Citation Nr: 1506198 Decision Date: 02/10/15 Archive Date: 02/18/15 DOCKET NO. 10-41 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to restoration of a 60 percent rating for a lumbar spine disability. 2. Whether the discontinuance of the total disability rating due to individual unemployability (TDIU) effective August 1, 2009, was proper. 3. Whether the discontinuance of Dependents Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, effective August 1, 2009, was proper. 4. Entitlement to a rating in excess of 60 percent for a lumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from August 1972 to August 1992. This matter comes before the Board of Veterans Appeals' (Board) on appeal from a May 2009 rating decision issued by the Regional Office (RO) in St. Petersburg, Florida. In March 2013, the Board remanded the claims for further development. FINDINGS OF FACT 1. A May 2008 rating decision proposed to reduce the evaluation assigned for the service-connected lumbar spine disability from 60 to 10 percent disabling and discontinue the award of TDIU and eligibility for DEA benefits. 2. A May 2009 rating decision reduced the evaluation assigned for the service-connected lumbar spine disability to 40 percent disabling and discontinued the award of TDIU and eligibility for DEA benefits; the reduction and discontinuances were effective August 1, 2009. 3. At the time of the reduction, the 60 percent rating had been in effect for more than five years and the evidence failed to show a material improvement in the service-connected lumbar spine disability. 4. There was no clear and convincing evidence of actual employability at the time the Veteran's TDIU was terminated. 5. The Veteran is totally and permanently disabled. 6. The Veteran's lumbar spine disability has not manifest in ankylosis of the entire spine. CONCLUSIONS OF LAW 1. The criteria for restoration of a 60 percent rating for the lumbar spine disability are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5293 (2002). 2. The criteria for restoration of a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105(e), 3.343, 4.16 (2014). 3. The criteria for restoration of DEA benefits have been met. 38 U.S.C.A. §§ 3501, 3512 (West 2014); 38 C.F.R. §§ 21.3021, 21.3040, 21.3041 (2014). 4. A rating in excess of 60 percent for the lumbar spine disability is not warranted. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.2, 4.40, 4.45, 4.59, 4.7, 4.71(a), Diagnostic Code 5243 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, including Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this decision, the Board restores the Veteran's 60 percent evaluation for service connected lumbar spine disability, as well as entitlement to TDIU and DEA benefits; which represents a grant of these issues. As such, no further notice or assistance is required to assist the Veteran in substantiating these claims. With respect to his increased rating claim, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in March 2008, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim for an increased rating. With respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating and notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in March 2008. Therefore, no further notice is needed under VCAA. VA also has a duty to assist a veteran in the development of a claim. That duty includes assisting a claimant in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. After a careful review of the file, the Board finds that all necessary development has been accomplished, and that appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO obtained the Veteran's VA treatment records. The Veteran also submitted personal statements in support of his appeal. VA medical examinations pertinent to the issue on appeal were also obtained in March 2008 and May 2009. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. The Board notes that the Veteran's last examination is now well over a year old; however, the mere passage of time since that examination is not reason enough, alone, to require reexamination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's lumbar spine disability since the most recent examinations. The Veteran has not argued the contrary. In March 2013, the Board remanded the claims to obtain treatment records since September 2010, including any report of a functional capacity examination. In September 2013 correspondence, VA requested that the Veteran provide the names, addresses, and approximate dates of treatment for all medical care providers VA and non-VA who have provided treatment for his lumbar spine disability since September 2010, to specifically include any report of VA functional capacity examination. VA treatment records since September 2010 have been obtained and associated with the Veteran's paperless claims file. In October 2013 and March 2014 statements, the Veteran, himself, reported that he did not undergo a functional capacity examination, but rather that he would only undergo this type of examination if an agency or lawyer requested such an examination. Therefore, further attempts to obtain such records would be futile. More recent VA treatment records were obtained on remand. Accordingly, the Board finds that VA substantially complied with the Board's Remand directives in further developing the Veteran's claim. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Propriety of the Reduction A. Lumbar Spine Rating Reduction By way of background, a November 1992 rating decision granted service connection for the Veteran's lumbar spine disability and assigned a 20 percent disability rating, effective September 1, 1992 under Diagnostic Codes 5293-5292. A December 1994 rating decision increased the evaluation to 40 percent disabling, effective September 13, 1994. On November 1994 VA examination of the spine, sensory examination revealed mild diminished pinprick in the left L5 distribution. His gait was antalgic. He had decreased lumbar lordosis, mild para lumbar spinal muscle spasm, and markedly diminished range of motion with approximately 10 degrees of forward flexion, 5 degrees of backward extension, and 5 degrees of lateral bending, bilaterally. A May 1995 Hearing Officer's Decision, implemented by a June 1995 rating decision, increased the evaluation to 60 percent disabling, effective September 13, 1994. The Hearing Officer noted the findings of the November 1994 VA examination and reported that medical evidence presented at the Veteran's August 1994 hearing revealed physical limitations such as: no bending, no stooping, no pulling, no pushing, and no lifting over 20 pounds. On February 1995 VA examination, he had severely diminished range of motion and lumbar stenosis. The Veteran's spouse testified that he had persistent symptoms of radiating pain and back pain with little intermittent relief. Based on these findings, the June 1994 rating decision assigned a 60 percent evaluation due to intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, characteristic pain, and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc and little intermittent relief. Subsequent rating decisions in June 2002 and September 2005 continued to rate the Veteran's lumbar spine disability as 60 percent disabling. The Board notes that the criteria for evaluating intervertebral disc syndrome were revised in September 2002 and September 2003, prior to the reduction of evaluation here on appeal. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). These amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of a regulatory change. See VAOPGCPREC 3-2000 (Apr. 10, 2000). Thus, it was incumbent on the RO to consider both the old and the revised criteria, and to use the criteria that resulted in the most favorable outcome. Although the 60 percent rating was the highest rating allowed under either set of criteria for intervertebral disc syndrome, the old criteria for Diagnostic Code 5293 were used in assigning that evaluation. A readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved. 38 C.F.R. § 3.951(a). Thus, the Veteran's rating cannot be reduced solely on the basis of changed rating criteria. As a result of the Veteran's claim that his low back disability increased in severity, he was afforded a VA examination in March 2008. A May 2008 rating decision proposed to reduce to reduce the Veteran's disability rating for lumbar spine disability from 60 percent to 10 percent based on the findings of the March 2008 VA examination. The Veteran was notified of the decision in June 2008. The Veteran subsequently disagreed with the May 2008 proposal. The Veteran was afforded another VA examination in May 2009. Afterwards, a May 2009 rating decision effectuated a reduction in the Veteran's disability rating from 60 percent to 40 percent disabling based on the findings of the May 2009 VA examination, effective August 1, 2009. The record reflects that the RO has complied with the due process requirements of 38 C.F.R. § 3.105(e) in its reduction of the evaluation for a lumbar spine disability from 60 percent disabling to 40 percent disabling. However, specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344(a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). 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). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. In this case, the 60 percent disability evaluation for a service-connected lumbar spine disability was in effect for over 10 years at the time of the reduction. Because the lumbar spine disability was rated at the same level for five years or more, the provisions pertaining to reductions of stabilized evaluations are applicable. See 38 C.F.R. § 3.344(a) and (b); Brown, supra. Considering the March 2008 and May 2009 VA examination reports and the record as a whole, the Board finds that the evidence does not show that there has been an actual improvement of the Veteran's lumbar spine disability under the ordinary conditions of life and work to justify a reduction in his disability ratings. While the March 2008 VA examination reflected that the Veteran's range of motion was much greater than on prior examinations, including when the initial 60 percent disability rating was assigned, the Board notes that, soon after, the Veteran's spine range of motion drastically decreased again as evidenced by the May 2009 VA examination. On March 2008 VA examination, range of motion studies showed forward flexion from 0 to 70 degrees with pain at 60 degrees; extension was 0 to 10 degrees with pain throughout motion; left lateral flexion was 0 to 20 degrees with pain at 10 degrees; right lateral flexion was 0 to 20 degrees with pain at 10 degrees; left lateral rotation was 0 to 20 degrees with pain onset at 10 degrees; and right lateral rotation was 0 to 20 degrees with pain onset at 10 degrees. There were no changes on repetitive motion. On May 2009 VA examination, range of motion studies revealed forward flexion from 0 to 20 degrees, extension from 0 to 10 degrees, left and right lateral flexion each from 0 to 15 degrees, and left and right lateral rotation form 0 to 25 degrees. There was objective evidence of pain on motion as well as pain following repetitive motions. There were additional limitations on repetition in that flexion was limited for 15 degrees and extension was limited to 5 degrees. Furthermore, throughout the appeal period, the Veteran has maintained that he had pain and stiffness with severe flare-ups. VA outpatient treatment records reflect ongoing complaints and treatment for low back pain. On March 2008 VA examination, he had complaints of pain in the lower lumbar paraspinal space with occasional radiation doe nth left leg. He reported that he occasionally used a cane. He had complaints of a history of erectile dysfunction as well as subjective weakness and subjective numbness in the left anterior femoral nerve distribution on the left leg. He stated that he could walk approximately five to ten minutes maximum before stopping to rest secondary to worsening pain in the left leg and low back. On neurologic examination, his toes went down, bilaterally. On the May 2009 VA examination, the Veteran indicated that he used a cane, back brace, corrective shoes, and lumbar support while driving. He reported a history of fatigue, decreased motion, stiffness, weakness, spasms, and pain. There was pain that radiated down the left leg to the foot. The pain was described as dull, aching, burning, throbbing, radiating, sharp, shooting, constant, and severe. He claimed that he had severe flare-ups every other day that lasted for hours. On examination, the Veteran's posture was stooped and antalgic with limited spinal movement. There was a lack of motion. Lumbar flattening and kyphosis were present. There were spasms, guarding, pain with motion, and tenderness. He had decreased mobility, problems, with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength and pain. The examiner noted that the Veteran had incapacitating episodes due to intervertebral disc syndrome. The examiner added that the Veteran could no longer engage in sports, exercise, or recreation due to back pain. He could only sit in a car for 45 minutes at a time, which limited his travel. He was unable to perform chores around the house and sometimes needed help getting dressed and cleaned up, etc. Overall, evidence throughout the appeal period remained indicative of intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, characteristic pain, and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc and little intermittent relief and were similar to the findings of the November 1994 VA examination, which was the basis of the original 60 percent disability rating. The Board also reviewed the findings of the March 2010 VA feet examination, which showed some flattening of the spine, tenderness top palpation of light touch, and extremely limited range of motion testing. Manual muscle testing was also extremely limited due to severe pain with small degree of motion. In the thoracolumbar spine, forward flexion was to 10 degrees, extension was to 0 degrees, bilateral lateral flexion and rotation were each to 5 degrees with pain throughout motion. There was no additional limitation due to pain, fatigue, weakness, or incoordination on repetitive motion testing. The Veteran complained of a constant dull ache and burning, squeezing, and throbbing in the lower back. Accordingly, the Board finds that the lay and medical evidence of record, when considered as a whole, does not show a material and sustained improvement of the Veteran's lumbar spine disability. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the reduction of the 60 percent disability rating for the lumbar spine disability was improper and the 60 percent disability rating is hereby restored, effective August 1, 2009. B. Severance of TDIU and DEA Benefits Additionally, the Veteran challenges the propriety of the severances of his TDIU and DEA benefits. By way of history, in a June 1995 rating decision, the RO granted entitlement to a TDIU under and DEA, effective May 22, 1995. At the time of the June 1995 rating decision granting a TDIU and DEA benefits, the Veteran was service connected for residuals of a lumbar laminectomy L4-5 with limitation of motion, rated as 60 percent disabling; and residual ganglion cyst scars of the bilateral wrists, peptic ulcer with duodenal deformity, colon polyps, and hemorrhoids, each assigned noncompensable ratings. In a March 2008 rating decision, the RO proposed to reduce the disability ratings for the Veteran's service-connected lumbar spine disability. As a result, in the same rating decision, the RO proposed to discontinue entitlement to TDIU and DEA benefits. In a May 2009 rating decision, the RO discontinued entitlement to a TDIU and DEA benefits, effective August 1, 2009, finding that the Veteran no longer met the disability criteria for being totally disabled due to service-connected disabilities and was no longer considered totally disabled due to service-connected disabilities. The record reflects that the RO has complied with the due process requirements of 38 C.F.R. § 3.105(e) in its discontinuation of the TDIU award. With respect to whether the evidentiary requirements for terminating the TDIU have been met, the Board notes that caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343(c). As an initial matter, although the Veteran no longer met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) as a result of the May 2009 decision, a TDIU is still warranted in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). On May 2009 VA examination, the examiner noted that the Veteran was not employed. The examiner found that the Veteran's lumbar spine disability caused significant effects on his occupation in housekeeping due to the frequently he would miss work and need to change work assignments due to back limitations. He had decreased mobility, problems, with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength and pain. To discontinue the award of a TDIU, the pertinent regulation requires that the evidence clearly and convincingly establishes employability. None of the evidence before the RO at the time of the May 2009 decision even remotely suggested that the Veteran was actually employable. Accordingly, the Board concludes that restoration of the Veteran's TDIU is warranted. In regards to DEA benefits, VA law provides that DEA benefits under Chapter 35, Title 38, United States Code, may be paid to dependents of a veteran who meet certain basic eligibility requirements. As pertinent to this appeal, basic eligibility for DEA exists if the veteran has a permanent, total service-connected disability. 38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. § 3.807(a), 21.3021. A total disability may be assigned where the veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The RO discontinued entitlement to DEA benefits on the basis of the discontinuation of the TDIU award. Given that, as explained in the prior section, the TDIU award is being restored, and as there is otherwise no indication that the Veteran no longer meets any of the other criteria for eligibility for DEA benefits, the Board finds that the Veteran is entitled to restoration of basic eligibility for DEA benefits. III. Increased Rating The Veteran claims that his back disability is more severe than his currently assigned 60 percent disability rating suggests and, therefore, warrants a higher rating. For the reasons and bases discussed below, the Board finds that the record does not support a rating higher than 60 percent for his back disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40 , 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 ("functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded"); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). As is the case here, where entitlement to compensation has already been established and an increase in the disability ratings are at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). As previously mentioned, the Veteran filed his current informal claim indicating that his lumbar spine disability increased in severity in February 2008. Therefore, only the changes in the rating criteria of the spine, effective September 2003, will be considered. See VAOPGCPREC 3-2000 (Apr. 10, 2000). For the reasons that follow, however, the Board finds that the Veteran is not entitled to a rating in excess of 60 percent. In general, lumbar spine disabilities are evaluated under either the general rating formula for diseases and injuries of the spine, or under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes (DC 5243), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. DC 5243 provides a maximum 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, with additional ratings ranging from 10 to 40 percent based on incapacitating episodes occurring less frequently. 38 C.F.R. § 4.71(a), DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71(a), Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Alternatively, the general rating formula for diseases and injuries of the spine provides a 100 percent evaluation for unfavorable ankylosis of the entire spine, with no other rating higher than 50 percent. 38 C.F.R. § 4.71(a), DC 5243. The Veteran's currently assigned 60 percent rating under DC 5243 is the maximum possible rating under that Diagnostic Code. As the Board has determined that a 60 percent rating is warranted for the entire period of appeal, the only possible increase in his evaluation for lumbar spine disability would be a 100 rating based on unfavorable ankylosis of the entire spine, under the general rating formula for diseases and injuries of the spine. On March 2008 VA examination, the examiner specifically found that there was no unfavorable ankylosis of the cervical or thoracolumbar spine. As discussed above, on March 2008 and May 2009 VA examinations, the Veteran still maintained motion in his spine. On March 2010 VA feet examination, a physical examination of the spine showed that there was some flattening of the spine, tenderness top palpation of light touch, and extremely limited range of motion testing. Manual muscle testing was also extremely limited due to severe pain with small degree of motion. In the thoracolumbar spine, forward flexion was to 10 degrees, extension was to 0 degrees, bilateral lateral flexion and rotation were each to 5 degrees with pain throughout motion. There was no additional limitation due to pain, fatigue, weakness, or incoordination on repetitive motion testing. The examiner noted that the Veteran has been unemployed since 1995 due to his back with some contribution from knee and foot pain. The Veteran has not averred, nor does the objective medical evidence indicate, any diagnoses of ankylosis of the entire spine at any point during the appeal period. In view of the Veteran's current 60 percent rating, and considering that unfavorable ankylosis of the entire spine is the only basis for an increased evaluation in this case, the Board finds that a rating in excess of 60 percent is not supported by the evidence. Hence, as service connection for a disability of the entire spine is not in effect, a rating in excess of 60 percent is not allowable. The Veteran is receiving the maximum schedular rating under the General Rating Formula for Diseases and Injuries of the Spine for a disability of the thoracolumbar spine. There is simply no basis for a higher rating. In regards to whether a separate evaluation is warranted for any associated neurological abnormality, in a June 2010 rating decision, the RO granted a separate 10 percent disability evaluation for left leg radiculopathy effective November 27, 2009. The Veteran has not appealed this issue and this matter is not currently before the Board. Under 38 C.F.R. § 4.71(a), any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, is also to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). Although on March 2008 VA examination the Veteran indicated that he had a history of urinary incontinence, urgency, and nocturia; fecal incontinence; obstipation; and erectile dysfunction, the examiner found that there was no objective evidence that these symptoms were related to the back disability. Therefore, a separate evaluation for any such symptoms due to his lumbar spine disability is not warranted. The Board has also considered the Veteran's statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not, however, competent to identify a specific level of disability of a low back disability according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's low back disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Finally, with respect to an extraschedular rating under 38 C.F.R. § 3.321, the applicable rating criteria reasonably describe the Veteran's disability level and symptoms regarding pain, stiffness, muscle spasms, limitation of motion, and incapacitating episodes, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria are thus adequate to evaluate the disabilities, and referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER The 60 percent rating for the lumbar spine disability is restored, effective the date of the reduction. Entitlement to a TDIU is restored, effective the date of the discontinuation. Entitlement to DEA under Chapter 35, Title 38, United States Code is restored, effective the date of the discontinuation. A rating in excess of 60 percent for the lumbar spine disability is denied. ____________________________________________ SONNET BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs