2003 MRI of the lumbar spine and an impression of degenerative changes, bone and disc. There was also multilevel annular and disc bulging. No focal disc herniation or spinal stenosis was noted. There was bilateral spondylolysis of the L5 with L5-S1 spondylolisthesis. An X-ray examination of the lumbar spine revealed DDD moderately at L4-5 and L5-S1 and spondylolysis of pars interarticularies of the 5th lumbar vertebra with Grade I spondylolisthesis. A September 2003 report indicates that on examination the Veteran was able to stand upright. He had flattening of the lumbar lordotic curve and was able to bend forward to reach within 12 inches from the ground. He could walk on his tiptoes and heel without much problem, but complained of pain. There was no evidence of scoliosis or kyphosis. An MRI showed almost Grade 2 spondylosis of L5 on S1 with a slip, arthritic changes and some disc space narrowing at L4-5, and severe narrowing at L5-S1 along with spondylolisthesis and defect in the pars interarticulars causing instability. He was prescribed Naprosyn. In December 2003, the Veteran reported that he wore a brace and a binder. On VA spine examination in February 2004, the Veteran presented with complaints of constant pain. Percoset, Methadone, and a muscle relaxer provided little relief. He used a cane for ambulation as well as a brace, but denied any loss of bowel of bladder function. He also denied any hospitalizations or period of incapacitations within the last 12 months. He reported that his back disability affected his ability to bathe and dress secondary to pain. A February 2004 MRI of the lumbar spine indicated multilevel degenerative disc disease (DDD) and Grade 2 anterolisthesis of L5 on S1 secondary to bilateral spondylosis. On examination, the Veteran walked with a slow limp and forward flexed gait. There was normal curvature of the lumbar spine with normal musculature. He had decreased range of motion of the lumbar spine and 60 degrees flexion, 10 degrees extension, right and left lateral flexion to 15 degrees, and right and left rotation to 5 degrees with pain. The assessment was lumbosacral strain with multilevel DDD on MRI and X-ray and Grade 2 anterolisthesis of L5 on S1 per X-ray and MRI. On VA examination in September 2004, the Veteran complained of constant low back pain rated a 7 to 8 out of 10 on the pain scale aggravated by prolong standing, sitting, bending, and driving and relieved by medication. He was taking Morphine, Percoset, Methocarbamol, and Naprosyn. He used braces, a walker, and a cane for ambulation. He complained that he was unable to do any physical activity. He had difficulty with prolonged walking, driving, or standing; sleeping; and sexual intercourse secondary to his back disability. He walked with a slow limping forward flexed gait. Examination of the lumbar spine revealed normal curvature of the lumbar spine with normal musculature. There was decreased range of motion of the lumbar spine with 45 degrees flexion, 5 degrees extension, 15 degrees right and left lateral flexion, and 15 degrees right and left lateral rotation. The assessment was unchanged from the February 2004 VA examination. VA treatment records include a May 2005 MRI of the lumbar spine which revealed Grade I spondylolisthesis of L5 on S1. X-ray examination revealed spondylolysis, a mild degree of central disc bulge at the L2-3 level causing minimal deformity of the thecal space, and evidence of a central disc bulge at the L3-4 and L4-5 levels. There was no evidence of spinal stenosis. The lateral neural foramina were present. No other abnormality was seen. In July 2005, Morphine was increased to 60 milligrams (mg) three times daily and Nortroptyline was increased to 100 mg. In November 2005, the Veteran complained that Oxycodone and Percoset provided no pain relief. He had erectile dysfunction, but stated that it was not distressing to him. A November 2005 report indicates complaints of pain rated a 15 on the pain scale which the physician opined was neuropathic and due to environmental toxins or contaminants as opposed to his lumbar spine disability. On VA examination in November 2006, the Veteran presented with complaints of worsening pain in the lumbosacral spine. He had constant pain rated a 10 out of 10 on the pain scale and took Ibuprofen as needed. He reported flare-ups which lasted 2 to 3 days during which pain was rated greater than 10 out of 10 on the pain scale and he was bedridden. He used a cane to ambulate and had difficulty with prolonged walking and had fallen multiple times in the past. On examination, the Veteran had an antalgic gait without the use of his cane. He had aggravated lumbar lordosis and stooped forward while walking or standing. He was unable to straighten his spine and was very unstable without a cane. Range of motion testing revealed 20 degrees flexion and -15 degrees extension. He was not able to extend to 0 degrees. He had 5 degrees right and left lateral flexion and 10 degrees right and left lateral rotation limited by severe pain. There was no additional limitation in range of motion on repetitive testing due to weakness, fatigue, or a lack of endurance or incoordination. He denied any bowel or bladder symptoms. The assessment was multilevel DDD of the lumbosacral spine per radiographs, with retrolisthesis of L5 on S1. VA treatment records include a May 2007 X-ray report of the lumbosacral spine which indicated spondylolysis of pars interarticulars of fourth and fifth lumbar vertebrae and spondylolisthesis of L5 over S1, Grade 1 severity; DDD at L3-L4, and L4-L5; severe DDD with vacuum phenomenon at the L5-S1 level; and bulging disc annulus at L3-L4. In September 2007, pain was rated an 8 out of 10 on the pain scale with medication. An October 2007 MRI of the lumbar spine revealed Grade I spondylolisthesis of L5 on S1. Private treatment records include a January 2008 report which indicates that the Veteran had difficulty completing simple household chores and spent most of his time at home in the bed due to pain due to numbness in his legs. A May 2008 report indicates an impression of lumbar spine DDD and spondylosis. A trial of lumbar epidural steroids was recommended. In August and September 2008, the Veteran received lumbar epidural steroid injections. In October 2008, he complained of constant pain rated a 10 out of 10 on the pain scale with localized pain in the lower lumbar region. He stated that three epidural injections provided no significant pain relief. On examination, there was diffuse tenderness over the spine with possible embellishment. The impression was a history of chronic low back pain possibly related to myofascial pain and lumbar DDD. In December 2008, a MRI of the lumbar spine revealed L2/L3 through L4/L5 DDD with diffuse disc bulges that resulted in mild vertebral canal stenosis. VA treatment records include a November 2008 report which indicates that the Veteran rated his pain a 10 out of 10 on the pain scale with very poor flexion and extension. In February 2009 report, he complained of extreme sharp low back pain with occasional episodes of his legs giving out. Pain was rated a 9 out of 10 on the pain scale. He ambulated with the assistance of a walker and limped persistently. He denied any bowel or bladder dysfunction. On physical examination, he was alert and oriented times three. He ambulated with the assistance of the walker. A MRI revealed Grade II spondylolisthesis at L5-S1 with associated pars fracture. There was moderate foraminal stenosis bilaterally. An October 2009 report shows that range of motion of the lumbar spine indicated 55 degrees flexion, extension lacking 20 degrees, 30 degrees left lateral rotation, 38 degrees right lateral rotation, 10 degrees side bend on the left, and 12 degrees side bend on the right. On VA spine examination in October 2009, the Veteran presented with complaints of worsening back pain with only a fair response to treatment. He denied any history of urinary incontinence, urgency, or obstipation. There was a history of fatigue, stiffness, weakness, spasms, and constant and severe low back pain. There was no decreased motion or flare-ups or any incapacitating episodes. He used the assistance of a walker, but was only able to walk one-quarter mile. On examination of the spine, posture was normal with an abnormal gait. There was evidence of lumbar flattening, but no gibbus, kyphosis, lumbar lordosis, scoliosis, reverse lordosis, or ankylosis. There was no evidence of spasm, atrophy, guarding, pain with motion, muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or spinal contour. Range of motion testing of the thoracolumbar spine indicated flexion from 20 to 70 degrees and left and right lateral flexion to 20 degrees. The findings for left and right lateral rotation were not provided. There was objective evidence of pain on active range of motion. The examiner was unable to test repetitive range of motion. The examiner diagnosed lumbar DDD with mild effects on chores, shopping and severe effects on exercise and sports. There was no effect on recreation, traveling, feeding, bathing, dressing, toileting, or grooming. Private treatment records include a December 2010 MRI of the lumbar spine which shows a stable moderate to severe degree of diffuse degenerative disc disease involving the 3 lumbar levels; shallow annular disc bulges at all levels of the lumbar spine; Grade II anterolisthesis at L5-S1 resulting in severe biforaminal stenosis, unchanged; mild right neuroforaminal stenosis at L4-5 due to facet disease and annular disc bulge; and prominent suspected epidural vein and fat posterior to the L4 vertebral body unchanged. On VA spine examination in April 2011, the Veteran presented with complaints of pain, stiffness, weakness, spasms, and fatigability with pain in his mid and low back. He was able to walk with assistance from his cane and an elastic back brace. He used a walker for long distances and during increased pain. He also had a TENS unit which was mildly helpful. He retired in 2000 due to his back disability. Range of motion testing of the lumbar spine revealed 20 to 30 degrees flexion which began in a slight bend after which the Veteran was unable to stand completely straight. Right lateral flexion was from 0 to 8 degrees and left lateral flexion was from 0 to 2 degrees. He was unable to complete right or left lateral rotation or extension. There was pain with each movement and he was unable to complete repetitive movement. His legs began to shake and there were notable spasms of the lower back after the first three measurements. He had daily flare-ups due to pain rated an 8 out of 10 on the pain scale. However, he denied any incapacitating episodes in the past 12-month period and plain films of the lumbar spine were unremarkable. On examination, the Veteran's spine was normal with symmetric musculature. There was no vertebral or paravertebral tenderness. The examiner diagnosed lumbar spine DDD with bulging discs and opined that his complaints of pain with each movement of his back and the limitations in range of motion would make any type of physical labor difficulty; lifting, bending, and kneeling were nearly impossible. Electronically stored VA treatment records include a March 2011 report at which time the Veteran reported pain rated a 10 out of 10 on the pain scale and continued to use his cane. In July 2011 he reported that he was unable to get out bed due to pain, but he denied any bowel or bladder changes. The assessment was chronic low back pain with lumbar DJD/DDD. On VA back Disability Benefits Questionnaire (DBQ) examination in March 2012, the Veteran denied that flare-ups impacted the function of his back. Range of motion testing revealed 35 degrees forward flexion with pain, 15 degrees left and right lateral flexion with pain at 10 degrees, 15 degrees right lateral rotation with pain, and 10 degrees left lateral rotation with pain. Extension was not reported. Following repetitive-use testing there was no additional limitation in range of motion. There was evidence of functional loss and/or functional impairment of the thoracolumbar spine manifested by less movement; weakened movement; incoordination; pain on movement; disturbance of locomotion; and interference with sitting, standing, and/or weight bearing. There was localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine and guarding or muscle spasm which did not result in abnormal gait or spinal contour. There was no evidence of intervertebral disc syndrome (IVDS). The Veteran regularly used a cane and a walker to assist with ambulation. X-ray examination indicated arthritis and an impression of acute bony lumbar spine abnormality, unchanged spondylolysis with 12 mm anterolisthesis of L5 on S1, and multilevel DDD. The examiner diagnosed lumbar strain with DDD. The examiner stated that the Veteran was unable to stand erect due to discomfort associated with the spine and was unable to perform extension of the spine due to pain. On VA back DBQ examination in February 2013, the Veteran reported that he was in constant pain. He reported that in the last 10 years his back disability led to decreased activity and he could no longer golf, bowl, shoot pool, or hunt due to difficulty with bending pain. He reported placement of pain pump in June 2012 with little improvement. He described flare-ups of shooting pain up his back and down his leg. He was unable to sit or stand for a prolonged period of time. Range of motion testing revealed 50 degrees forward flexion, 15 degrees right lateral flexion, 10 degrees left lateral flexion, and right and left lateral rotation to 10 degrees with pain. The Veteran was unable to stand erect due to discomfort associated with the spine. He was also unable to perform extension of the spine due to pain. However, there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. The Veteran had functional loss and/or functional impairment of the thoracolumbar spine manifested by less movement than normal; weakened movement; incoordination; an impaired ability to execute skilled movements smoothly; pain on movement; disturbance of locomotion; and interference with sitting, standing and/or weight-bearing. There was localized tenderness or pain to palpation for joint and/or soft tissue of the thoracolumbar spine manifested by tenderness to palpation of the lumbar spine and paraspinal muscles and lumbar paraspinal muscle spasms, bilaterally. Guarding and/or muscle spasm was present, but did not result in abnormal gait or spinal contour. There was muscle atrophy on the left. The examiner indicated that the Veteran did not have IVDS. He used a cane within the home for ambulation and a walker during long distances outside of the home. The examiner diagnosed lumbar strain with DDD and opined that the Veteran was severely limited in a physical environment due to decreased range of motion, bilateral leg weakness, and interference with sitting, standing, weight bearing, and ambulation. Scarring was noted due to placement of the pain pump in June 2012. The central scar on the back was 6 x 0.3 centimeters (cm) and left lateral scar back 9 x 0.2cm. However, there were no painful scars and/or unstable scars, or a total area of all related scars greater than 39 cm (6 square inches). He had two superficial scars that were superficial and linear, but they were not limiting, disfiguring, or painful. Having reviewed the foregoing, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's lumbosacral strain with degenerative disc disease prior to May 26, 2004. On VA examination in February 2004, range of motion testing revealed forward flexion of the thoracolumbar spine to at least 60 degrees albeit with pain. The evidence does not show limitation to 30 degrees or less. There is also no evidence of ankylosis of the thoracolumbar spine. Thus, the requirements for a 40 percent evaluation have not been met or approximated. From May 26, 2004, the medical evidence is negative for any clinical finding of unfavorable ankylosis of the entire thoracolumbar spine which would warrant the assignment of a higher 50 percent rating. The requirements for a 50 percent rating have not been met or approximated. The Board has also determined that the assignment of a higher 40 percent rating prior to May 26, 2004, and a higher 50 percent rating from May 26, 2004, is not warranted under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. While the Veteran has complained of occasions during which he was bedridden, there is no evidence that bed rest was prescribed by a physician. Moreover, on March 2012 and February 2013 VA DBQ examinations, the examiners each indicated that the Veteran was found not to have IVDS. Consideration has been given to whether a higher rating could be assigned for either period based on the any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased rating for the Veteran's service-connected lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case prior to or since May 26, 2004, as the Veteran's symptoms are contemplated by the 20 percent and 40 percent ratings that are already assigned. The first repetitive stress test was performed on VA examination in November 2006 at which time there was no additional limitation in range of motion on repetitive testing due to weakness, fatigue, or a lack of endurance or incoordination. There is simply no basis to determine whether there was any additional loss of motion prior to that time. Such would involve speculation that the Board is unwilling to entertain. Further, in terms of the period from May 24, 2004, the Veteran is already in receipt of a 40 percent schedular rating in the instant case, the only basis for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine is if there is evidence of ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). It is again noted that ankylosis of the spine is not shown. Indeed, while he clearly experiences limited range of motion, the fact remains that his continued ability to manipulate his spine negates a finding of ankylosis. Finally, the Board has considered whether a separate rating can be assigned for two scars on the Veteran's spine from the placement of a pain pump in June 2012. However, a separate compensable rating for the Veteran's scars is not warranted as none of the examinations or treatment records have shown that they are deep or cause limited motion and cover areas at least six square inches (39 sq. cm.); are superficial and do not cause limited motion and cover areas of 144 square inches (929 sq. cm.) or greater; are superficial and unstable; or cause other disabling affects. 38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7805. Additional considerations In reaching the above conclusions, the Board has also not overlooked statements from the Veteran, his friends, and his family in support of his claims. In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. orthopedic symptomatology including pain and weakness in the low back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the subjective statements of the Veteran, his family and his friends regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012). Furthermore, the Board finds the objective medical findings and opinions provided by the expert of record should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). The above determination is based upon consideration of applicable rating provisions. It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluations on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1). With regard to higher ratings for lumbar spine disability prior to and since May 26, 2004, the currently assigned ratings adequately describe the severity of the Veteran's symptoms for this disability. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's orthopedic disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Further, the Veteran has been awarded a TDIU primarily due to his lumbar spine disability 38 C.F.R. § 4.16(a), further indicating that he had been adequately rated under the regular schedular standards. As the rating schedule is adequate to evaluate the disability, referral for extra-schedular consideration is not in order. In light of the foregoing, the Veteran's claim for a rating in excess of 20 percent prior to May 26, 2004, and in excess of 40 percent since May 26, 2004, for lumbosacral strain with DDD must be denied. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application with regard to this claim. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered additional staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. ORDER A rating in excess of 20 percent prior to May 26, 2004 for lumbosacral strain with degenerative disc disease (DDD), is denied. A rating in excess of 40 percent on and after May 26, 2004, for lumbosacral strain with DDD, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs