Citation Nr: 1337352 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-18 707A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chronic low back strain with degeneration of the lumbosacral disc during the period prior to January 28, 2013. 2. Entitlement to a rating in excess of 20 percent for chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis, for the period since January 28, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1956 to September 1959 and from February 1974 to February 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the 10 percent disability rating assigned for chronic low back strain with degeneration of the lumbosacral disc. The claim was remanded by the Board in July 2012 for additional development. While in remand status, the Appeals Management Center (AMC) issued a rating decision in February 2013, which recharacterized the disability as chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis. A 20 percent rating was assigned effective January 28, 2013. Despite the increased rating granted, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a decision assigning a particular rating, a subsequent decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Given the actions taken by the AMC, the issue has been characterized as reflected on the title page. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Prior to January 28, 2013, the Veteran's chronic low back strain with degeneration of the lumbosacral disc was not so severe as to cause symptoms manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or intervertebral disc syndrome (IDS) with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 2. Since January 28, 2013, the Veteran's chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis has not so severe as to result in forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 3. The subjective neurological complaints have been diagnosed as radiculitis and radiculopathy, but there is only objective electromyographic evidence of peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for chronic low back strain with degeneration of the lumbosacral disc have not been met prior to January 28, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). 2. The criteria for a rating in excess of 20 percent for chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis have not been met as of January 28, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100%" based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by a letter dated in July 2008, and additional notice by a December 2008 letter. The claim was readjudicated in a June 2009 statement of the case. Mayfield, 444 F.3d at 1333. VA has obtained service treatment records; assisted the appellant in obtaining evidence, to include VA records; afforded the appellant physical examinations; and obtained medical opinions as to the severity of his disability. There was substantial compliance with the Board's July 2012 remand as additional VA treatment records were obtained and another VA examination was conducted. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Increased Rating Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Staged ratings have already been implemented in this case. When evaluating disabilities of the musculoskeletal system, an evaluation of the extent of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. A finding of functional loss due to pain must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." 38 C.F.R. § 4.40. Service connection for chronic low back strain with degeneration of the lumbosacral disc was granted pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5292, with a 10 percent disability rating effective May 26, 1976. See August 1976 rating decision. The 10 percent rating was continued pursuant to Diagnostic Code 5237 in the September 2008 rating decision that is the subject of this appeal. As noted in the Introduction, the AMC recharacterized the disability as chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis in a February 2013 rating decision. A 20 percent rating was implemented pursuant to Diagnostic Code 5243 effective January 28, 2013. The Veteran has not made any specific argument or assertion as to why he is entitled to a rating in excess of 10 percent prior to January 28, 2013, or a rating in excess of 20 percent as of that date, for his low back disability. Disabilities of the lumbar spine (other than IDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51, 454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1) (2013). In pertinent part, the General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 (2013). Ratings in excess of 20 percent are provided for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of entire spine (100 percent). Id. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). 38 C.F.R. § 4.71a, Note (2) provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a (2013). Under the criteria governing disabilities of the lumbar spine, IDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes. This formula provides a rating of 10 percent for IDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a rating of 20 percent for IDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a (2013). An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1) (2013). The medical evidence in this case consists entirely of VA treatment records and several VA examination reports. An October 2007 magnetic resonance imaging (MRI) contains an impression of diffuse spondylosis most severe at L3-4 and L4-5, which creates moderate neuroforamina narrowing and thecal sac narrowing at these levels; modic type II degenerative endplate changes with anterior osteophyte fusion at L5-S1; and old L1 and L2 compression deformities. A March 2008 VA neurosurgery consult reveals that the Veteran was seen with chief complaint of chronic low back pain. He reported that he was having left anterior thigh pain and the subjective sensation that his left leg was going to give out. He stated that he had pain that radiated down to his left ankle through his anterior thigh. It was noted that MRI/electromyography (EMG) had not revealed radiculopathy. The Veteran reported that his back pain was worse when leaning forward and improved when standing upright. The October 2007 MRI impression was reported. Physical examination revealed motor examination was 5/5 and symmetric; patellar reflexes were 1+ and were 1+ with bilateral ankle jerk; and straight leg raise was negative bilaterally. The diagnosis was lumbar spondylosis with small far lateral L3/4 disc on the left. It was noted that the Veteran was neurologically intact and although there was some radiographic evidence of a far lateral left L3/4 herniated nucleus pulposus, he had no evidence of radiculopathy such that no neurosurgical intervention was indicated. Epidural steroid injections and physical therapy were recommended. The Veteran underwent a VA spine examination in September 2008. He reported increased pain with activity and difficulty sleeping. He indicated taking nonsteroidal anti-inflammatory medication with fair response. He denied a history of urinary incontinence, urinary urgency, urinary retention requiring catheterization, urinary frequency, nocturia, fecal incontinence, obstipation, erectile dysfunction, numbness, paresthesias, leg or foot weakness, falls, unsteadiness, visual dysfunction and dizziness. The Veteran did note a history of fatigue, decreased motion, stiffness, weakness, spasms and pain. The pain was located in his low back, reportedly worse with activity, and described as a dull ache with occasional sharpness. The pain was reported to be severe, noted to last for hours. Frequency of painful episodes was reported to be one to six days per week. The Veteran reported radiation of pain to both legs and calves and described the radiating pain as numb/tingling. He denied flare ups of the spinal condition and the use of a device/aid. The Veteran was able to walk one quarter of a mile and denied any incapacitating episodes over the past 12 months. Physical examination of the muscles of the spine at the time of the September 2008 VA spine examination revealed pain with motion and tenderness of the left and right thoracic sacrospinalis, but no spasm, atrophy, guarding or weakness. There was no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. Inspection of the spine revealed normal posture, head position, and gait type. There was symmetry in appearance and no abnormal spinal curvatures (gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis or reverse lordosis). Sensory examination revealed normal vibration, pain (pinprick), light touch, and position sense of the bilateral upper and lower extremities. Reflex examination revealed normal abdominal, knee jerk, ankle jerk and plantar (Babinski) flexion, bilaterally. Range of motion testing of the thoracolumbar spine revealed active and passive flexion from zero to 90 degrees with pain beginning at 60 degrees. Active extension was from zero to 20 degrees and passive extension was from zero to 30 degrees, with pain beginning at 20 degrees and ending at 30 degrees. Active and passive lateral flexion and lateral rotation was from zero to 30 degrees, bilaterally, with pain on both active and passive motion. Resisted isometric movement was normal for all ranges, there was no pain on repetitive use for all ranges, and there was no additional loss of motion on repetitive use of the joint for all ranges. Lasegue's sign was negative and the examiner noted that x-ray of the lumbar spine revealed diffuse advanced degenerative arthritis. The diagnosis was lumbar degenerative joint disease. There were effects on usual daily activities, namely mild effects on feeding and grooming and moderate effects on chores, shopping, recreation, traveling, bathing, dressing and toileting. Exercise and sports were prevented. The examiner noted that the current severity was moderate. A March 2009 neurosurgery outpatient note reveals that the Veteran was seen with chief complaint of left anterior thigh pain and chronic low back pain. He indicated that about two years prior, he began having pain into the anterior thigh, shin to anterior ankle and burning of the soles of his feet and toes. He complained that the left leg felt like it was not going to support him, that back pain was worse with standing, and that he had bilateral hip pain with walking more than one block. The leg pain/feet burning had improved with medication. Examination revealed that pedal pulses were palpable bilaterally. The Veteran was able to bend forward 80 degrees with complaint of low back pain. Straight leg raise was negative and motor examination revealed normal muscle bulk and tone. Gait and station were stable and the Veteran was able to walk using a standard cane. A limp was noted and the Veteran was able to stand on his heels and toes. Muscle strength testing was normal bilaterally for all muscles tested, including the quadriceps and hamstrings. There was response to pinprick testing during sensory examination but deep tendon reflexes were diminished in both patellas (1/4) and absent in both Achilles (0/4). Babinski test was negative. The examiner reported that lumbar MRI dated March 2009 showed modic changes L5-S1, multilevel spondylosis and facet hypertrophy greatest at L4-5 with some lateral recess stenosis L4-5 left. A March 2009 EMG/NCS was reported as showing electrophysiologic evidence consistent with early or developing, symmetric, predominantly axonal, sensory greater than motor peripheral neuropathy; and no electrodiagnostic evidence of acute lumbar or sacral radiculopathy involving either lower extremity. The impression was that the Veteran was neurologically intact without clinical evidence of radiculopathy such that no neurosurgery intervention was indicated. A June 2009 pain consult note reports that the Veteran was referred for evaluation and treatment of chronic low back pain and L5 radiculopathy. The Veteran complained of chronic lower back pain and right shoulder and right knee pain. He noted intermittent pain with a maximum intensity of level five/six on a scale of 10, which was present after certain movements but was not a continuous problem. The examiner noted that the Veteran referred to a burning sensation on both soles and that he had peripheral neuropathy documented on EMG. Posture was described as straight and gait as normal. Muscles showed no contractures. Range of motion testing of the lumbar spine revealed normal flexion, extension, rotation and medial and lateral movement. Heel and tip toe walking were normal and reflexes were 2+ throughout. Major muscle group strength testing revealed bilaterally normal quadriceps and hamstrings. Sensory examination was also intact. An August 2010 urgent care provider note reveals that the Veteran was seen with chief complaint of "Lower back pain, left side, especially when bending, getting out of car and bed." The examiner noted that the Veteran had a history of service-connected chronic low back pain that he had managed conservatively without medications, but presented with an acute exacerbation of back pain times one week. It was noted that about a week ago, the Veteran was standing up to get out of a van when he felt a sharp, zinging pain in his left lower back. He had reproduced this pain every time he stood from a seated position, specifically as he straightened from the waist up. The pain did not radiate and was fairly short-lived when it occurred. The Veteran denied pain when seated or lying down. He indicated that for the past few months, he had noticed numbness of his left leg if he put all/most of his weight on that hip joint, but this was not associated with the new pain. The Veteran felt he might have some generalized leg weakness, but denied falling. He also denied any loss of bowel or bladder function. There were no other acute physical complaints. Physical examination revealed no pain to palpation of the lumbar or thoracic vertebrae, no pain to palpation of the paraspinous muscles, and full range of motion with flexion, extension, lateral flexion, and twisting. After straightening from flexion, pain was reproduced in left lower back muscles and spasms were felt. Neurological examination revealed equal strength in the bilateral lower extremities. Sensation was equal bilaterally and balance and gait were normal. The assessment was acute chronic low back pain with scoliosis and extensive lumbar, sacroiliac, and acetofemoral degenerative joint disease. The Veteran was seen in the pain clinic in November 2010 for back pain. It was noted that neurosurgery had recommended against surgery. The Veteran complained of lumbar pain, midline. Examination of the back revealed minimal bilateral lumbar tenderness. The assessment was low back pain exacerbation and left leg paresthesia with standing. See primary care note. The Veteran was seen in December 2010 with chief complaint of low back pain with L4 radiculopathy. The pain was in the low back, and when standing, he had paresthesias starting in his left great toe radiating up to his hip through the L4 distribution. The Veteran indicated that sleep was not affected by pain and that he could walk around 440 yards limited by pain over the lateral hip. He indicated that it felt like if the weather were nice now, he could go outside and paint his house. There was no tenderness over the spinous processes. Strength was 4/5 in the left quadriceps and 5/5 throughout otherwise. Pinprick, cold sensation, and light touch were intact and symmetric throughout. There was no sacroiliac pain bilaterally and no pain over palpation of greater trochanter. Pain on L4/L5 facet loading was noted bilaterally. The examiner reported that L3-L4 images demonstrated broad-based disc osteophyte with hypertrophied facet joints and ligamentum flavum. There was also moderate canal narrowing but cerebrospinal fluid (CSF) remained about the nerve roots. There was mild left lateral recess narrowing. L4-L5 images demonstrated broad-based disc osteophyte with facet joint and ligamentum flavum hypertrophy. There was mild canal and left lateral recess narrowing with small synovial cyst on the left. The assessment was left L4 radiculopathy. See pain note. The Veteran was seen in April 2011 with complaints of aching low back pain at a level six out of 10 associated with level three out of 10 burning and tingling along the left thigh and leg into the anterior ankle and plantar aspect of the left foot. There was tenderness to palpation along the L5-S1 paraspinal area. A November 2010 MRI of the lumbar spine was reported, which contained an impression of multilevel degenerative findings are seen with canal, lateral recess and foraminal narrowing. There was also a stable 3.5 centimeter infrarenal abdominal aortic aneurysm. See pain note. The Veteran was seen in September 2011 for a steroid injection. He reported pain at a level three out of 10 in the low back with numbness and tingling in the lateral left leg. The assessment was chronic left low back and leg pain; lumbar radiculitis; and lumbar degenerative disc disease. See pain note and informed consent note. An April 2012 pain note documents that the Veteran reported a return of pain, which was located left lumbar region with radiation to the foot and was described as deep, burning and occurring daily. Pain was rated at a level six to 10 on an 11-point scale. It was aggravated by activity and walking and decreased by rest. The Veteran did not describe tingling, numbness or weakness and denied bowel/bladder symptoms, fever, chills, and infections. Neurologic examination revealed positive straight leg raise and normal sensory examination. There was tenderness to palpation over the lumbar paraspinous. The Veteran underwent a VA back conditions Disability Benefits Questionnaire (DBQ) on January 28, 2013, pursuant to the Board's July 2012 remand. Under diagnosis, the examiner reported that the Veteran currently had or had had lumbar spine with degenerative joint disease/degenerative disc disease at L2-S1, per imaging. The Veteran reported that he continued to have back pain and received periodic epidural injections, which helped a little. He also reported flareups, which he indicated were due to weather changes and occurred once a week lasting for a day and requiring him to lie in bed. The flareups were relieved by medication and rest. Range of motion testing revealed forward flexion to 50 degrees with objective evidence of painful motion beginning at 40 degrees. Extension was to 15 degrees with objective evidence of painful motion beginning at 5 degrees. Bilateral lateral flexion was to 25 degrees with objective evidence of painful motion beginning at 15 degrees. Bilateral lateral rotation was to 30 degrees or greater with objective evidence of painful motion beginning at 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. There was no change in range of motion following three repetitions. The examiner reported that there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing, but the Veteran had functional loss/functional impairment in the form of less movement than normal and pain on movement after repetitive use. There was no weakened movement, excess fatigability or incoordination. There was localized tenderness or pain to palpation for the joints and/or soft tissue of the thoracolumbar spine, specifically reported as bilateral paraspinous muscle tenderness of the lumbar spine. The Veteran also had guarding or muscle spasm of the thoracolumbar spine, but it did not result in abnormal gait or spinal contour. Muscle strength testing during the January 2013 DBQ revealed normal strength during bilateral hip flexion, bilateral knee extension, bilateral ankle plantar flexion, bilateral ankle dorsiflexion, and bilateral great toe extension. There was no muscle atrophy. Reflex examination revealed normal bilateral knee and bilateral ankle deep tendon reflexes. Sensory examination to light touch was normal in the bilateral upper anterior thigh (L2), the bilateral thigh/knee (L3/4), the bilateral lower leg/ankle (L4/L5/S1) and the bilateral foot/toes (L5). Straight leg testing was negative on both left and right. It was noted that the Veteran had radicular pain or other signs/symptoms due to radiculopathy. There was constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness, all described as mild in the right lower extremity and as moderate in the left lower extremity. There were no other signs or symptoms of radiculopathy. And the examiner indicated that none of the nerve roots were involved as neither the right nor left side was affected by radiculopathy. There were no other neurologic abnormalities or findings related to the thoracolumbar spine, such as bowel or bladder problems. The examiner noted that the Veteran had IDS of the thoracolumbar spine, but did not have any incapacitating episodes over the past 12 months as a result. An assistive device as a normal mode of locomotion in the form of regular use of a cane was reported. The examiner noted that imagining studies documented arthritis and that the Veteran had other significant diagnostic test findings and/or results in the form of a November 2010 MRI, which contained an impression of multilevel degenerative findings seen with canal, lateral recess and foraminal narrowing, as well as a stable 3.5 centimeter infrarenal abdominal aortic aneurysm. The January 2013 VA examiner also reported that the Veteran's thoracolumbar spine condition impacted his ability to work as he limited lifting and bending to minimal just a few pounds and could not walk more than one block or stand more than 10 minutes due to his back limiting many physical activities. The examiner also made a point to note that although subjective radiculopathy symptoms were reported, there was no current objective evidence for any spinal radiculopathy found on examination. The examiner also noted that passive range of motion was unchanged from active. On repetitive use testing, range of motion values were unchanged from baseline values reported. There was no pain, fatigue, weakness or incoordination noted. Lastly, the examiner noted that the functional limitations noted during the examination were as reported by the Veteran. The preponderance of the evidence of record does not support the assignment of a rating in excess of 10 percent for chronic low back strain with degeneration of the lumbosacral disc prior to January 28, 2013. This is so because the Veteran did not exhibit forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees at any time as of that date. Rather, at worst, forward flexion of the thoracolumbar spine was limited to 80 degrees. See March 2009 neurosurgery outpatient note; see also Plate V, 38 C.F.R. § 4.71a (2013). There is also no evidence that the Veteran exhibited a combined range of motion of the thoracolumbar spine not greater than 120 degrees. Rather, he exhibited a combined range of motion of 230 degrees during the September 2008 VA spine examination. In addition to the foregoing, although there was objective evidence of intermittent tenderness and spasm on several occasions prior to January 28, 2013, there was never any objective evidence that the tenderness or spasm was severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; nor was there objective evidence of guarding. See September 2008 VA examination report; August 2010 urgent care note; pain notes dated November 2010 and April 2011. Rather, inspection of the Veteran's spine during the September 2008 VA examination revealed normal posture, head position, and gait type, and the examiner specifically noted that there was symmetry in appearance and no abnormal spinal curvatures (gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis or reverse lordosis). In addition, gait and station were described as stable at the time of the March 2009 neurosurgery outpatient note; posture was described as straight and gait as normal at the time of a June 2009 pain consult note; and balance and gait were both reported as normal during an August 2010 urgent care provider note. For all these reasons, the assignment of a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted for chronic low back strain with degeneration of the lumbosacral disc prior to January 28, 2013. There is also no evidence of incapacitating episodes of IDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months so as to support the assignment of a 20 percent rating prior to January 28, 2013, under the Formula for Rating IDS Based on Incapacitating Episodes. Although there is evidence of IDS, the Veteran specifically denied any incapacitating episodes over the past 12 months at the time of the September 2008 VA examination. Moreover, there is no indication from the VA treatment records that bed rest was ever prescribed. Consideration has been given to any functional impairment and any effects of pain on functional abilities. The Board acknowledges that there was objective evidence of pain during both active and passive range of motion testing for all motions at the time of the September 2008 VA spine examination. More specifically, there was pain beginning at 60 degrees of forward flexion and at 20 degrees of extension, with the Veteran being able to flex to 90 degrees and to actively extend to 30 degrees. Even if range of motion was limited by pain beyond that shown during the September 2008 examination, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case it does not. More specifically, there was no evidence of pain or additional loss of motion on repetitive use of the joint for all ranges of motion at the time of that examination. In addition, resisted isometric movement was normal for all ranges. In light of the foregoing, the Board finds that a rating in excess of 10 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the guidelines set forth in DeLuca for chronic low back strain with degeneration of the lumbosacral disc prior to January 28, 2013. This is so because even taking into account the findings of pain at 60 degrees of forward flexion during the September 2008 VA spine examination, the Veteran was still able to forward flex to 90 degrees after repetitive range of motion testing, which is 30 degrees away from the amount needed to support a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). The preponderance of the evidence of record also does not support the assignment of a rating in excess of 20 percent for chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis as of January 28, 2013. This is so because the Veteran did not exhibit forward flexion of the thoracolumbar spine 30 degrees or less at any time as of that date. Rather, at worst, forward flexion of the thoracolumbar spine was limited to 50 degrees. See January 2013 VA back conditions DBQ; see also Plate V, 38 C.F.R. § 4.71a (2013). There is also no evidence that the Veteran exhibited favorable ankylosis of the entire thoracolumbar spine as this spinal segment was not fixed in neutral position (zero degrees) at the time of the January 2013 back conditions DBQ. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5). For all these reasons, the assignment of the next highest (40 percent) rating under the General Rating Formula for Diseases and Injuries of the Spine is not warranted for chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis as of January 28, 2013. There is also no evidence of incapacitating episodes of IDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months so as to support the assignment of a 40 percent rating as of January 28, 2013, under the Formula for Rating IDS Based on Incapacitating Episodes. Although the examiner noted that the Veteran had IDS of the thoracolumbar spine, it was specifically noted that he did not have any incapacitating episodes over the past 12 months as a result. Moreover, while the Board acknowledges that the Veteran reported flareups at the time of the January 2013 DBQ, which he indicated occurred once a week, lasted for a day, and required him to lie in bed, there is no indication from the VA treatment records that bed rest was ever prescribed. Consideration has been given to any functional impairment and any effects of pain on functional abilities. The Board acknowledges that there was objective evidence of painful motion for all ranges of motion tested at the time of the January 2013 DBQ. More specifically, there was pain beginning at 40 degrees of forward flexion, at 5 degrees of extension, at 15 degrees of bilateral lateral flexion, and at 20 degrees of bilateral lateral rotation, with the Veteran being able to flex to 50 degrees, extend to 15 degrees, bilaterally laterally flex to 15 degrees, and bilaterally laterally rotate to 30 degrees or greater. Even if range of motion was limited by pain beyond that shown during the January 2013 DBQ, the Board again notes that pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell, 25 Vet. App. at 43; see also 38 C.F.R. § 4.40. In this case it does not. While the Board acknowledges that the January 2013 VA examiner reported that the Veteran had functional loss/functional impairment in the form of less movement than normal and pain on movement after repetitive use, the examiner specifically indicated that these functional limitations were reported by the Veteran. There was no objective evidence of such noted by the examiner. Rather, the examiner indicated that the Veteran was able to perform repetitive-use testing with three repetitions, that there was no change in range of motion following three repetitions, and that there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. In light of the foregoing, the Board finds that a rating in excess of 20 percent is not warranted under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the guidelines set forth in DeLuca for chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis as of January 28, 2013. This is so because even taking into account the findings of pain at 40 degrees of forward flexion during the January 2013 DBQ, the Veteran was still able to forward flex to 50 degrees after repetitive range of motion testing, which is 20 degrees away from the amount needed to support the next highest (40 percent) rating under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). Neurological Consideration The Board has considered whether the Veteran manifests any associated objective neurologic abnormalities so as to warrant a separate rating under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The Veteran has consistently denied any bowel or bladder impairment. The Veteran has also consistently reported subjective neurological complaints throughout the appellate period. During a March 2008 VA neurosurgery consult, he reported left anterior thigh pain, the sensation that his left leg was going to give out, and that pain radiated down to his left ankle through his anterior thigh. The examiner specifically noted that Magnetic resonance imaging (MRI) and EMG had not revealed radiculopathy and that the Veteran was neurologically intact. The Veteran also reported radiation of pain to both legs and calves, which was described as numb/tingling, at the time of the September 2008 VA examination. Sensory and reflex examinations, however, were completely normal. A March 2009 neurosurgery outpatient note reveals that the Veteran reported pain into the anterior thigh and shin down to the anterior ankle, as well as burning of the soles of his feet and toes. There was objective evidence of diminished deep tendon reflexes at that time, although sensory examination was normal. The examiner reported that the electrophysiologic evidence was consistent with early or developing, symmetric, predominantly axonal, sensory greater than motor peripheral neuropathy and that there was no electrodiagnostic evidence of acute lumbar or sacral radiculopathy involving either lower extremity. From that time forward, although the Veteran continued to report subjective neurological complaints involving his lower extremities, the examiners typically reported that EMG documented peripheral neuropathy and that sensory and reflex examinations related to the Veteran's thoracolumbar spine disability was normal. See June 2009 pain consult note; August 2010 urgent care provider note. On those occasions when the Veteran was diagnosed with a neurological abnormality related to his thoracolumbar spine disability, the assessment was based on those subjective complaints, not on objective documentation or manifestation. See e.g., December 2010 pain note (left L4 radiculopathy); September 2011 pain and informed consent notes (lumbar radiculitis). The January 2013 VA examiner acknowledged the Veteran's signs and symptoms due to radiculopathy, to include radicular pain described as mild in the right lower extremity and moderate in the left lower extremity, but the examiner specifically noted that there was no nerve root involvement as there was no radiculopathy. The Board acknowledges that as of January 28, 2013, the Veteran's service-connected chronic low back strain with degeneration of the lumbosacral disc has included a finding of left lower extremity radiculitis. Despite the subjective complaints that pepper the appellate timeframe, however, the preponderance of the evidence does not support a finding that the Veteran has a neurological abnormality affecting either lower extremity as a result of his service-connected disability. More specifically, the neurological testing done in conjunction with the diagnosed thoracolumbar spine disability has elicited normal motor, reflex and sensory examinations. Muscle strength testing has also consistently been normal. See VA treatment records; VA examination reports. On the one occasion that deep tendon reflexes were diminished in both patellas and absent in both Achilles, the examiner noted that there was electrophysiologic evidence consistent with peripheral neuropathy, not acute lumbar or sacral radiculopathy of either lower extremity. See March 2009 neurosurgery outpatient note. The Board again notes that the September 2011 diagnosis of lumbar radiculitis was based on subjective complaints, not on objective documentation or manifestation. See pain and informed consent notes. In the absence of any medical evidence of a diagnosis related to neurological abnormality associated with the Veteran's service-connected chronic low back strain with degeneration of the lumbosacral disc that was not solely based on the Veteran's subjective complaints, the evidence of record does not support the assignment of a separate rating at any time since the inception of the Veteran's claim for increased rating. Extraschedular Consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). 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. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected lumbar spine disability picture is not so unusual or exceptional in nature as to render the 10 and 20 percent ratings assigned inadequate at any time during the period on appeal. The Veteran's service-connected lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, the criteria of which is found by the Board to specifically contemplate the level of disability and symptomatology. 38 C.F.R. § 4.71a. The Veteran's lumbar spine disability is manifested by subjective and objective evidence of pain and limited motion. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 10 and 20 percent disability ratings assigned. Ratings in excess of 10 and 20 percent are provided for certain manifestations of a lumbar spine disability, but the medical evidence of record did not demonstrate that such manifestations were present in this case. The criteria for the 10 and 20 percent disability ratings assigned more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. Inferred Claim for TDIU The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran reported being retired at the time of the September 2008 VA spine examination. The Veteran has never asserted that he is unemployable. Given the foregoing, and in the absence of any evidence suggestive of unemployability due to the Veteran's service-connected lumbar spine disability, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating in excess of 10 percent for chronic low back strain with degeneration of the lumbosacral disc prior to January 28, 2013, is denied. A rating in excess of 20 percent for chronic low back strain with degeneration of the lumbosacral disc and left lower extremity radiculitis as of January 28, 2013, is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs