Citation Nr: 1338811 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-22 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 10 percent for chronic lumbar strain with degenerative disc disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran provided testimony at a Videoconference hearing held before the undersigned Veterans Law Judge (VLJ) of the Board in March 2011. A transcript of that hearing is in the file. After the hearing, the case was remanded in March 2013 for additional development and is currently before the Board for disposition. The Board also notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the Veteran's claim. Any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. During the appeal period, the Veteran's low back disability was productive of forward flexion of the thoracolumbar spine greater than 60 degrees. 2. The evidence fails to show physician-prescribed bed rest to treat incapacitating episodes of intervertebral disc syndrome. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed the propriety of the initially assigned rating for his low back disability from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issue. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for a low back disability was granted, and an initial rating was assigned in the October 2009 rating decision on appeal. Therefore, as the Veteran has appealed the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, this claim was remanded by the Board for additional development in March 2013. There has been substantial compliance with the Board's remand directives, insofar as VA has requested additional treatment records and the Veteran's VA vocational rehabilitation file, which have been obtained and considered. The Veteran has not identified any outstanding treatment records that have not been requested or obtained. Additionally, VA provided the Veteran with new examinations in April 2013 and October 2013 (with the latter report completed in November 2013). D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded a hearing before the undersigned in which he presented oral argument in support of his low back disability claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, at the hearing, the Veteran had representation and his representative questioned the Veteran regarding the degree and intensity of his disability, his ongoing treatment and the impact his disability had on his ability to work. Also, the VLJ sought to identify pertinent evidence not associated with the claim and VA obtained that evidence, which is now associated with the record. Accordingly, the VLJ fulfilled his duties and the Veteran is not shown to be prejudiced on this basis. Thus, the Board finds that VA has fully satisfied its duty to assist. In view of the foregoing, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. Initial Rating The Veteran alleges that his condition is worse than his currently assigned 10 percent rating and that his back disability warrants a higher evaluation. For the reasons explained below, the Board finds that a higher rating is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Board observes that the Veteran expressed his timely disagreement with the October 2009 rating decision that granted him service connection for his disability of the low back. As such, the Veteran appealed the initial evaluation assigned and the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's lumbar spine disability has been rated pursuant to the criteria under the General Rating Formula for Diseases and Injuries of the Spine which provides that 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 is as follows: A 10 percent rating is assigned with 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 disability evaluation is assigned when there is 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. A 40 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability evaluation is assigned when there is unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4. 71a, General Rating Formula for Diseases and Injuries of the Spine. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4. 71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral bending are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4. 71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. To evaluate impairment of the spine due to Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, there must be physician prescribed bed rest. As that is not shown, here, the criteria need not be considered. 38 C.F.R. § 4.71a, DC 5243. As noted above, the Veteran asserts that his low back disability is worse, thus warranting a rating higher than his currently assigned 10 percent. Specifically, the Veteran alleges he experiences stiffness and shocking pain that goes down both legs and into his feet; bowel and bladder incontinence; gastric incapacitating episodes; difficulty bending and moving; decreased range of motion and increased pain. He also stated he was informed that the gastric issues he has, including his diarrhea, could be associated with his low back pain. VA afforded the Veteran a VA examination for his spine in September 2009. He reported he was employed as a security guard. The Veteran described his pain as located in the mid lumbar to sacral area and as daily, sharp, moderate and near-constant. Past treatment consisted of over the counter Advil or Aleve, as needed. The Veteran denied urinary and fecal incontinence, urinary urgency, nocturia, obstipation, erectile dysfunction, numbness, paresthesias, leg and foot weakness, falls or unsteadiness. He said he has additional pain of shock-like sensation into both legs that goes all the way to the feet. He also reported fatigue, decreased motion, stiffness and spasms but no weakness. He reported severe flare-ups that occur daily, lasting 5-10 minutes, time during which he has to stop his activity for a few minutes due to the pain. The Veteran reported 3-4 incapacitating episodes for the previous 12 months which last the entire day when he cannot get out of bed for the day. Upon physical examination, his posture and head position were normal, his gait was antalgic and slow. There was no gibbus, kyphosis, list, lumbar flattening, lumbar lordosis, scoliosis, or ankylosis. The muscles were tender and the Veteran exhibited guarding and pain with motion but no spasm, atrophy or weakness. Range of motion in the thoracolumbar spine was as follows: flexion from 0 to 75 degrees, extension from 0 to 15 degrees; left lateral flexion from 0 to 25 degrees, right lateral flexion from 0 to 30 degrees; left lateral rotation from 0 to 20 degrees and right lateral rotation from 0 to 25 degrees. All ranges of motion were with pain. MRI results from September 2009 showed mild to moderate degenerative disc disease and also IVDS. The examiner noted significant effects on the Veteran's occupation due to decreased mobility, problems with lifting and carrying, difficulty reaching and pain and moderate to severe effects on daily activities. The Veteran was examined again for VA purposes in April 2010. The Veteran described his back as productive of stiffness, spasm and pain in the lower middle back that begins first thing in the morning and that is constant and feels like an electrical shock. He stated that the pain radiates into his legs and feet. He also reported weekly, severe flare-ups, which last for hours to a day or two, which are usually brought on by physical labor. The Veteran reported incapacitating episodes which last the whole day and which he self-treats with rest and medication. He denied use of assistive devices. The Veteran denied urinary and fecal incontinence, obstipation, numbness, or leg and foot weakness. He reported urinary urgency and frequency, nocturia, erectile dysfunction, paresthesias, falls and unsteadiness. The examiner explained that his erectile dysfunction is due to hypogonadism, and his urinary incontinence is due to prostate problems. The examiner was uncertain why the Veteran was having unsteadiness and falls, stating that he cannot say at this point it is secondary to lumbar spine condition. On physical examination, the Veteran's gait was normal, his posture was guarded and he exhibited pain when changing positions from seating to standing. There was no gibbus, kyphosis, list, lumbar lordosis, scoliosis, or ankylosis. There was lumbar flattening. The muscles were tender upon palpitation and the Veteran exhibited guarding and pain with motion but no spasm, atrophy or weakness. Range of motion in the thoracolumbar spine was as follows: flexion from 0 to 70 degrees, extension from 0 to 10 degrees; left lateral flexion from 0 to 15 degrees, right lateral flexion from 0 to 18 degrees; left lateral rotation from 0 to 32 degrees and right lateral rotation from 0 to 29 degrees. All ranges of motion were with pain. There were no additional functional limitations of the spine. VA provided the Veteran another VA spine examination in April 2013. The Veteran reported his back was worse, that he has to stop and rest when doing yard work, and that he experienced increased and more frequent pain and stiffness. The Veteran also reported that in the previous 6-12 months he experienced loss of bowel and urine control, for which he was referred to an urologist. The Veteran reported flare-ups with any kind of physical activity, which causes his back to hurt more, particularly the following day. Also, he reported that prolonged walking or any kind of work is limited by his pain. He denied use of assistive devices. Upon physical examination, the Veteran did not present with tenderness, guarding, or muscle spasm of the spine. Range of motion of the thoracolumbar spine was as follows: forward flexion to 30 degrees, extension to 10 degrees; right lateral flexion to 20 degrees, left lateral flexion to 15 degrees; right lateral rotation to 10 degrees and left lateral rotation to 10 degrees. All ranges of motion were with pain but the Veteran was able to perform repetitive testing. Post-test forward flexion was to 30 degrees, extension to 10 degrees; right lateral flexion to 25 degrees, left lateral flexion to 25 degrees; right lateral rotation to 10 degrees and left lateral rotation to 5 degrees. The examiner noted additional functional loss after repetitive use of pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight-bearing. The Veteran also had bilateral sciatic involvement. The examiner provided a diagnosis of degenerative disc disease of the spine and bilateral, intermittent, sciatica secondary to the degenerative disc disease. The examiner also diagnosed intervertebral disc syndrome with no incapacitation episodes over the previous 12 months. The examiner also noted, however, the following: The Veteran's effort on the ROM portion of this exam did not appear to be to the degree that it is likely that his ROM numbers accurately reflect his level of disability. For this reason, answers to ROM question would be mere speculation. Unable to determine weakened movement, fatiguability, incoordination, etc. if good effort is not being applied. Normally, when we see someone with such low ROM values, the observable pain behaviors are actually fairly intense. Some pain behaviors were exhibited (and recorded) but not to the degree we usually expected. The examiner also opined that the Veteran's bowel and urinary disability was less likely than not related to his back condition. The examiner explained that the Veteran's VA physician is well aware of what constitutes neurologic signs and symptoms of neurologic problems and if his signs and symptoms regarding his bowel and bladder incontinence were neurologic, she would have addressed it as a neurologic problem rather than diagnosing BPH [benign prostatic hypertrophy] for his urinary symptoms and sending him to proctology for his bowel complaints. Additionally, office notes show the Veteran's urinary symptoms improved after treatment for BPH. Ongoing private treatment records, up to July 2013, indicate the Veteran is receiving treatment and physical therapy for chronic low back pain. Such records, however, do not contain specific range of motion findings. VA afforded the Veteran another VA examination in October 2013, where the Veteran reported escalation of the electrical shocks he has in his legs during the night, with the left side feeling worse. (The Board notes the RO did not provide the Veteran a Supplemental Statement of the Case after this examination, but because it is essentially cumulative of findings shown when the Veteran fully cooperates, this omission is harmless.) At his October 2013 examination, the Veteran reported that the shock sensations, which occur daily, last a split second and are gone. He also reported urinary incontinence and diarrhea as due to his back condition and that his low back hurts all the time. The examiner noted that the Veteran did not report flare-ups. Upon physical examination, the Veteran did not present with pain, tenderness guarding or muscle spasm of the spine. He had no muscle atrophy, no neurologic abnormalities or intervertebral disc syndrome. Range of motion of the thoracolumbar spine was as follows: forward flexion to 65 degrees, with evidence of pain. His extension was to 15 degrees; right lateral flexion to 30 degrees, left lateral flexion to 30 degrees; right lateral rotation to 30 degrees and left lateral rotation to 30 degrees, with no objective evidence of painful motion. The Veteran's range of motion remained identical with 3 repetitions, with no additional functional loss noted. The examiner noted that according to a subsequent electrodiagnostic study performed on the Veteran in November 2013, there was no evidence of right or left tibial neuropathy, left sural neuropathy, peripheral polyneuropathy, myopathy or right or left radiculopathy. Moreover, the Veteran's spine condition did not impact his ability to work. The examiner stated: There is no electrodiagnostic evidence of a radiculopathy, polyneuropathy, neuropathy or myopathy on the EMG; therefore the Radiculopathy was removed from the diagnosis. This Veterans physical exam was also negative for rad This Veteran complains of low back pain and did demonstrate subjective pain with a grunt during the initial ROM measurement. However, after this, there were no further subjective or objective signs of pain, decreased range of motion, fatigue, weakness, incoordination or decrease in function with the De Luca measurements, therefore, it would require mere speculation to attempt to quantify any additional limitation that may or may not occur with repetitive motion. Based on the evidence above, the Board finds the ranges of motion of the Veteran's thoracolumbar spine more nearly approximate the requirements for a 10 percent rating. The probative evidence shows the Veteran had forward flexion ranging between 65 to 75 degrees. In none of the examinations did he have a combined range of motion of the thoracolumbar spine (the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) not greater than 120. Also, the Veteran was not found to have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Furthermore, the Veteran was not found to have ankylosis. The Board recognizes that the Veteran was found to have pain during the range of motion testing and that he reports flare-ups; however, even with that finding, the evidence does not show that the Veteran has additional limitation that he would meet the criteria for a higher rating. Therefore, the Board finds that a higher rating than 10 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. The Board recognizes that at the April, 2013 examination the Veteran's forward flexion of the thoracolumbar spine was not greater than 30 degrees. However, the examiner noted that the Veteran's effort on the range of motion portion of the examination did not appear to be to the degree that likely reflected his disability. The examiner explained that normally, in someone with such low range of motion as the Veteran exhibited at the examination, the observable pain behaviors would be fairly intense. Here, however, the Veteran exhibited some pain behaviors but not to the degree expected. Thus, the Board does not consider the range of motion findings from this report to be accurate. Furthermore, because this report reflects what the examiner considered to be a purposeful exaggeration of symptoms, the Board deems any history or complaints the Veteran reports to be suspect, and therefore to be accorded little probative value. In this regard, the Board also notes the Veteran alleged that his April 2010 VA examination was inadequate for rating purposes because he was on medication and the examiner could not properly consider his pain and incapacitating episodes. In this case, there is no clear evidence that the Veteran was not properly evaluated or examined in light of the disability at issue. The examination the Veteran is contesting was conducted by a VA staff physician, who specifically indicated that he reviewed the claims file and completed a physical examination of the Veteran. The Board further notes that the examination report was comprehensive and addressed all of the relevant rating criteria. Further, the examiner provided findings with respect to the Veteran's gait and his pain following repetitive motion. Also, contrary to the Veteran's assertions, there are notations in the examination report that the examiner addressed the question of incapacitating episodes due to intervertebral disc syndrome. Moreover, the examiner's findings at the April 2010 examination are consistent with the other examinations of record, which the Veteran is not contesting. Additionally, even if the Veteran were taking medication at the time of his April 2010 examination, being medicated is not a basis upon which to find the examination inadequate. Thus, the Board has considered the Veteran's contention that his April 2010 VA examination was inadequate, but finds that it is without merit. Therefore, the report may be considered in adjudicating the claim. The Board also acknowledges the Veteran's assertions that his bowel and bladder dysfunction, including diarrhea, are related to his low back disability. The Board notes, however, that the April 2013 examiner addressed these contentions and opined that the Veteran's bowel and urinary disability was less likely than not related to his back condition because his VA treating physician determined they were not neurologic but rather urologic in nature and also because the Veteran's urinary symptoms improved after treatment for BPH. Moreover, while the Veteran is competent to report his incontinence and diarrhea, he is not competent to relate those symptoms to his low back disability because he is not a medical professional and the conditions he is discussing are complex in nature. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lastly, and consistent with the Board's finding, there is no medical evidence to support the Veteran's contentions that his gastric problems are related to his low back disability. With respect to neurological manifestations, the Board notes that the Veteran was granted service connection for radiculopathy of the left and right lower extremities, each evaluated as 10 percent disabling. As the Veteran has not filed a notice of disagreement with that decision, it will not be addressed by the Board. In light of the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his thoracolumbar spine disorder for any period of the appeal. Extraschedular In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected low back disability with the criteria found in the rating schedule. The Board finds that the Veteran's low back disability symptomatology is fully addressed by the rating criteria under which the disability is rated, since it contemplates functional loss which may be manifested by decreased or abnormal excursion, strength, speed, coordination and endurance, in addition to limitation of motion. Likewise, it contemplates such factors as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. Given the wide variety of manifestations of functional loss contemplated by the rating criteria, it reasonably contemplates the Veteran's disability picture, and therefore, referral for extra-schedular consideration is not required. TDIU Consideration In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran has not raised the issue of employability due to his service-connected disability, and the evidence shows he retired due to his age and duration of work. Thus, entitlement to TDIU benefits is not implicated here. ORDER An initial rating in excess of 10 percent for a low back disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs