Citation Nr: 1340935 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-19 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to January 28, 2009 for thoracic spine strain with degenerative disc disease, lumbar degenerative disc disease status post laminectomy and decompression from 5th thoracic vertebra cord compression/injury secondary to osteophyte (thoracic spine disability) under 38 U.S.C.A. § 1151. 2. Propriety of a rating reduction from 40 percent to 20 percent for thoracic spine disability under 38 U.S.C.A. § 1151. 3. Entitlement to an initial rating in excess of 40 percent from January 28, 2009 to September 30, 2011 for thoracic spine disability under 38 U.S.C.A. § 1151. 4. Entitlement to an initial rating in excess of 20 percent as of October 1, 2011 for thoracic spine disability under 38 U.S.C.A. § 1151. 5. Entitlement to an initial rating in excess of 10 percent for tender scar secondary to thoracic spine disability under 38 U.S.C.A. § 1151. 6. Entitlement to an initial rating in excess of 20 percent for paresthesia of the right lower extremity secondary to thoracic spine disability under 38 U.S.C.A. § 1151. 7. Entitlement to an initial rating in excess of 20 percent for paresthesia of the left lower extremity secondary to thoracic spine disability under 38 U.S.C.A. § 1151. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 28, 2009. [The issue of whether the amount of a settlement under the Federal Torts Claims Act (FTCA) should be offset against disability compensation awarded pursuant to 38 U.S.C.A. § 1151 is addressed in a separate Board decision under a different docket number.] REPRESENTATION Veteran represented by: Theodore C. Jarvi, Esq. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In May 2011, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. The issue of a TDIU prior to January 28, 2009 is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. Prior to January 28, 2009, the service-connected thoracic spine disability under 38 U.S.C.A. § 1151 more closely approximated manifestations of limited forward flexion, at worst, to 70 degrees, limited combined range of motion, at worst, to 150 degrees, and painful motion; with no intervetebral disc syndrome based on incapacitating episodes, ankylosis, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. In a February 2011 rating decision, the RO determined there was improvement in the service-connected thoracic spine disability under 38 U.S.C.A. § 1151 and proposed to reduce the 40 percent evaluation, effective January 28, 2009, to 20 percent. In a July 2011 rating decision, the RO reduced the evaluation to 20 percent, effective October 1, 2011. 3. The 40 percent evaluation for the service-connected thoracic spine disability under 38 U.S.C.A. § 1151 had been in effect for less than five years, and the RO complied with the procedural requirements for reduction. 4. There was improvement in the service-connected thoracic spine disability under 38 U.S.C.A. § 1151, superficially an increase in forward flexion of the thoracolumbar spine; therefore, reduction of the disability rating for the service-connected thoracic spine disability under 38 U.S.C.A. § 1151 from 40 percent to 20 percent was proper. 5. From January 28, 2009 to September 30, 2011, the service-connected thoracic spine disability under 38 U.S.C.A. § 1151 more closely approximated manifestations of limited forward flexion, at worst, to 28 degrees, painful motion, tenderness, and muscle spasm; with no intervetebral disc syndrome based on incapacitating episodes or ankylosis. 6. From October 1, 2011 to the present, the service-connected thoracic spine disability under 38 U.S.C.A. § 1151 more closely approximates manifestations of limited forward flexion, last reported, to 55 degrees, limited combined range of motion, last reported, to 130 degrees; with no intervetebral disc syndrome based on incapacitating episodes or ankylosis. 7. For the entire initial rating period on appeal, the service-connected tender scar secondary to thoracic spine disability under 38 U.S.C.A. § 1151 more closely approximates manifestations of a superficial scar with pain. 8. For the entire initial rating period on appeal, the service-connected paresthesia of the bilateral lower extremities secondary to thoracic spine disability under 38 U.S.C.A. § 1151 more closely approximate manifestations of moderate incomplete paralysis with pain, numbness, and weakness. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for thoracic spine disability under 38 U.S.C.A. § 1151 have not been met for any period prior to January 28, 2009. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC)s 5242-5243 (2013). 2. The RO satisfied the procedural requirements governing the reduction in ratings prior to effectuating its July 2011 rating decision implementing the proposed reduction of the 40 percent rating for service-connected thoracic spine disability under 38 U.S.C.A. § 1151. 38 C.F.R. § 3.105(e) (2013). 3. The reduction of the Veteran's disability rating for service-connected thoracic spine disability under 38 U.S.C.A. § 1151 from 40 percent to 20 percent was warranted, and the requirements for restoration of a 40 percent rating for this service-connected disability have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.13, 4.71a, Diagnostic Code (DC)s 5242-5243 (2013). 4. The criteria for an initial disability rating in excess of 40 percent for thoracic spine disability under 38 U.S.C.A. § 1151 have not been met for any period from January 28, 2009 to September 30, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5242-5243 (2013). 5. The criteria for an initial disability rating in excess of 20 percent for thoracic spine disability under 38 U.S.C.A. § 1151 have not been met for any period as of October 1, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.71a, DCs 5242-5243 (2013). 6. The criteria for an initial disability rating in excess of 10 percent for tender scar secondary to thoracic spine disability under 38 U.S.C.A. § 1151 have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7 (2013); 38 C.F.R. § 4.118, DC 7804 (prior to October 23, 2008). 7. The criteria for an initial disability rating in excess of 20 percent for paresthesia of the right lower extremity have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.6, 4.7, 4.124a, DC 8520 (2013). 8. The criteria for an initial disability rating in excess of 20 percent for paresthesia of the left lower extremity have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.6, 4.7, 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran contends that higher ratings are warranted for his service-connected disabilities. Thoracic Spine Disability under 38 U.S.C.A. § 1151 Pursuant to the rating criteria for the spine, the Veteran's thoracic spine disability under 38 U.S.C.A. § 1151 is rated at 10 percent disabling prior to January 28, 2009, at 40 percent disabling from January 28, 2009 to September 30, 2011, and at 20 percent disabling from October 1, 2011 to the present. 38 C.F.R. §§ 4.27 (explaining hyphenated diagnostic codes), 4.71a, DCs 5242-5243. DC 5242 provides for degenerative arthritis of the spine (see also DC 5003). See 38 C.F.R. § 4.71a, Note (6). Degenerative arthritis, established by x-ray findings, is rated according to limitation of motion for the joint or joints involved. See 38 C.F.R. § 4.71a, DC 5003. Where limitation of motion is noncompensable (0 percent), a compensable rating is assigned for each major joint (including the ankle and the knee) or group of minor joints affected by limitation of motion to be combined not added under DC 5003. The Veteran has been assigned a compensable rating based on limitation of motion for his thoracic spine disability under 38 U.S.C.A. § 1151 during each period on appeal. Therefore, consideration of whether a higher rating is warranted under DCs 5003-5242 for degenerative arthritis is not warranted for any period on appeal. Claims for intervertebral disc syndrome rated under DC 5243 are evaluated under either the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes or the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the rating criteria provides a 10 percent rating for incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted when the evidence shows 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 is provided when the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating, the maximum available, is warranted when the evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For VA purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; 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. 38 C.F.R. § 4.71a, DCs 5235-5242. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. Id. These ratings are made 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. Id. 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 is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). See also 38 C.F.R. § 4.71a, Plate V. Rating of 10 percent prior to January 28, 2009 The currently-assigned 10 percent disability rating prior to January 28, 2009 contemplates the Veteran's thoracic spine disability under 38 U.S.C.A. § 1151 manifestations of limited forward flexion, at worst, to 70 degrees, limited combined range of motion, at worst, to 150 degrees, and painful motion. On VA examination for the spine in May 2008, there were no complaints or objective findings of invertebral disc syndrome or a defined period of acute signs and symptoms if such syndrome that requires prescribed bed rest and treatment. Moreover, a November 2008 private treatment record documented magnetic resonance imaging (MRI) results of the thoracic spine revealed no acute interval findings including fracture or bony destructive change. As such, the pertinent evidence of record does not show the Veteran has intervetebral disc syndrome, or even incapacitating episodes as a result of such syndrome for a total duration of at least two weeks during a 12-month period to warrant an initial rating in excess of 10 percent prior to January 28, 2009 under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board also finds that a higher rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DCs 5235-5242. Specifically, the Veteran exhibited limited forward flexion of the thoracolumbar spine to 70 degrees and a limited combined range of motion to 150 degrees, as well as an antalgic and unsteady gait. Private treatment records also document the Veteran's diagnosis of lumbar spondylosis in September 2007 and October 2008, and his spastic gait in September 2007 and steady gait in December 2008. There were also no objective findings, or assertions by the Veteran of muscle spasm or guarding resulting from his thoracic spine disability. As such, the pertinent evidence of record does not show, forward flexion of the thoracolumbar spine less than 60 degrees, a combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or ankylosis of the entire thoracolumbar spine or the entire spine to warrant a rating in excess of the currently-assigned 10 percent rating prior to January 28, 2009 under DC 5242. Rating Reduction from 40 percent to 20 percent In a rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of a veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Id. The examination reports on which the reduction is based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). For disabilities that are likely to improve, that is, disabilities for which a rating has been in effect for less than five years, as in this case, re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344(c). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. In general, the RO's reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See id. The Veteran contends that the reduction of the thoracic spine disability under 38 U.S.C.A. § 1151 rating was improper and that the 40 percent evaluation should be restored as of October 1, 2011. In this case, the procedural requirements for rating reductions were met. The RO issued a rating decision in February 2011, which proposed the reduction in the disability rating for the Veteran's service-connected thoracic spine disability under 38 U.S.C.A. § 1151. The Veteran was advised of the proposed reduction in February 2011. In response, the Veteran did not submit evidence or argument; however, he participated in a personal hearing at the RO in May 2011. The RO issued a rating decision in July 2011, implementing the proposed reduction, effective October 1, 2011. The Veteran was notified of this reduction by letter dated in July 2011. Regulations provide that the effective date of the reduction is the last day of the month in which a 60-day period from notice of the reduction expires. See 38 C.F.R. § 3.105(e). Accordingly, making the reduction effective from October 1, 2011 was proper under the regulation. For ratings in effect for five years or more, there are additional requirements that must be met before VA can reduce a disability rating. See 38 C.F.R. § 3.344. The appropriate dates to be used for measuring the five-year time period, according to VA regulation, are the effective dates, i.e., the date that the disability rating subject to the reduction became effective is to be used as the beginning date and the date that the reduction was to become effective is to be used as the ending date. See Brown, 5 Vet. App. at 417-18. The Veteran was originally assigned the 40 percent disability rating for his thoracic spine disability under 38 U.S.C.A. § 1151 in a December 2009 SOC, and it was made effective on January 28, 2009. Therefore, when his rating was reduced effective on October 1, 2011, it had been in effect for less than five years, and the provisions of 38 C.F.R. § 3.344 do not apply. In this case, then, the RO applied the regulations regarding the procedure for reductions in ratings properly. The question that remains is whether the evidence on which the reduction was based supported the reduction. The Veteran was rated under DCs 5242-5243 prior to the decision reducing the rating. As a result of the December 2009 SOC, the Veteran had been receiving a 40 percent rating under the criteria of DC 5242-5243. The July 2011 rating decision implementing the reduction gives as its reason improvement in the service-connected disability, specifically an increase in forward flexion of the thoracolumbar spine, as noted on VA examination reports dated June 2009, July 2010, and July 2011. Where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). The Board agrees with the RO that there was improvement in the service-connected thoracic spine disability under 38 U.S.C.A. § 1151, and the 40 percent rating under DCs 5242-5243 should not have been continued. The RO reported, in pertinent part, that the Veteran exhibited limited forward flexion of the thoracolumbar spine to 40 degrees at the June 2009 and July 2010 VA examinations and to 55 degrees at the July 2011 VA examination. Such findings are compared with his documented limited forward flexion to 28 degrees pursuant to a private treatment session on January 28, 2009. The Board agrees with the RO's action in every regard. All due process requirements were met and the RO made appropriate findings of an improvement of the service-connected disability. The Board concludes that the reduction was appropriate. See 38 C.F.R. § 3.105(e). The Board notes that the matter of the reduction in the assigned disability rating for the Veteran's thoracic spine disability under 38 U.S.C.A. § 1151 does not necessarily include a claim for an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). Throughout the appeal, the Veteran has asserted entitlement to an increased evaluation. Accordingly, the issues of a higher rating in excess of 40 percent and in excess of 20 percent, for the respective appeal periods, are discussed below. See Percy v. Shinseki, 23 Vet. App. (2009) (by treating an issue as part of an appeal, VA waived any objections to the adequacy of the appeal with respect to that issue). Rating of 40 percent from January 28, 2009 to September 30, 2011 The currently-assigned 40 percent disability rating from January 28, 2009 to September 30, 2011 contemplates the Veteran's thoracic spine disability under 38 U.S.C.A. § 1151 manifestations of limited forward flexion, at worst, to 28 degrees, painful motion, tenderness, and muscle spasm. Pursuant to private treatment on January 28, 2009, the Veteran reported that on some days he is confined at home due to severe back pain. On VA examination for the spine in June 2009, the Veteran reported being able to walk about 200 yards before having to stop and rest, but has not been incapacated by the service-connected disability. He also reported flare ups of pain that lasts from minutes to hours and occur one to two times per week. At the July 2010 VA general medical examination, the Veteran reported flare-ups of pain that occur 1 to 3 days, lasting for about hours and causing a decrease in his ability to do any activity. The examiner noted the Veteran has had no history of specific incapacitation. A May 2011 private treatment record notes the Veteran's flare-ups of pain may last for 1 to 3 days and the pain worsens with activity, thus resulting in him lying down for most of the day. On VA examination for the spine in July 2011, the Veteran reported severe flare-ups on a weekly basis that last for 1 to 2 days causing difficulty with walking, standing, sitting, bending, twisting, listing, and carrying. While the Board acknowledges the Veteran's need to lie down due to pain from the service-connected disability, the evidence of record, nor does the Veteran indicate, he has intervetebral disc syndrome that requires bed rest prescribed and treated by a physician. As such, the pertinent evidence of record does not show the Veteran has incapacitating episodes due to intervertebral disc syndrome for a total duration of at least six weeks during a 12-month period to warrant the next-higher 60 percent rating for any period from January 28, 2009 to September 30, 2011 under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board also finds that a higher rating is not warranted under the General Rating Formula for Diseases and Injuries of the Spine. Specifically, the June 2009 and July 2010 VA examination reports document the Veteran exhibited forward flexion to 40 degrees. At the July 2011 VA examination for the spine, he demonstrated flexion to 55 degrees and the examiner noted no findings of thoracolumbar spine ankylosis. Private treatment records also document the Veteran displayed forward flexion to 28 degrees on January 28, 2009 and to 29 degrees in May 2011. As such, the pertinent evidence of record does not ankylosis of the entire thoracolumbar spine or the entire spine to warrant a rating in excess of the currently-assigned 40 percent rating from January 28, 2009 to September 30, 2011 under DC 5242. Rating of 20 percent from October 1, 2011 to the present The currently-assigned 20 percent disability rating from October 1, 2011 to the present contemplates the Veteran's thoracic spine disability under 38 U.S.C.A. § 1151 manifestations of limited forward flexion, last reported, to 55 degrees, limited combined range of motion, last reported, to 130 degrees; with no intervetebral disc syndrome based on incapacitating episodes or ankylosis. The Board notes there is no medical evidence of record pertaining to the thoracic spine, nor indications that this service-connected disability has worsened since the July 2011 VA examination, during this appeal period As such, the evidence of record does not show the Veteran has incapacitating episodes due to intervertebral disc syndrome for a total duration of at least four weeks during a 12-month period to warrant a higher rating for any period as of October 1, 2011 under the Formula for Rating Intervetebral Disc Syndrome Based on Incapacitating Episodes. A higher rating is also not warranted under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DCs 5235-5242. As of the last VA examination report in July 2011, the Veteran exhibited limited forward flexion to 55 degrees and limited combined range of motion to 130 degrees. As such, the evidence of record does not show intervetebral disc syndrome based on incapacitating episodes for a total duration of at least four weeks, forward flexion of the thoracolumbar spine to 30 degrees or less or ankylosis of the entire thoracolumbar spine or the entire spine to warrant a rating in excess of the currently-assigned 20 percent rating as of October 1, 2011. Additional Considerations for Each Initial Rating Period With respect to each initial rating period on appeal for the service-connected thoracic spine disability under 38 U.S.C.A. § 1151, a separate disability rating is not warranted for any period due to any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, DCs 5235-5243, Note (1). The May 2008 and July 2011 VA examination reports note the Veteran has had no bladder or bowel incontinence/impairment. The Veteran also denied any bowel or bladder dysfunction pursuant to September 2007, January 2009, and May 2011 private treatment sessions. Moreover, as discussed above, the Veteran is separately service-connected for paresthesias of the bilateral lower extremities secondary to the thoracici spine disability under 38 U.S.C.A. § 1151. The Board also considers whether the evidentiary record, to include the Veteran's reported symptomatology, demonstrates additional functional impairment beyond what is contemplated in the currently assigned disability ratings for any period. A September 2007 private treatment record shows the Veteran's complaints of pain and findings of lumbar tenderness to palpation. The May 2008 VA examination report notes objective findings of pain and tenderness. Nevertheless, the May 2008 VA examiner concluded the Veteran's limited range of motion findings were not additionally limited by pain, weakness, fatigue, or lack of endurance following repetitive testing or flare-up. The examiner also noted that, "in terms of activities of daily living, the Veteran has difficulty bathing, getting in and out of the tub, dressing, and sleeping." He does not do any yard work, vacuuming, and unable to play with his granddaughter. However, the Veteran does minimal housework, is able to cook for a short time, stand for four to five minutes, and drive for one to one and a half hours but has to change position. A January 28, 2009 private treatment record documents the Veteran's complaints of daily pain with difficulty walking for long and controlling his weight. The June 2009 VA examiner noted the Veteran is limited in activities requiring bending and lifting or any physical exertion, such as sports, recreation, and walking. His flare-ups are also significant enough that he would be able only to lay down or sit down and rest. Nonetheless, it was concluded the Veteran has normal strength, coordination, and endurance and no fatigability. The July 2010 VA examiner opined, with regard to the Veteran's functional assessment, that the thoracic spine disability makes it impossible for him to do his work, recreational activities, and markedly diminishes his usual daily activities. Repetitive activity produced pain, but no crepitation or change in the range of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. It was concluded the service-connected disability causes the Veteran a moderate degree of functional impairment and a moderate limitation of his ability to perform normal activities of daily living. Pursuant to private treatment in May 2011, the Veteran reported only able to ambulate for approximately 10 minutes and inability to bend, stoop, or crawl because of his pain. He is limited in performance of household chores, to include the inability to cook or vacuum and difficulty getting in and out of a tub, and is only able to stand for 5 minutes. There were also objective findings of tenderness and muscle spasm. The July 2011 VA examiner noted the Veteran's medical history of fatigue, decreased motion, stiffness, weakness, spasm, pain, guarding, pain with motion, and tenderness. However, clinical findings revealed no additional limitations after three repetitions of range of motion. The examiner also concluded the effects on usual daily activities limit the Veteran's ability to perform sports, exercise, chores, shopping, and travel. The Board finds that the Veteran's complaints of pain and symptomatology, as discussed above, to include tenderness, painful motion, muscle spasms, are adequately contemplated in the currently assigned disability ratings and the mere presence of pain does not by itself constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination, or endurance. See 38 C.F.R. § 4.40, 4.45, DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). As noted, the Veteran did not exhibit additional limitation of motion after repetitive use during the May 2008 VA examination and his activities of daily living are not impaired by the service-connected thoracic spine disability. For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding this service-connected disability for the rating periods on appeal, the Board finds that the evidence is against an initial rating in excess of 10 percent prior to January 28, 2009, in excess of 40 percent from January 28, 2009 to September 30, 2011, and in excess of 20 percent as of October 1, 2011 for thoracic spine disability under 38 U.S.C.A. § 1151. 38 C.F.R. §§ 4.3, 4.7. Tender Scar secondary to Thoracic Spine Disability under 38 U.S.C.A. § 1151 The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 30, 2002 (see 67 Fed. Reg. 49,490 (July 31, 2002)) and again in October 2008 (see 73 Fed. Reg. 54,708 (September 23, 2008)). The October 2008 revisions are applicable to claims for benefits received by the VA on or after October 23, 2008. Id. In this case, the Veteran filed his claim in August 2007. Therefore, only the post-2002 and pre-October 2008 version of the schedular criteria is applicable. Pursuant to the rating criteria for the skin, the Veteran's tender scar secondary to thoracic spine disability under 38 U.S.C.A. § 1151 is rated at 10 percent disabling under DC 7804. DC 7804 provides that a 10 percent rating is warranted for superficial scars that are painful on examination. See 38 C.F.R. § 4.118 (prior to October 2008). A superficial scar is one not associated with underlying soft tissue damage. Id. 10 percent is the maximum rating available under that DC. Since, the Veteran has been awarded the maximum rating available under DC 7804, the Board considers whether a rating in excess of 10 percent is warranted under any of the other diagnostic codes pertaining to a skin disability. Particularly, DCs 7800, 7801 and 7805 provide for disability ratings higher than 10 percent. DC 7800 provides higher ratings for scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. See 38 C.F.R. § 4.118 (prior to October 2008). DC 7801 provides that scars, other than of the head, face, or neck, that are deep or that cause limited motion warrant a 10 percent rating if they involve an area or areas exceeding 6 square inches (39 square centimeters), a 20 percent rating if the area or areas exceed 12 square inches (77 square centimeters), a 30 percent rating if the area or areas exceed 72 square inches (465 square centimeters), and a 40 percent rating if the area or areas exceed 144 square inches (929 square centimeters). Id. A deep scar is one associated with underlying soft tissue damage. Id. DC 7805 provides that scars may also be rated based on the limitation of function of the affected part. Id. The evidence of record does not support a rating in excess of the currently-assigned 10 percent rating under DCs 7800, 7801 or 7805. The Veteran's scar is located on the mid-posterior area of the thoracic spine. Moreover, the evidence does not show the Veteran's scar limits his motion, is a deep scar, or that the scar causes limitation of function. Specifically, June 2009 VA examination report for the spine characterizes the scar as 7.5 centimeters x 2 millimeters, superficial, and well healed. There were no indications of deep tissue involvement, inflammation, atrophy, or hypertrophy. The July 2010 VA general medical examination report also notes the scar measures 8.4 x 0.4 centimeters. It is minimally tender and there were no objective findings of underlying tissue loss or limitations of function. Private treatment records further characterize the scar, in September 2007 as a well-healed thoracic incision and in January 2009 as approximately 6 centimeters located at the mid-thoracic level. Most recently, a May 2011 record described the 6 centimeter vertical thoracic incision as tender to palpation. For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding this service-connected disability for the entire rating period, the Board finds that the evidence is against an initial disability rating in excess of 10 percent for tender scar under 38 U.S.C.A. § 1151 for any period. 38 C.F.R. §§ 4.3, 4.7. Paresthesia of the Bilateral Lower Extremities secondary to Thoracic Spine Disability under 38 U.S.C.A. § 1151 Pursuant to the rating criteria for diseases of the peripheral nerves, paralysis of the sciatic nerve, the Veteran's paresthesia of the bilateral lower extremities are rated at 20 percent disabling, each, for the entire initial rating period on appeal. See 38 C.F.R. § 4.124a, DC 8520 (2013). Complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. Severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Id. With regard to diseases of the peripheral nerves, the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral, the VA adjudicator is to combine with application of the bilateral factor. Id. The rating schedule does not define the terms "mild," "moderate," or "severe" as used in these diagnostic codes to describe the degree of deformity of the upper and lower extremities. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." See 38 C.F.R. § 4.6. Pursuant to private treatment sessions, a September 2007 record reports straight-leg-testing was negative, motor examination was normal, deep tendon reflexes testing showed hyperactivity, plantar responses were equivocal, and there was diminished pinprick distally on the lower extremities. January 2009 objective findings of the lower extremities documented deep tendon reflexes reveals brisk bilaterally at the knees and 1+ at the ankles, and normal motor function with the exception of 4/5 strength in the extensor hallucis longus. On VA examination in June 2009 for the spine, the Veteran complained of pain in his feet and legs. On physical examination, he exhibited pain, normal strength in the lower extremities, some difficulty with a heel and toe walk due to pain, and reduced sensation over the lateral calves and dorsal feet but otherwise intact. In addition, his knee and ankle reflexes were 2+ and equal bilaterally. In July 2010, the Veteran underwent a VA general medical examination. He complained of pain in the back of his legs with general weakness and numbness in the feet. Clinical findings revealed deep tendon reflexes and sensorium were markedly diminished bilaterally. A May 2011 private evaluation report noted the Veteran exhibited decreased pinprick appreciation of both lower extremities, but position sense and vibration sense were intact bilaterally. In addition, deep tendon reflexes were 2+ bilaterally, except for ankle jerks that were only trace bilaterally. It was concluded that the Veteran continues to complain of pain in the bilateral lower extremities which causes moderate impairment. Most recently, on VA examination for the spine in July 2011, the Veteran exhibited hypoactive bilateral peripheral nerve reflexes of the knees and ankles. There were objective findings of active movement against full resistance for bilateral knee and ankle flexion and extension. Muscle tone was normal and there were no findings of any muscle atrophy. As of this date, there are no other private or VA outpatient treatment records, or indication of such existence, since the July 2011 VA examination that indicate the Veteran's paresthesia of the bilateral lower extremities have worsened in severity. Simply stated, the Board finds that the service-connected paresthesia of the bilateral lower extremities more closely approximate manifestations of moderate severe incomplete paralysis, as shown by the findings noted above, to include pain, normal muscle tone, and no muscle atrophy or moderately severe impairment with reflexes. Moreover, the lay and medical evidence of record demonstrate the Veteran still has active movement of the bilateral lower extremities. As discussed above, the Veteran exhibited movement of his lower extremities at VA examinations and pursuant to private and VA outpatient treatment during the course of this appeal. For these reasons and bases discussed above, and after fully considering all the lay and medical evidence regarding these service-connected disabilities for the entire rating period, the Board finds that the evidence is against an initial disability rating in excess of 20 percent for paresthesia of the bilateral lower extremities for any period. 38 C.F.R. §§ 4.3, 4.7. Additional Considerations With respect to all of the service-connected disabilities on appeal discussed above, the Board considers all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes, and consideration of the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign higher ratings for these disabilities on appeal at any time during the initial rating periods. The Board has considered the Veteran's reported history of symptomatology regarding the service-connected disabilities on appeal. The Board acknowledges he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses; nonetheless, he is not competent to identify a specific level of the service-connected disabilities on appeal according to the appropriate diagnostic codes. In this case, such competent evidence concerning the nature and extent of the service-connected disabilities on appeal has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints and symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2013); Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims has held that VA's disability-by-disability interpretation of 38 C.F.R. 3.321(b)(1) is not unreasonable, plainly erroneous, or inconsistent with the regulation or the statutory and regulatory scheme when viewed as a whole, thus the Board was not required to consider whether a veteran's was entitled to referral for extra-schedular consideration of the service-connected disabilities on a collective basis. See Johnson v. Shinseki, 26 Vet. App. 237, 239-40 (2013). With regard to the service-connected thoracic spine disability under 38 U.S.C.A. § 1151 for the respective appeal periods discussed above, the Board acknowledges that at the May 2008 VA examination for the spine, the Veteran reported having difficulty bathing, getting in and out of the tub, dressing, and sleeping. Thus, the Board finds that the schedular rating criteria does not adequately contemplate and describe the symptoms and impairment caused by the service-connected thoracic spine disability. Symptoms, such as those reported by the Veteran at the May 2008 VA examination, are not contemplated under DCs 5242 and 5243. After turning to the second step of the inquiry, the evidence of record as discussed above does not suggest the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment prior to January 28, 2009 and frequent periods of hospitalization due to the service-connected thoracic spine disability. With regard to the service-connected tender scar secondary to thoracic spine disability under 38 U.S.C.A. § 1151, the schedular rating criteria adequately contemplate the symptoms and impairment caused by this service-connected disability. The schedular rating criteria specifically provide for ratings based on his reported symptomatology, to include pain. See 38 C.F.R. § 4.118, DC 7804. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. With regard to the service-connected paresthesia of the bilateral lower extremities, the schedular rating criteria adequately contemplate the symptoms and impairment caused by these service-connected disabilities. The schedular rating criteria specifically provide for ratings based on his reported symptomatology, to include moderate incomplete paralysis, pain, numbness, and weakness. See 38 C.F.R. § 4.124a, DC 8520. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected disabilities on appeal discussed above is not required. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify has been satisfied by September 2007 and September 2008 letters. Regarding the duty to assist, the evidence of record includes VA outpatient treatment records, private treatment records, Social Security Administration (SSA) records, and May 2008, June 2009, July 2010, and July 2011 VA examination reports. There are no apparent inconsistencies or ambiguities in the VA examination reports, neither has the Veteran or his attorney challenged the adequacy or thoroughness of the reports or the competency of the examiners. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). The Veteran's most recent VA examination was approximately two years ago; however, an additional VA examination is not warranted in this case because the evidence of record does not indicate that the Veteran's service-connected disabilities have become more severe since the July 2011 VA examination. The Board finds no further assistance to the Veteran with the development of evidence is required. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An initial rating in excess of 10 percent prior to January 28, 2009 for thoracic spine disability under 38 U.S.C.A. § 1151 is denied. Restoration of the 40 percent rating for thoracic spine disability under 38 U.S.C.A. § 1151, effective October 1, 2011, is denied. An initial rating in excess of 40 percent from January 28, 2009 to September 30, 2011 for thoracic spine disability under 38 U.S.C.A. § 1151 is denied. An initial rating in excess of 20 percent as of October 1, 2011 for thoracic spine disability under 38 U.S.C.A. § 1151 is denied. An initial rating in excess of 10 percent for tender scar secondary to thoracic spine disability under 38 U.S.C.A. § 1151 is denied. An initial rating in excess of 20 percent for paresthesia of the right lower extremity is denied. An initial rating in excess of 20 percent for paresthesia of the left lower extremity is denied. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issue of a TDIU prior to January 28, 2009. The Veteran does not meet the objective, minimum, percentage requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis prior to January 28, 2009. Nonetheless, there is evidence of record prior to January 28, 2009 that suggests he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Therefore, the Board finds that the issue of entitlement to TDIU prior to January 28, 2009 on an extra-schedular basis should be referred to the Director of the Compensation and Pension Service for the appropriate development. See 38 C.F.R. § 4.16(b) (2013); Barringer v. Peake, 22 Vet. App. 242 (2008); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, this matter is REMANDED for the following actions: 1. Refer the Veteran's claim for TDIU prior to January 28, 2009 to the Director of Compensation and Pension Service for consideration of the assignment of an extra-schedular rating. 38 C.F.R. § 4.16(b) (2013). 2. Thereafter, readjudicate the issue of a TDIU prior to January 28, 2009 on an extra-schedular basis. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs