Citation Nr: 1337348 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-11 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased initial rating for irritable bowel syndrome (IBS) rated as 30 percent disabling from September 12, 2005, to August 20, 2008; 0 percent from August 21, 2008, to July 20, 2010; and 10 percent disabling from July 21, 2010. 2. Entitlement to an increased initial rating for a low back disability rated as 20 percent disabling prior to August 23, 2011, and 40 percent thereafter. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1981 to May 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal from March 2006 (spine) and March 2009 (IBS) rating decisions of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, where the RO granted service connection for the low back disability and IBS respectively and assigned initial ratings. During the pendency of this appeal, the Veteran was awarded staged increased ratings for his spine and IBS disabilities in March 2009 (spine), January 2011 (IBS), and June 2012 (spine) rating decisions. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issues are still properly before the Board here and the issue has been appropriately rephrased above. The Veteran's June 2006 notice of disagreement to the March 2006 rating decision also included the RO's denial of his claims of service connection for irritable bowel syndrome and a right shoulder disability. However, in subsequent March 2009 and July 2009 rating decisions, the RO granted service connection for these disabilities. Therefore, these issues are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the Veteran's notice of disagreement on such issue). In June 2011, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The appeal has now been returned to the Board for appellate disposition. The Veteran's Virtual VA paperless claims file has been reviewed in preparing this decision, along with his paper claims file. FINDINGS OF FACT 1. From September 12, 2005, to August 20, 2008, the Veteran was in receipt of the maximum scheduler disability rating for his irritable bowel syndrome. 2. From August 21, 2008, to July 20, 2010, the Veteran's irritable bowel syndrome was best characterized as mild with disturbances of bowel function with occasional episodes of abdominal distress. 3. Since July 21, 2010, the Veteran's irritable bowel syndrome is best characterized as moderate with frequent episodes of bowel disturbance with abdominal distress. 4. From September 12, 2005, to August 22, 2011, the Veteran's low back disability was manifested by limited forward flexion of the thoracolumbar spine no worse than 40 degrees. 5. Since August 23, 2011, the Veteran's low back disability is not manifested by unfavorable ankylosis. 6. Throughout the entire appeal period, the Veteran's low back disability has not been manifested by incapacitating episodes. 7. The Veteran's service-connected low back disability is additionally manifested by radiculopathy into his right lower extremity. 8. The Veteran's service-connected low back disability is additionally manifested by mild radiculopathy into his left lower extremity. CONCLUSIONS OF LAW 1. From September 12, 2005, to August 20, 2008, the criteria for an initial disability rating in excess of 30 percent for irritable bowel syndrome are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319 (2013). 2. From August 21, 2008, to July 20, 2010, the criteria for an initial compensable disability rating for irritable bowel syndrome are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319 (2013). 3. Since July 21, 2010, the criteria for an initial disability rating in excess of 10 percent for irritable bowel syndrome are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7319 (2013). 4. From September 12, 2005, to August 22, 2011, the criteria for an initial disability rating in excess of 20 percent for the low back disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2013). 5. Since August 23, 2011, the criteria for an initial disability rating in excess of 40 percent for the low back disability are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2013). 6. The criteria for entitlement to service connection for radiculopathy of the right lower extremity, associated with the service-connected low back disability, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.310, 4.71a, Diagnostic Code 5242, Note (1) (2013). 7. The criteria for entitlement to service connection for radiculopathy of the left lower extremity, associated with the service-connected low back disability, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.310, 4.71a Diagnostic Code 5242, Note (1) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under applicable law, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This appeal arises from the Veteran's disagreement with the initial ratings assigned following the grants of service connection for degenerative disc disease of the lumbosacral spine and irritable bowel syndrome. As such, pertinent regulation provides that VA has no further obligation to provide notice under 38 U.S.C.A. § 5103 on this downstream element of the claims. See 38 C.F.R. § 3.159(b)(3)(1) (2013). In so providing, the courts have held that once service connection is granted, the claim is substantiated, further notice as to the "downstream" elements concerning the initial rating and effective date is not required, and any defect in the notice is not prejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, because the section 5103 notice provided in an October 2005 letter before the grants of service connection for degenerative disc disease of the lumbosacral spine and irritable bowel syndrome was legally sufficient, VA's duty to notify in this case is satisfied. See also Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap, 21 Vet. App. 112. In any event, the RO furnished the Veteran appropriate letters in October 2005, March 2006, and August 2008 that addressed the initial ratings assigned, included notice of the criteria for higher ratings for degenerative disc disease of the lumbosacral spine and irritable bowel syndrome, and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting his appeals. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeal process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap, 21 Vet. App. 112. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs and post-service VA and private treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disabilities currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. Additionally, the RO provided the Veteran appropriate VA examinations in 2005, 2011, and 2012. These examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests, to include x-ray. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The reports of those evaluations contain all findings needed to properly evaluate his disabilities. 38 C.F.R. § 4.2 (2013). The Board also finds no credible lay or medical evidence demonstrating or alleging an increased severity of the disabilities on appeal since the most recent VA examinations in August 2011 and October 2012. Thus, there is no duty to provide further medical examinations on the claims on appeal. See VAOPGCPREC 11-95 (Apr. 7, 1995). The Board is also satisfied as to substantial compliance with its June 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included scheduling the Veteran for additional VA examinations, which he had in August 2011 and October 2012. The remand also included sending the Veteran a letter that provided him with the appropriate release form (VA Form 21-4142) to obtain his confidential records from his private physician and that asked the Veteran to clarify whether he was withdrawing a portion of his irritable bowel syndrome claim. The Veteran, however, did not return the release forms or respond to that letter, and all other evidence that he has indicated as relevant to his claims have been obtained. Finally, the remand also directed the RO/AMC to readjudicate the Veteran's claims, which was accomplished in the December 2012 Supplemental Statement of the Case (SSOC). Thus, the Board finds that there has been substantial compliance with its remand directives. Id. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Increased Rating Claim Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. Separate DCs identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Where, as here, a Veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In fact, staged ratings have been assigned in this Veteran's case based on the facts as described below. Irritable Bowel Syndrome The Veteran's service-connected irritable bowel syndrome is currently rated under 38 C.F.R. § 4.114, Diagnostic Code 7319, referring to irritable colon syndrome (spastic colitis, mucous colitis, etc.). He is currently rated as 30 percent disabling from September 12, 2005, to August 20, 2008; 0 percent (non-compensable) from August 21, 2008, to July 20, 2010; and, 10 percent disabling from July 21, 2010. He seeks higher disability ratings for his irritable bowel syndrome. Under Diagnostic Code 7319, a 0 percent evaluation is assigned when the irritable bowel syndrome is mild with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent evaluation is warranted when the irritable bowel syndrome is moderate, with frequent episodes of bowel disturbance with abdominal distress. A 30 percent evaluation is warranted when the irritable bowel syndrome is severe, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. A 30 percent rating is the maximum scheduler rating that can be assigned under this Code. 38 C.F.R. § 4.114. The Board will begin by addressing the 30 percent disability rating in effect for the irritable bowel syndrome from September 12, 2005, to August 20, 2008. During this time period, the Veteran is currently in receipt of the maximum scheduler disability rating of 30 percent under Diagnostic Code 7319. Therefore, a higher scheduler rating cannot be assigned by the Board for the irritable bowel syndrome during this time period. 38 C.F.R. § 4.114, Diagnostic Code 7319. The Veteran's symptoms during this time period, moreover, do not indicate symptoms outside those described within the diagnostic criteria under Diagnostic Code 7319. In January 2008, the Veteran's private physician noted the Veteran suffered with IBS, to include diarrhea secondary to abnormal bowel spasms. The Veteran was treated with oral medication with "good success." VA outpatient treatment records do not describe a "severe" disability. Rather, in June 2008, the Veteran's IBS was described as "stable" on his current medications and in October 2008, the Veteran denied abdominal pain or diarrhea. The Veteran was awarded a 30 percent disability rating during this time period for "severe" symptoms. The medical evidence does not indicate a severe IBS disability. As noted above, this is the highest possible rating under Diagnostic Code 7319 and there is no indication the Veteran had symptoms over and beyond what is contemplated by the diagnostic criteria. For these reasons, a rating greater than 30 percent from September 12, 2005 to August 20, 2008 is not warranted. The Board will now address the 0 percent (non-compensable) disability rating in effect for the irritable bowel syndrome from August 21, 2008, to July 20, 2010. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a compensable disability rating for his irritable bowel syndrome during this time period. 38 C.F.R. § 4.114, Diagnostic Code 7319. From August 21, 2008, to July 20, 2010, there is no evidence of moderate irritable bowel syndrome with frequent episodes of bowel disturbance with abdominal distress. During this time period, VA treatment records document that the Veteran's irritable bowel syndrome had improved and was asymptomatic. Specifically, a VA treatment record dated on August 21, 2008, revealed that the Veteran's irritable bowel syndrome symptoms were "perfectly controlled" by his medication. He did not have weight loss or blood in his stool. A VA treatment record dated in October 2008 documented that the Veteran was feeling well, had no complaints, had no current symptoms of diarrhea, had no abdominal pain, and had good compliance with his irritable bowel syndrome medication (Levbid). In a VA treatment record dated in June 2009, the Veteran denied any diarrhea, constipation, or abdominal pain since he started taking the irritable bowel syndrome medication (Levbid). He was diagnosed with "stable" irritable bowel syndrome. In January 2010, the Veteran's private physician, Dr. J.L.S., submitted a medical opinion. Dr. J.L.S. stated that the Veteran has been diagnosed with irritable bowel syndrome, diarrhea sub-type, which is a chronic, ongoing spastic condition of the bowels. The physician indicated that if the Veteran were to stop taking his irritable bowel syndrome medication (Hyomax-SR), then he would more than likely have an immediate return of the diarrhea. There is no other pertinent VA or private evidence during this time period. Based on the aforementioned evidence, the Board finds that the Veteran's irritable bowel syndrome is best characterized as mild, and not moderate, as the Veteran's irritable bowel syndrome symptoms were well-controlled and asymptomatic by his prescribed medication during this time period. The evidence of record does not indicate that the Veteran stopped taking his irritable bowel syndrome medication and started having symptoms, or that the medication stopped working, at any point during this time period. This evidence does not establish that the Veteran's irritable bowel syndrome has been moderate from August 21, 2008, to July 20, 2010, to warrant a higher disability rating. The Veteran is not entitled to a compensable disability rating for his irritable bowel syndrome from August 21, 2008, to July 20, 2010. 38 C.F.R. § 4.114, Diagnostic Code 7319. The Board will now address the 10 percent disability rating in effect for the irritable bowel syndrome since July 21, 2010. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a higher disability rating for his irritable bowel syndrome since July 21, 2010. 38 C.F.R. § 4.114, Diagnostic Code 7319. Here, there is no evidence of severe irritable bowel syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Instead, the evidence of record documents that the Veteran's irritable bowel syndrome has been best characterized as moderate since July 21, 2010. Specifically, at a VA treatment visit on July 21, 2010, the Veteran denied experiencing any explosive diarrhea, constipation, or abdominal pain since he started taking his irritable bowel syndrome medication (Levbid). The Veteran continued to have diarrhea, but it was controlled with his current medication. He was diagnosed with stable irritable bowel syndrome. In December 2010, Dr. J.L.S. submitted another medical opinion, in which he indicated that the Veteran's irritable bowel syndrome caused diarrhea secondary to abnormal bowel spasms. Dr. J.L.S. stated that the Veteran's regular medication (Hyomax) helped to control and improve his irritable bowel syndrome, but did not resolve the irritable bowel syndrome. Specifically, the Veteran continued to experience three to five episodes of diarrhea per week; however, Dr. J.L.S. pointed out that these diarrhea episodes were must less explosive. The Veteran did not experience any fecal incontinence episodes. In a VA treatment record dated in August 2011, the Veteran denied any diarrhea, constipation, or abdominal pain since he started taking the irritable bowel syndrome medication (Levbid). He was diagnosed with "stable" irritable bowel syndrome. The Veteran was afforded a VA intestines examination in August 2011. At the examination, the Veteran continued to have diarrhea, but his symptoms were "somewhat" improved by his irritable bowel syndrome medications. The Veteran experienced semi-solid loose stools on an average of one to three/four days a week. The remaining three days in the week, he had normal bowel movements. The Veteran denied any constipation. He was not following any specific diet, had not been hospitalized for the management of his bowel movements, and his daily activities were not restricted. His weight was stable. The Veteran described "abdominal crampy pains" during the above diarrheal days, which subsided after a bowel movement. The Veteran denied any other chronic pain in the abdomen, nausea, or vomiting. Following a physical examination of the Veteran and a review of the claims file, the VA examiner found that the Veteran was no in acute distress. He had no obvious nutritional deficiencies noted, and his abdomen was not tender. He had no signs of obstruction and his bowel sounds were normally heard. The examiner diagnosed the Veteran with "irritable bowel syndrome, on medications." Based on the aforementioned evidence, the Board finds that the Veteran's irritable bowel syndrome is best characterized as moderate, and not severe. Although the Veteran continues to have diarrhea and abdominal pain one to three/four days a week, his irritable bowel syndrome medication also keep his symptoms well-controlled. The private physician confirmed that the Veteran's symptoms had improved and his diarrhea was less explosive due to the irritable bowel syndrome medication. The Veteran has not experienced any constipation, nausea, or vomiting since July 21, 2010, and at the examination, the Veteran reported that he does not experience diarrhea and abdominal pain every day. This evidence does not establish that the Veteran's irritable bowel syndrome has been severe since July 21, 2010. The Veteran's irritable bowel syndrome is best rated as moderate with frequent episodes of bowel disturbance with abdominal distress. He is not entitled to a higher disability rating for his irritable bowel syndrome since July 21, 2010. 38 C.F.R. § 4.114, Diagnostic Code 7319. In summary, the Veteran's claim of entitlement to an increased initial rating for irritable bowel syndrome rated as 30 percent disabling from September 12, 2005, to August 20, 2008; 0 percent from August 21, 2008, to July 20, 2010; and 10 percent disabling from July 21, 2010, is denied. In making this decision, the Board has considered the applicability of other Codes in an attempt to see if the Veteran would be entitled to a higher disability rating under an alternate Code. However, the Board finds that the Veteran's service-connected irritable bowel syndrome is best rated under Diagnostic Code 7319. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The Board has considered the Veteran's description of symptoms in rendering this opinion, but the preponderance of the evidence is against the assignment of higher disability ratings for the service-connected irritable bowel syndrome at any time during the appeal period. The claim of entitlement to an increased initial rating for irritable bowel syndrome rated as 30 percent disabling from September 12, 2005, to August 20, 2008; 0 percent from August 21, 2008, to July 20, 2010; and 10 percent disabling from July 21, 2010, is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Low Back Disability The Veteran's service-connected low back disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. His disability was previously rated under 38 C.F.R. § 4.1a, Diagnostic Code 5237. The Veteran's low back disability is rated as 20 percent disabling prior to August 23, 2011, and 40 percent disabling thereafter. He seeks higher disability ratings. Diagnostic Codes 5237 and 5242 refer to the General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula provides a 20 percent disability rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DC 5237. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237. A 50 percent rating is assigned where there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5237. These ratings apply 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. 38 C.F.R. § 4.71a. Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id., Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id., Note (3). Further, the term "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"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees Id., Notes (2) and (4). Note (1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id., Note (1). The Board notes that the Veteran also has a diagnosis of degenerative joint disease (i.e., intervertebral disc syndrome) of the lumbar spine throughout his VA treatment records. There are alternative criteria for rating an intervertebral disc syndrome based upon incapacitating episodes. Under the alternative criteria, a 20 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least two, but less than four, weeks during the previous 12 month period. A 40 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least four, but less than six, weeks during the previous 12 month period. A 60 percent rating is assigned when the Veteran has incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks during the previous 12 month period. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. The Board will begin by addressing the 20 percent rating in effect prior to August 23, 2011. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for his service-connected low back disability. Here, there is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes, prior to August 23, 2011, to warrant a higher disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. Specifically, at the November 2005 VA spine examination, the Veteran's forward flexion of the lumbosacral spine was limited to 50 degrees with complaints of pain at the end of the motion. The examiner found that the Veteran's lumbar spine experienced an additional loss of 10 degrees of forward flexion due to his pain following repetitive motion; thus, his forward flexion of the lumbar spine was limited to 40 degrees at the examination when considering the Veteran's pain. The VA and private treatment records dated prior to August 23, 2011, do not provide contrary evidence, and there are no other VA examinations of record dated prior to August 23, 2011. The evidence does not establish that his forward flexion of the thoracolumbar spine was limited to 30 degrees or less prior to August 23, 2011. Even with consideration of the Veteran's pain, his forward flexion of the lumbar spine has been limited, at most, to 40 degrees. Additionally, at the November 2005 VA spine examination, the VA examiner found that the Veteran had motion, albeit, limited in his lumbar spine; thus, the Veteran's lumbar spine was not ankylosed at the examination. The VA and private treatment records do not provide contrary evidence. Without evidence of favorable ankylosis of the thoracolumbar spine at any time prior to August 23, 2011, the Veteran is not entitled to a higher 40 percent rating, even when considering his pain. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Here, the Veteran has retained lumbar motion in all directions, albeit limited, even when considering his pain and functional loss of the spine. By this very fact, the Veteran's lumbar spine is not ankylosed. Finally, the evidence preponderates against a finding that the service-connected low back disability is productive of any incapacitating episodes. While there are references in the clinical records and VA examination to the presence of back pain, there are no references to the presence of incapacitating episodes. No health care provider is on record as prescribing bed rest to treat the Veteran's back. Hence, an increased rating is not warranted for this low back disability based on intervertebral disc syndrome and incapacitating episodes. Based on the aforementioned evidence, the Veteran is not entitled to a disability rating in excess of 20 percent for his service-connected low back disability prior to August 23, 2011. Prior to August 23, 2011, his low back disability has not been manifested by forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes, to warrant a higher disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. The Board will now address the 40 percent rating in effect since August 23, 2011. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent for his service-connected low back disability since August 23, 2011. Here, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes, to warrant a higher disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. Specifically, at the August 23, 2011, VA spine examination and at the October 2012 VA spine examination, the VA examiners found that the Veteran had motion, albeit, limited in his lumbar spine; thus, the Veteran's lumbar spine was not ankylosed at those examinations. The VA and private treatment records do not provide contrary evidence. Without evidence of unfavorable ankylosis of the thoracolumbar spine at any time since August 23, 2011, the Veteran is not entitled to a higher disability rating, even when considering his pain. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Dinsay, 9 Vet. App. at 81; Lewis, 3 Vet. App. at 259 [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Here, the Veteran has retained lumbar motion in all directions, albeit limited, even when considering his pain and functional loss. By this very fact, the Veteran's lumbar spine is not ankylosed. Additionally, the evidence preponderates against a finding that the service-connected low back disability is productive of any incapacitating episodes. While there are references in the clinical records and VA examinations to the presence of back pain, there are no references to the presence of incapacitating episodes. The Veteran denied this symptomatology at the October 2012 VA examination, and no health care provider is on record as prescribing bed rest to treat the Veteran's back. Hence, an increased rating is not warranted for this low back disability based on intervertebral disc syndrome and incapacitating episodes. Based on the aforementioned evidence, the Veteran is not entitled to a disability rating in excess of 40 percent for his service-connected low back disability since August 23, 2011. Since August 23, 2011, his low back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes, to warrant a higher disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242, 5243. In forming these decisions, the Board has considered any functional impairment due to pain, weakness, excess fatigability, lack of endurance, or incoordination in accordance with DeLuca, 8 Vet. App. 202 and 38 C.F.R. §§ 4.40, 4.45, and 4.59. Id. The lay and objective medical evidence, however, does not show that his symptoms result in additional functional limitation to the extent that the Veteran's low back disability warrants higher disability ratings under Diagnostic Codes 5237, 5242, and 5243. Id.; see also 38 C.F.R. § 4.71a. Specifically, at the November 2005 VA spine examination, the Veteran stated that his activity of daily living were "somewhat limited" due to his difficulty in lifting, but his work was not affected. He denied a history of flare-ups or any additional loss of motion. The November 2005 VA examiner found that the Veteran had additional limitation of motion due to pain on repetitive motion of his lower back. The examiner found that this additional limitation was 10 degrees of forward flexion, which meant that the Veteran's forward flexion of the lumbar spine would be limited to 40 degrees. The examiner found that there was no evidence of incoordination, weakness, or fatigability. The Veteran's functional loss due to a subjective complaint of pain was present. At the August 2011 VA spine examination, the Veteran denied a history of flare-ups in his lumbar spine. He stated that repetitive motion of the lumbar spine increased the pain but did not cause any additional loss of motion. His activities of daily living and his work were affected. The examiner found that the Veteran did not have any additional limitation of motion due to pain, fatigue, weakness, or lack of endurance upon repetitive use of the lumbar spine. At the October 2012 VA spine examination, the Veteran reported daily pain in his lumbar spine, but denied any flare-ups. The examiner found that the Veteran did not have additional limitation in his ranges of motion of the lumbar spine following repetitive use testing. The examiner determined that the Veteran did have functional loss and/or functional impairment of the thoracolumbar spine following repetitive use due to such factors as less movement than normal and pain on movement. In short, even in consideration of functional impairment, the Veteran's limited forward flexion has never been measured as worse than 40 degrees at any time period. The Veteran's functional impairment has never been equated to ankylosis or unfavorable ankylosis at any time during the appellate time frame. The Veteran simply does not meet the criteria for a higher rating during any of the applicable time frames. While the Board has considered the Veteran's description of symptoms throughout the appellate time frame, the preponderance of the evidence is against the assignment of higher disability ratings for the service-connected low back disability at any time during the appeal period. Thus, the claim of entitlement to an increased initial rating for a low back disability rated as 20 percent disabling prior to August 23, 2011, and 40 percent thereafter, is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see Gilbert, 1 Vet. App. at 53. Low Back Rating: Neurological Considerations In considering the Veteran's increased rating claim for his low back disability, the Board also considered whether his low back disability includes neurological manifestations warranting separate ratings. Again, the General Rating Formula for Diseases and Injuries of the Spine indicate all neurologic abnormalities associated with a service connected spine disability shall be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235-5242, Note (1). The medical evidence of record, combined with the Veteran's lay statements, establishes that his service-connected low back disability is also productive of radiculopathy in the bilateral lower extremities. Thus, the Veteran is entitled to separate evaluations for neurological manifestations of his bilateral lower extremities. Id. The Board notes, however, that the RO did not expressly consider whether separate ratings were warranted for the Veteran's neurological abnormalities. When the Board addresses an issue that was not addressed by the RO, consideration must be given to whether the Veteran will be prejudiced by the Board's consideration of the issue in the first instance. In this case, the Board finds no prejudice in granting service connection for separate ratings of radiculopathy of the bilateral lower extremities, but declines assigning initial ratings and effective dates for these separate ratings in the first instance. A disability proximately caused by a service-connected disability shall be service-connected. 38 C.F.R. § 3.310. Medical evidence from June 23, 2009 confirm the presence of radiculopathy of the bilateral lower extremities associated with the Veteran's service-connected low back disability. Thus, the Board finds service connection warranted. In contrast, the Veteran is not entitled to any further separate ratings for neurological manifestations of the low back disability. The Board notes the Veteran is currently service-connected for irritable bowel syndrome and no further bowel or bladder related condition has been associated with his low back disability. The medical evidence does not support any other neurological findings associated with his low back. Thus, for the above stated reasons, the Board finds that the Veteran is not entitled to further separate disability ratings for other neurological manifestations of his service-connected low back disability. 38 C.F.R. § 4.25. Extraschedular and TDIU Considerations The above determination is based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the claimant's disability level and symptomatology, then a Veteran's disability picture is contemplated by the rating schedule. The assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, 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 those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, because the schedular ratings for the Veteran's service-connected low back disability and irritable bowel syndrome fully address his symptoms, which include mainly pain, limitation of motion, and diarrhea, referral to the VA Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of extraschedular evaluations is not warranted. The evidence of record does not establish, and the Veteran does not contend, that his service-connected low back disability and/or irritable bowel syndrome prevent him from being employed or have required frequent hospitalizations. At all of the VA examinations, the Veteran was currently employed and denied any hospitalizations. There is no evidence that the Veteran's service-connected disabilities cause impairment that is not contemplated by the schedular rating criteria or that render impractical the application of the regular schedular standards. See Thun, 22 Vet. App. at 111. Accordingly, referral of this case for consideration of extraschedular ratings is not warranted. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996). Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based in individual unemployability due to service-connected disabilities (TDIU). TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. At all of the VA examinations, the Veteran reported that he was currently employed, and there is no allegation that his service-connected low back disability and/or irritable bowel syndrome have resulted in unemployment. Therefore, consideration of a TDIU is not warranted. ORDER An increased initial rating for irritable bowel syndrome rated as 30 percent disabling from September 12, 2005, to August 20, 2008; 0 percent from August 21, 2008, to July 20, 2010; and 10 percent disabling from July 21, 2010, is denied. An increased initial rating for a low back disability rated as 20 percent disabling prior to August 23, 2011, and 40 percent thereafter, is denied. Service connection for a separate disability rating for radiculopathy of the right lower extremity, associated with the service-connected low back disability, is granted. Service connection for a separate disability rating for radiculopathy of the left lower extremity, associated with the service-connected low back disability, is granted. ____________________________________________ SHEREEN M. MARCUS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs