Citation Nr: 1343075 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 07-24 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating higher than 10 percent from September 16, 2003, to June 26, 2011, for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an initial rating higher than 20 percent for this low back disability since June 27, 2011. (The additional issue of whether there was clear and unmistakable error (CUE) in an April 4, 2011, decision of the Board of Veterans' Appeals denying service connection for asthma is being addressed in a separate decision of the Board, issued concurrently with this decision). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to November 1975. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for DDD of the lumbar spine (so for a low back disability) and assigned an initial 10 percent rating retroactively effective from September 16, 2003. The Veteran appealed for a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran appeals an initial rating, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). In April 2011, the Board remanded this claim to the RO via the Appeals Management Center (AMC) for further development and consideration, including provision of a VA compensation examination reassessing the severity of this disability. The Veteran had this additional VA compensation examination on June 27, 2011, and after considering the results of it and other additional evidence, the AMC issued a decision in September 2011 increasing the rating for the low back disability from 10 to 20 percent as of June 27, 2011, so as of the date of that VA compensation examination on remand. Therefore, that amounted to a "staging" of the rating for this disability. The Veteran since has continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). So his appeal now concerns whether he was entitled to an initial rating higher than 10 percent for this low back disability during the immediately preceding period from September 16, 2003, to June 26, 2011, and whether he has been entitled to a rating higher than 20 percent for this disability since June 27, 2011. Because, however, the Board's April 2011 remand directives were not completed, the Board remanded the claim again in January 2012 so that additional treatment records could be obtained and considered. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Those additional records did not prompt any additional development on the part of the AMC, which following the most recent remand continued to deny a rating higher than 10 percent for the initial period prior to June 27, 2011, or higher than 20 percent for the period since. This claim resultantly has returned to the Board for further appellate consideration. The issue of entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to the medication - namely, non-steroidal anti-inflammatory drugs (NSAIDS) - taken for treatment of the service-connected low back disability has been raised by arguments in the representative's most recent November 2013 Written Brief Presentation. This additional claim, however, has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction to consider it at the present time, so is referring this additional claim to the RO for appropriate action. FINDINGS OF FACT 1. For the initial period at issue from September 16, 2003, to June 26, 2011, the Veteran's low back disability was manifested by limited forward flexion of the thoracolumbar spine to 60 degrees. 2. For the immediately ensuing period that also is at issue from June 27, 2011, onwards, his low back disability has been manifested by limited forward flexion of the thoracolumbar spine to 50 degrees, with mild associated neurologic symptoms affecting his reflexes and active movement of his lower extremities. CONCLUSIONS OF LAW 1. The criteria are met for an initial rating of 20 percent, but no higher, for the entire period under consideration, that is, from September 16, 2003, onwards, for the Veteran's low back disability. 38 U.S.C.A. §§ 1155 (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 (DC) 5243 (2013); 38 C.F.R. § 4.71a, DCs 5292, 5293 (2003). 2. The criteria also are met for a separate 10 percent disability rating for associated symptoms tantamount to mild incomplete paralysis of the sciatic nerve for the period from June 27, 2011, onwards. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2013). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, notice under section 5103(a) is no longer required because the purpose that the notice was intended to serve has been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). Thus, here, because service connection was granted, VA's notice obligation concerning these claims has been met. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where the underlying claim for service connection has been substantiated, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any "downstream" elements of the claim, notably, as concerning the disability rating and effective date assigned). In any event, the RO provided the Veteran with the notice required under the VCAA and Dingess via letters mailed in October 2003, March 2006, and April 2006, prior to the June 2006 grant of his service-connection claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). He has not alleged any prejudicial error regarding the notice received. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA also enhanced VA's duty to assist the Veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty has been met, as well. His VA treatment records have been obtained and associated with the file for consideration, including following and as a result of the Board remanding the claim. He also has been provided two VA compensation examinations, and the reports of these examinations contain the findings needed to address the applicable rating criteria. Hence, these examinations are adequate for rating purposes such that he does not need to be reexamined. 38 C.F.R. §§ 3.327(a), 4.2. The Veteran has alleged that the June 2011 VA examination is inadequate because the examiner did not address whether the Veteran had functional limitations due to pain, fatigability, incoordination, and weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995). On the contrary, the examination did address this issue. It was noted he had fatigue, stiffness, weakness, and decreased motion, and his range of motion was measured both before and after repetitions to observe whether he had additional loss after prolonged use. He also has alleged that the July 2012 addendum does not address the rating criteria. That addendum was written in terms that would address the rating criteria that were in place in 2002, but which had been amended by the time he filed his claim in 2003. Thus, the examiner's opinion that the Veteran's disability is "moderate" is not entirely applicable here, although the examiner's opinion of the severity of the disability is relevant to the overall inquiry addressed in this decision. In any event, the Board finds the June 2011 VA examination report to be complete and adequate for rating purposes because it nonetheless contains the required information. Indeed, the reasons the Board previously remanded this claim in April 2011 and January 2012 was to obtain all outstanding VA treatment records, and to have the Veteran reexamined to reassess the severity of his low back disability. All additional records that are relevant to the claim, but not on file, were obtained on remand, and as mentioned he was provided the necessary VA compensation examination reassessing the severity of his low back disability. Thus, there was compliance with the Board's April 2011 and January 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Updated VA treatment records were inserted into the Veteran's file on the "Virtual VA" paperless claims processing system in October 2013, after certification of the claim to the Board. Ordinarily, he would be given the option of waiving initial review of these records by the RO. 38 C.F.R. §§ 19.37, 20.1304 (2013). However, the Board has reviewed the records and, except for reiterating that his low back disability is painful, which the existing evidence of record already makes clear, there is no new or relevant information contained in these additional records. Therefore, a waiver of the RO's jurisdiction is not required. Accordingly, the Board is proceeding to addressing this claim on its merits. Increased Ratings Since the Veteran's claim for increased disability ratings for his low back disability arises from his disagreement with the initial rating assigned after service connection was granted, the Board finds that some further discussion of the Fenderson case is warranted. In Fenderson v. West, 12 Vet. App. 119, 125-126 (1999), the Court noted the distinction between a new claim for an increased evaluation of a service-connected disability and a case in which the Veteran expressed dissatisfaction with the assignment of an initial disability evaluation where the disability in question had just been service connected. In the former situation, the Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that the current level of disability is of primary importance. In the Fenderson scenario, however, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim - a practice known as "staged" rating. Fenderson, 12 Vet. App. 125-126. Regardless, the Court also has extended this practice even to increased-rating claims that do not involve initial ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2013). When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition, else, this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The assignment of a particular DC is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board accordingly will consider whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). When evaluating musculoskeletal disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (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.; see 38 C.F.R. § 4.40. The Veteran's lay statements and testimony are considered competent evidence when describing his symptoms of disease or disability that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). But his lay statements and testimony regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements and testimony concerning this are consistent with this other evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See, too, 38 C.F.R. § 3.159(a)(2). The regulations for evaluating spinal disabilities initially were revised effective September 23, 2002, as set forth in the July 1, 2003 edition of Title 38 of the Code of Federal Regulations (CFR). These regulations were in effect when the Veteran initially filed his claim to service connect his low back disability on September 16, 2003. See 67 Fed. Reg. 54345 (August 22, 2002). Additional revisions were made to the evaluation criteria as of September 26, 2003 - so, ten days following the filing of his service-connection claim - for purposes of updating the rating schedule with current medical terminology and unambiguous criteria to reflect medical advances since last reviewed. This included renumbering the DCs; the former DC 5293, as an example, is now DC 5243. The rating criteria for spinal disabilities have not been substantively changed since the September 26, 2003, amendments. Service connection for DDD was granted in June 2006, and an initial evaluation of 10 percent was assigned under DC 5242, retroactively effective from September 16, 2003, the date of receipt of the Veteran's underlying claim of entitlement to service connection for this disability. DC 5242 was created after the September 26, 2003, amendments. From September 16 to September 26, 2003, the Veteran's DDD was rated using the criteria found in the 2002 version of DC 5293, pertaining to intervertebral disc syndrome (IVDS). In other words, outdated rating criteria were used for that brief period prior to the September 26, 2003, amendments. From September 26, 2003, to June 26, 2011, his 10 percent rating was under the current DC 5242. In September 2011, the AMC granted a higher disability rating of 20 percent under previous DC 5293 for the period from June 27, 2011, onwards. Because his claim was filed on September 16, 2003, the Board will consider application of the regulations in effect at that time as well as the amended regulations (i.e., the 2003 and current editions of the CFR), and will apply the regulation that is most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, application of the amended regulations can be no earlier than their effective date of September 26, 2003. See 38 U.S.C.A. § 5110(g) (West 2002 & Supp. 2012); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000 (Apr. 10, 2000); and VAOPGCPREC 7-2003 (Nov. 19, 2003). Under the 2003 regulations, the Veteran's DDD could be rated as limitation of motion of the lumbar spine (DC 5292) or as IVDS (DC 5293). Under the previous DC 5292, a 10 percent rating is warranted for "slight" limitation of motion, a 20 percent rating is warranted for "moderate" limitation of motion, and a 40 percent rating is warranted for "severe" limitation of motion. A rating higher than 40 percent can be obtained upon a showing of ankylosis or disabling residuals of a fractured vertebra. See 38 C.F.R. § 4.71a (2003). Under the previous DC 5293, symptoms are rated based on either the duration of incapacitating episodes over a 12-month period, or by rating the orthopedic and neurologic manifestations separately, and then combining them pursuant to 38 C.F.R. § 4.25. In regard to incapacitating episodes, a 10 percent rating is warranted for episodes having a total duration of at least one week but less than two weeks. A 20 percent rating is warranted for episodes having a total duration of at least two weeks, but less than four weeks. A 40 percent rating is warranted for episodes having a total duration of at least four weeks, but less than six weeks. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks. Id. Under the current regulations, which have not been amended since the September 26, 2003, amendments, the Veteran's DDD is rated under DC 5243, which applies to IVDS. IVDS is rated either under the General Rating Formula for Diseases and Injuries of the Spine, which takes into account limitation of motion, and which requires that neurologic abnormalities be rated separately, or based upon the duration of incapacitating episodes, whichever results in a higher evaluation. Under the General Rating Formula, a 10 percent rating is warranted for limited forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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 warranted for limited forward flexion of the thoracolumbar spine great than 30 degrees but not greater than 60 degrees; or, a 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 rating is warranted for limited forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a (2013). Incapacitating episodes are rated as in the previous DC 5293, discussed above. In regards to neurologic manifestations, DC 8520 pertains to the sciatic nerve. Under DC 8520, complete paralysis, where the foot dangles and drops, there is no active movement possible in the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating. Incomplete paralysis warrants a 60 percent rating when the symptoms are severe with marked muscular atrophy; a 40 percent rating when the symptoms are moderately severe; a 20 percent rating when the symptoms are moderate; and, a 10 percent rating when the symptoms are mild. See 38 C.F.R. § 4.124a , DC 8520 (2013). These same regulations have been in place since the Veteran filed his claim. Turning to the facts, at a December 2004 physical therapy consultation, the Veteran complained of low back pain that gets worse with prolonged standing and walking, and also increases throughout the day. He did not indicate that there were any activities that he was unable to do because of the pain, and he was able to lift up to 65 pounds without problems. He was able to perform all activities of daily living. He had excellent posture and a non-antalgic gait. His lumbar spine showed limited range of motion, with flexion to 60 degrees, extension to 20 degrees, and right and left lateral flexion and rotation to 15 degrees. In January 2005, an MRI showed mild multi-level osteoarthritis in his back. In August 2005, the Veteran complained that his low back pain was increasing. He denied numbness or tingling. In March 2006, the Veteran complained his low back pain was increasing. He said it did not prevent him from sleeping, but it increased while walking or when standing from a seated position. He said the pain occasionally shoots into his left leg. He was advised to avoid heavy lifting and carrying. During the May 2006 VA examination, the Veteran denied urinary or fecal incontinence, erectile dysfunction, leg or foot weakness, and paresthesias. He said that he had numbness weekly. He denied flare ups, and said his pain was mild but occurred daily. His gait and posture were normal. He did not have ankylosis or abnormal curvature. There was no objective evidence of sacrospinalis. Active range of motion tests of the thoraco-lumbar spine showed flexion from 0 to 70 degrees, with pain starting at 60 degrees. He was able to extend from 0 to 30 degrees. Left and right lateral flexion and rotation were all from 0 to 30 degrees. Passive range of motion tests showed flexion from 0 to 80 degrees, with pain starting at 60 degrees. There was not additional limited motion on repetitive use due to pain, fatigue, weakness, or lack of endurance. Hip, ankle, and great toe of the right and left all had active movement against full resistance. Sensory and reflex examinations of the lower extremities were all normal. The examiner opined that the Veteran's low back disability would have a significant impact on occupational activities, as he would have difficulty lifting and carrying, and he has continuous pain. He was diagnosed with lumbago. In August 2006, the Veteran's pain was described as dull and constant, which increased with physical activity. It radiated to the middle of his thighs. He complained that pain interfered with all activity in general, and especially walking and sleeping. In a July 2007 statement, the Veteran said his back causes him constant and continuous pain. He was being treated at the VAMC pain clinic. In October 2007, the Veteran was diagnosed with lumbar facet arthropathy. His pain was not radiating. He was given facet joint injections to address his low back pain. After the procedure, it was noted that a medial branch block (MBB) or radiofrequency nerve ablation (RFA) may provide better results. In December 2007, the Veteran underwent a lumbar MBB. He reported that the procedure immediately reduced his pain, and that it was still controlled in January 2008. However, he requested that an RFA be scheduled. In December 2008, the Veteran denied radicular symptoms. In April 2009, the Veteran underwent an RFA to address his low back pain. He complained that his low back pain was throbbing and sometimes radiated down his left leg. In June 2009, the Veteran reported that the RFA reduced his pain by half. He said that he thought he could perform his job, driving a shuttle bus, without difficulties because of the RFA. Pain was rated at 3 out of 10, and was not radiating. He also denied weakness or numbness in his lower extremities. In October 2009, it was noted that his back pain continued to be significantly improved by the RFA the previous April. He denied radiating pain, numbness or weakness in his lower extremities, or backward bending problems. In January 2010, the Veteran complained of aching pain in the lumbar/sacral region that occasionally radiated down to his left knee. He said this usually occurs after driving the shuttle bus all day and then resuming activity. He rated the pain at 5 or 6 out of 10, and said that it improves if he is leaning back and increases if leaning forward. During a February 2010 pain consultation, the Veteran said that his pain is positional, and that it becomes very painful when he moves the wrong way. Otherwise, he said that it is a dull ache. He denied having radicular pain. In June 2010, the Veteran underwent another RFA. Prior to the procedure, he rated his pain as usually 3 out of 10, and 6 out of 10 at its worst. He said that the pain radiated to his legs rarely. He said that his low back is most painful after work. During the June 2011 VA examination, the Veteran rated his pain 6 out of 10. He was using a cane. He denied a history of incontinency, erectile dysfunction, numbness, paresthesias, leg or foot weakness, or falls, but reported unsteadiness, fatigue, decreased motion, stiffness, weakness, and pain. His pain was moderate and constant. He did not have any incapacitating episodes, however, he missed two-weeks of work due to back pain. He was unable to walk more than a few yards. He did not have ankylosis. He was able to flex to 50 degrees, and extend to 10 degrees. His left and right lateral flexion and rotation were all from 0 to 10 degrees. There was objective evidence of pain during range of motion testing, but there was no additional limitation of motion after three repetitions. Reflex studies showed hypoactive knee and ankle jerk of both lower extremities. Sensory examinations were normal. Detailed motor examination showed active movement against only some resistance. Functionally, his low back disability would cause decreased mobility, problems with lifting and carrying, and difficulty reaching. He was diagnosed with degenerative joint disease. In September 2011, the Veteran underwent another RFA to address his low back pain. Prior to the procedure, he described his pain as sharp and constant. It increased with climbing the stairs, twisting, or prolonged sitting. It occasionally radiated to his left lower extremity, causing numbness. He denied having weakness, or bowel or bladder incontinence. A July 2012 addendum to the June 2011 VA examination indicated the severity of the Veteran's condition was moderate. Based on this collective body of evidence, the Board finds that the Veteran's rating for the period from September 16, 2003, to June 26, 2011, should be raised to 20 percent. In December 2004, he was unable to forwardly flex beyond 60 degrees. This corresponds to "moderate" limitation of motion under now outdated DC 5292, which warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5292 (2003). Under the current rating criteria, limitation of forward flexion to 60 degrees also warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5243 (2013). He was able to flex further than 60 degrees at the May 2006 VA examination; however, pain began at 60 degrees, and he was only able to move forward an additional ten degrees. The Veteran occasionally complained of pain radiating from his back into his legs. He denied it as frequently as he endorsed it, and this inconsistency, along with a lack of objective evidence of neurologic abnormalities shown until the June 2011 VA examination, leads the Board to conclude that application of DC 8520 is not warranted for this period. Thus, as he has been found to be entitled to a 20 percent rating for the initial period, the next inquiry is whether he is entitled to a rating higher than 20 percent at any time under consideration. At the June 2011 VA examination, the Veteran's forward flexion was limited to 50 degrees, which again corresponds to "moderate" limitation under the previous DC 5292, warranting 20 percent. 38 C.F.R. § 4.71a, DC 5292 (2003). A 20 percent rating is also warranted for that level of limited motion under the current regulations. 38 C.F.R. § 4.71a, DC 5243 (2013). During the examination, however, he showed objective evidence of neurologic abnormalities, in that his ankle and knee jerk were both hypoactive, and detailed motor examinations showed active movement against only some resistance, rather than full resistance. These tests objectively show neurologic manifestations, which the Board finds correspond to "mild" impairment, warranting a separate 10 percent rating. 38 C.F.R. § 4.124a, DC 8520 (2013). A higher rating is not warranted as the evidence does not show the Veteran's low back to be ankylosed, or that his forward flexion is limited to 30 degrees or less, or that he has had incapacitating episodes totaling at least 4 weeks during a 12-month period. His neurologic manifestations are mild, in that his reflexes are still present, and he can still exhibit active movement against some resistance. The Board acknowledges the Veteran's complaints of near-constant pain, and they were taken into consideration in assigning 20 percent for the initial period under consideration. At the May 2006 VA examination, his pain began at 60 degrees, but he was able to actually flex to 70 degrees, which corresponds to a 10 percent rating. His pain was also considered for the period after June 27, 2011, however, even with pain, he was able to flex to 50 degrees. This is 20 degrees further than what is required for the next higher rating of 40 percent. In consideration of painful motion under 38 C.F.R. § 4.59, as well as in application of 38 C.F.R. § 4.7, the Board finds that his disability picture, in regards to orthopedic manifestations, more closely approximates a 20 percent rating - albeit at all times since filing his claim of entitlement to service connection on September 16, 2003, so not just instead since his VA compensation on June 27, 2011, during the pendency of this appeal. The Board acknowledges the Veteran has been diagnosed with arthritis of the lumbar spine, which would be analyzed under DC 5003 (arthritis, degenerative). Under DC 5003, an arthritic joint is rated under the codes applicable to limitation of motion. Thus, his rating would not be any higher if this code was applied rather than the DCs pertaining to DDD. He cannot be rated for both arthritis and DDD at the same time, as this would be compensating him twice for the same symptoms, which is prohibited pyramiding. 38 C.F.R. § 4.14 (2013). Total Disability Rating due to Individual Unemployability (TDIU) In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered "part and parcel" of the claim for benefits for the underlying disability. In this particular case at hand, the Veteran has not asserted that his low back disability causes him to be unemployable, nor is this otherwise indicated or suggested by the evidence. In fact, by all accounts, he is currently employed full time by VA as a shuttle bus driver. Therefore, the Board finds that a claim for a TDIU is not raised by him or reasonably raised by the record and, as such, need not be further addressed. Extra-schedular Consideration Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of Compensation and Pension Service is authorized to approve an extra-schedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that referral for extra-schedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., chronic pain, limited motion, and mild neurologic abnormalities) are contemplated by the rating criteria. He has complained that his low back disability interferes with activity in general, and that his pain increases after sitting for a prolonged period. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. There are no symptoms left uncompensated or unaccounted for in his assigned schedular rating. The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extra-schedular consideration. Id. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See id. Further, the evidence does not show marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115 (2008). He has had a number of procedures on his back, but there is no indication that these required extended stays in the hospital once completed. And, while the evidence does show he missed about 2 weeks of work in the preceding 12 months, the rating criteria contemplates incapacitating episodes up to 6 weeks. Accordingly, the Board finds the schedular rating criteria adequately address his disability, and referral for extra-schedular consideration is unwarranted. ORDER An higher initial 20 percent disability rating is granted for the DDD for the period from September 16, 2003, to June 26, 2011 (so not just since June 27, 2011), subject to the statutes and regulations governing the payment of VA compensation. However, a rating higher than 20 percent for this low back disability - either prior to or since June 27, 2011 - is denied. But a separate initial disability rating of 10 percent under DC 8520 is additionally granted for the associated neurologic manifestations, for the period from June 27, 2011, onwards, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs