Citation Nr: 1541124 Decision Date: 09/24/15 Archive Date: 10/02/15 DOCKET NO. 09-25 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 20 percent for recurrent low back pain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to November 1991. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a October 2007 rating decision of the VA Regional Office (RO) in Cleveland, Ohio that denied service connection for numbness and granted service connection for recurrent low back pain and assigned a 20 percent disability rating. In his June 2009 substantive appeal, the Veteran requested a hearing. He was scheduled for a hearing in January 2013, but did not appear and has not asserted good cause for doing so. His hearing request is therefore considered withdrawn. 38 C.F.R. § 20.702(d). In February 2013, the Board remanded both issues for additional development. In April 2013, the RO granted service connection for right lower extremity radiculopathy and assigned an initial 10 percent rating. The Veteran has not expressed disagreement with that determination. Thus, this issue is no longer on appeal. The Veteran has also filed a notice of disagreement (NOD) with respect to a July 2015 RO decision denying his petition to reopen a previously denied claim for pes planus and an increased rating for a right knee disability. As the RO has acknowledged receipt of the NOD via an August 2015 letter, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized, and no further action is required by the Board at this time. The Board notes that updated VA treatment records were received after the Agency of Original Jurisdiction (AOJ) last reviewed this claim in April 2013. However, in April 2013, the Veteran's representative waived initial AOJ consideration of new evidence, so that the Board may review these records in the first instance. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. Prior to September 1, 2011, the objective medical evidence shows disability of the low back tantamount to forward flexion limited to 30 degrees or less. 2. Beginning September 1, 2011, the objective medical evidence does not show disability of the low back tantamount to forward flexion limited to 30 degrees or less, even considering functional impairment due to pain and flare-ups. CONCLUSIONS OF LAW 1. Prior to September 1, 2011, the criteria for a 40 percent rating, but no higher, for a low back disability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2014). 2. Beginning September 1, 2011, the criteria for a rating in excess of 20 percent for a low back disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provides that VA will notify and assist a claimant in obtaining evidence necessary to substantiate a claim. The VCAA requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Here, a September 2007 letter provided notice of the information and evidence needed to substantiate a service connection claim, the division of responsibility between the Veteran and VA for obtaining evidence, and the process by which disability ratings and effective dates are assigned. Additional VCAA notice is not required for downstream issues, such as permanency of the initial rating. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to notify is therefore satisfied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The Veteran's VA treatment records has been obtained. He was afforded VA lumbar spine and neurology examinations in September 2011 and April 2013. They reflect review of the relevant medical history and pertinent clinical evaluation. The examiners provided clinical findings that were responsive to the Veteran's reports, medical history and current treatment. The Board considers the examination reports adequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no indication that his low back symptoms have materially increased since he was last examined. The record reflects substantial compliance with the February 2013 Board remand, as the AOJ sent a March 2013 letter requesting treatment information from the Veteran, obtained updated VA outpatient records, and provided appropriate VA examinations prior to readjudication of the claim in April 2013. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). For the reasons stated above, VA complied with its duties to notify and assist under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Higher initial rating for a low back disability Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation-of-motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996). All complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. DeLuca v. Brown, 8 Vet. App. 202 (1995). In accordance with this requirement, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation-of-motion diagnostic codes. See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's low back disability has been rated in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2014). Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DC 5237. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The 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. Note (3) provides that in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Degenerative disc disease is rated under 38 C.F.R. § 4.71a, DC 5243. Ratings under this code turn on the total duration of incapacitating episodes. Those having a total duration of at least one week but less than 2 weeks during the past 12 months warrant a 10 percent rating. Those having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a 20 percent rating. DC 5243. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). In September 2007, the Veteran was afforded a VA lumbar spine examination with review of the claims folder. He reported that he could not remain stationary for any significant amount of time without experiencing low back pain. He took medication for treatment. Clinical examination showed him to be fully ambulatory. The examiner commented that there was loss of lordosis. No tenderness was found and the Veteran denied muscle spasm. Range of motion showed lumbar spine forward flexion to 10 degrees. He had no lumbar extension or right lateral bending. Left lateral movement was to 30 degrees. He reported pain with all movement. Straight leg test was negative bilaterally. He had positive reflexes in both legs and no motor weakness. The examiner noted functional impairment of the spine as mild lack of endurance, no lack of coordination, and mild restriction of repetitive use. The examiner assessed recurrent low back pain. He commented that he believed lumbar motion would be half of normal flexion, extension and lateral bending in the lumbar spine. He noted prior radiographic studies were normal and there was no evidence of radiculopathy. December 2007 and January 2008 VA primary care records reflect that the Veteran complained about low back pain and diffuse joint pain. Clinical evaluation was unremarkable. August 2008 VA primary care records show that the Veteran was advised to see an orthopedist about his joint pain, but declined to do so. November 2008 VA primary care records indicate that the Veteran denied having low back pain. He was evaluated for glucose intolerance versus diabetes. May 2009 VA primary care records reflect an assessment of borderline diabetes. In July 2009, the Veteran sought emergency treatment for low back pain. It started when he lifted his child. He also reported having chronic low back pain before the episode. Clinical evaluation showed that his entire back was tender to palpation. He was noted to move slowly. He was given medication and instructed to use heat and massage to alleviate his pain. July 2009 VA primary care records reflect that the Veteran reported 7/10 low back pain. He was recommended for a magnetic resonance imaging (MRI) study. He ultimately declined due to claustrophobia. He was then referred to physical therapy (PT) for low back pain. July 2009 CT scan showed possible lumbar disc herniation at L2-L3 and L5-S1. In his June 2009 substantive appeal, the Veteran reported that his back disability had increased. He cited difficulty with prolonged standing, sitting and walking. August 2009 VA PT records reflect that the Veteran had lumbar flexion to 20 degrees and extension to 10 degrees due to pain. Straight leg raise (SLR) test in the supine position showed significant back pain at 20 degrees. Neurologic findings showed light touch and pinprick grossly intact for both legs. Deep tendon reflexes were diminished (1+) in both legs and absent in both ankles. The examiner assessed lumbar muscle strain and spasm due to herniated discs, facet arthropathy, much less likely lumbar radiculopathy, and contribution of chronic pain syndrome. PT, lumbar corset and medication were ordered. Note, March 2010 VA PT records reflect that PT was not completed at this time due to scheduling conflicts. November 2009 VA podiatry clinic records confirm that the Veteran was monitored for possible diabetes. He reported numbness in his feet, but believed it was related to his low back disability. Neurological evaluation showed protective sensation intact throughout his legs. Musculoskeletal evaluation revealed him to be ambulatory and have full muscle strength. March 2010 VA PT records reflect that the Veteran noticed an increase in low back pain with radiation to his right leg about six weeks ago. He described the radiating pain as a dull ache, but denied any numbness or tingling. He remained in bed for the past five days due to it. He currently described his pain as 5-7/10. It was intermittent and rose with sitting and applying pressure to right buttocks. He did not use his back brace. Clinical evaluation showed full strength in both legs. Right SLR was positive at 40 degrees. He had full reflexes. The examiner noted the new radiculopathy and recommended PT. A subsequent March 2010 PT note documents that the Veteran had an unspecified limitation of forward flexion, lateral flexion and rotation and 4/5 strength in both legs. He complained about numbness and tingling in his right leg. April 2010 VA podiatry findings were substantially similar to those recorded in November 2009. April 2010 VA PT records show that the Veteran had 4/10 low back pain prior to treatment and 1/10 afterwards. He fully participated in his treatment program and his activity tolerance was increasing. December 2010 VA primary care records reflect that the Veteran presented with low back pain radiating into both legs and numbness and tingling in his feet. His medical history was significant for new onset of diabetes and sciatica. The Veteran denied any bowel or bladder problems. The examiner assessed lumbago and noted an acute exacerbation of chronic low back pain. A rehabilitation request was placed. December 2010 VA rehabilitation clinic records show that a transcutaneous electrical nerve stimulation (TENS) unit was ordered and the Veteran was referred for private PT. He reported that he had experienced a severe back pain exacerbation the other day, but it returned to baseline. He believed his back pain had worsened over the past two years. Clinical evaluation showed an unremarkable gait. Strength was slightly diminished (4+/5) in bilateral knee and hip flexors, but was otherwise normal in both legs. Monofilament testing suggested normal sensation in both legs. May 2011 VA primary care records show that the Veteran continued to have low back pain. The examiner assessed stable low back pain with sciatica and lumbago with intermittent pain. May 2011 VA PT records reflect that the Veteran was not contacted about private PT approved last December. However, he reported that his low back pain improved since he changed jobs. He currently had pain in his right lateral hip that occasionally radiated to his right lateral leg. It was worse when lying on his right side. Clinical evaluation showed a steady gait and full strength in both legs. Deep tendon reflexes could not be assessed. PT was again recommended. August 2011 X-ray report confirmed mild degenerative disc disease at L5-S1 and mild degenerative spurring of the lumbar vertebrae. In September 2011, the Veteran was afforded a VA examination. He reported having low back pain radiating to his right leg since his in-service injury. He used narcotics on a daily basis for treatment. Range of motion showed forward flexion to 60 degrees, extension to 15 degrees and left lateral rotation to 15 degrees. Right lateral rotation and bilateral bending was normal. He exhibited full muscle strength in both legs. SLR was positive on the right at 30 degrees and mild. SLR was negative for the left leg. Sensation in both legs was normal. Palpation showed mild tenderness at L5-S1 on the right side. The examiner diagnosed herniated nucleus pulposus on the right, chronic and mild. He also diagnosed mild degenerative disc disease at L5-S1. He indicated that limited and painful motion was reflected in the restricted motion reported above. He reported mild weakness and lack of endurance secondary to the above lumbar disc problems and obesity. In April 2013, the Veteran was afforded a VA lumbar spine examination with review of the claims folder. The examiner diagnosed lumbar spondylosis with myelopathy. He recited the pertinent medical history. The Veteran reported having flare-ups of low back pain every two months or so and missing work. He could generally walk and exercise without too much trouble, but had pain afterwards. Clinical evaluation showed forward flexion to 40 degrees with endpoint pain. Extension and lateral flexion were to 15 degrees with endpoint pain. Lateral rotation was to 20 degrees with endpoint pain. Repetition did not further diminish the restricted movements above. The examiner identified functional impairment from restricted movement and pain. He reported that muscle spasm was significant enough to cause abnormal gait and abnormal spinal contour. The Veteran exhibited full strength in both legs. However, the examiner noted muscle atrophy with atrophied leg being 1.5 centimeters smaller than the other. The Veteran had hypoactive reflexes in both legs. Sensation was normal, except for the right foot and toes (L5 nerve). SLR was positive for the right leg. The examiner identified intermittent right leg mild pain and numbness as radiculopathy symptoms. No other neurological abnormalities were observed. The examiner commented that the Veteran had intervertebral disc syndrome (IVDS) with incapacitating episodes. These episodes lasted between a week and two weeks over the past year. The Veteran did not use any assistive devices. He noted prior imaging studies confirming degenerative disc disease and spurring of the lumbar spine. The Veteran also had a VA peripheral nerves examination in April 2013 with review of the claims folder. The examiner diagnosed right sided lumbar radiculopathy. The examiner noted severe intermittent pain and moderate paresthesias and numbness for the right leg. He exhibited full muscle strength. Muscle atrophy was not found. Reflexes and sensory testing was normal. With the exception of the right musculocutaneous nerve, which was described as evidencing "mild incomplete" paralysis, the examiner assessed all nerves as normal. The examiner commented that the Veteran was unable to work during flare-ups of sciatica. The Veteran reported that he lost time from work, including an occasion where he missed six weeks of work and was placed on "family leave." August 2013 VA primary care records show that the Veteran had 3/10 low back pain. Sensation was intact for both legs. He was given medication for low back pain. He was also noted to have uncontrolled diabetes. August 2013 VA podiatry clinic records document that the Veteran had intermittent burning and numbness in his right foot. He had tingling sensations in both feet. Clinical evaluation showed him to have protective sensation throughout his legs. He had full strength in both legs. The examiner assessed diabetes, among other podiatry diagnoses. February 2014 VA treatment records reflect that the Veteran had an episode of acute back pain after lifting heavy objects. He requested a renewal of his medications. May 2014 VA primary care records show that the Veteran was assessed with continuing back pain and his pain relief medication was maintained. January 2015 VA primary care records reflect that the Veteran complained about low back pain and numbness in his right foot after falling the day before. Clinical examination showed him to have 7/10 low back pain with right foot numbness and tingling. The examiner noted that the neurological complaints may be related to diabetes. He issued a work excuse note for the Veteran citing his need to rest due to acute low back pain. He advised the Veteran to rest and take his medication. January 2015 ER records show that the Veteran sought treatment for acute low back pain. He described having a 5 day history of low back muscle spasms after a slip and fall injury. He denied any bowel or neurological problems. Clinical examination was positive for paraspinal spasm, but was negative for bony tenderness or deformity. The examiner assessed lumbar back strain. January 2015 VA treatment records include continued reports about increased back pain since the recent slip and fall injury. The Veteran initially had numbness and tingling in his right foot, but these symptoms subsided. Pain increased with bending and carrying objects, but was relieved by rest. He could only walk a block. He requested a work excuse note. Clinical evaluation showed that lumbar pain was somewhat out of proportion to palpation of the lumbar muscles and right sciatic notch. He exhibited full strength in both legs and could walk on his heels and tiptoes without difficulty. Neurological findings showed that deep tendon reflexes could not be elicited. Sensation was grossly intact for both legs. The examiner assessed acute low back strain and provided a work excuse note. PT was recommended. February 2015 VA treatment records show that the Veteran was evaluated for radiculopathy. He believed his right leg pain was improving with PT. Musculoskeletal findings were notable for independent transfers and gait. Electromagnetic diagnosis studies were conducted. They suggested right S1 radiculopathy and weighed against peripheral neuropathy. March 2015 VA PT records indicate that the Veteran's low back pain had improved. March 2015 VA treatment records reflect that the Veteran's low back pain had returned to its baseline. The Veteran wanted to return to work. Clinical evaluation showed full strength in both legs. He could walk on his heels and tiptoes and arise with his arms crossed without difficulty, but slowly. The examiner commented that the Veteran could return to work on restricted duty and informed him that he may not be able to perform his current job in light of the restrictions. The Veteran contends that a rating in excess of 20 percent is warranted for service-connected recurrent low back pain. Notably, ratings in excess of 20 percent are limited under both the General Rating Formula and the alternative Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5237. Under DC 5237, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or, favorable ankylosis of the entire thoracolumbar spine. Id. Under DC 5243 for IVDS, a 40 percent rating contemplates between 4 and 6 weeks of incapacitating episodes during the past 12 months necessitating physician directed bed rest. 38 C.F.R. § 4.71a, DC 5243. Briefly, the Board finds the evidence to weigh against a 40 percent rating under the alternative IVDS criteria. Id. The most favorable evidence is limited to the Veteran's April 2013 report that he missed six weeks of work due to sciatica and low back pain. However, despite this report, the April 2013 VA examiner, a physician, specifically determined that the Veteran experienced between one and two weeks of incapacitating episodes over the past year due to IVDS. More recent VA clinical records also document that the Veteran was given a work excuse from approximately January to March 2015 following an exacerbation of low back pain. However, these reports do not indicate that any exacerbation caused incapacitating pain or otherwise necessitated physician-directed bed rest as the mode of treatment for at least a month. For these reasons, a 40 percent rating under DC 5243 for IVDS based upon incapacitating episodes is not for further consideration. Id. The Veteran has provided varying subjective reports concerning low back pain and neurological disturbance. As a layperson, he is competent to report observable symptoms. However, his reported symptoms must be weighed with the competent medical evidence, and the Board generally attaches greater probative weight to the clinical findings of skilled, unbiased professionals. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). In this case, the objective range-of-motion studies suggest that the Veteran's low back disability improved during the course of the appeal. Findings recorded in the September 2007 VA examination report and August 2009 VA PT records meet the requisite limitation of motion for a 40 percent rating under DC 5237. 38 C.F.R. § 4.71a, DC 5237. They show forward flexion restriction of 10 degrees and 20 degrees, respectively. Id. The Board briefly notes that the September 2007 VA examiner remarked that he believed the Veteran's motion was restricted to half of normal, or approximately 45 degrees. Notwithstanding his comments, he recorded a measurement for forward flexion motion to 10 degrees and the Board will consider this more favorable finding. 38 C.F.R. §§ 4.3, 4.7. Meanwhile, the September 2011 and April 2013 VA examination reports suggest an improvement and weigh against assignment of a 40 percent rating under DC 5237. Id. In light of the above, the Board assigns a 40 percent rating prior to September 1, 2011 for service-connected recurrent back strain. Fenderson, supra.; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5237. This determination is based upon the probative clinical reports from September 2007 and August 2009 showing a restriction of lumbar forward flexion beyond the requisite limitation for a 40 percent rating under DC 5237. Id. A rating in excess of 40 percent is not warranted as the Veteran does not have ankylosis of the spine. Id. Although it cannot be stated with certainty as to when the Veteran had improved forward flexion motion, the September 1, 2011 VA examination is the initial instance of factually ascertainable improvement. The Board finds the September 2011 VA examination report highly probative since it is an objective clinical report. Caluza, 7 Vet. App. 498, 506. From September 1, 2011 onwards, there are no clinical range of motion studies with the requisite restricted motion needed for a 40 percent rating. While the Veteran's reports of pain and flare ups are acknowledged, the Board finds that the effects of pain reasonably shown to be due to the service-connected low back disability are already contemplated by the 20 percent rating for painful motion. The objective clinical evidence indicates that although there has been low back pain, it did not objectively limit motion to a degree contemplated by the 40 percent rating criteria under DC 5237. Id.; DeLuca, supra.; Mitchell, supra. Even when functional losses, such as those due to pain or flare-ups, are contemplated, there has been no showing that such losses have equated to clinically verifiable limitation of flexion to 30 degrees or less. The Board has considered whether a rating in excess of 10 percent for right leg radiculopathy or additional separate ratings for neurological symptoms of the lower extremities are warranted. 38 C.F.R. § 4.124a. The most favorable evidence in this regard is from the April 2013 VA examination reports. The VA back examiner reported muscle atrophy and the VA neurology examiner assessed moderate sensory disturbances. The report about atrophy conflicts with the contemporaneous clinical neurology examination and there are no other clinical reports suggesting lower extremity atrophy. Rather, the Veteran has repeatedly demonstrated good strength movement for both legs. See March 2010, December 2010, March 2011 VA PT reports; September 2011 and April 2013 VA examination reports; August 2013 and January 2015 VA treatment records. Concerning sensory disturbances, the rating criteria direct that when involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree of incomplete paralysis. 38 C.F.R. § 4.124a. Here, the April 2013 examiner's initial notation of moderate paresthesias and numbness for the right leg conflicts with his contemporaneous neurological examination, which indicated that sensory testing was entirely normal. Indeed, the examiner subsequently characterized the disability as exhibiting "mild" incomplete paralysis, and there are no other clinical reports suggesting moderate incomplete paralysis. Rather, the Veteran has repeatedly demonstrated normal sensation in the right leg. See November 2009, December 2010, March 2011; and January 2015 VA treatment records; September 2011 and April 2013 VA examination reports. The Board therefore considers the April 2013 report about atrophy and moderate sensory disturbance to be an outlier and not probative to show more severe neurological disturbance in the right leg than previously contemplated. Since the clinical findings do not approximate moderate sensory disturbance, the Board declines to assign a separate rating in excess of the currently assigned 10 percent rating for right lower radiculopathy. Id. There are general references to radiculopathy in response to the Veteran's reports of neurological disturbances allowing the possibility of it affecting the left leg. However, the weight of the clinical findings indicates that radiculopathy is affecting the right, rather than the left leg. No other neurological manifestations affecting the left leg are directly attributed to his back disability. See September 2007, September 2011 and April 2013 VA examination reports; see also VA treatment records from November 2009, April 2010, December 2010, May 2011, August 2013 and January 2015 (suggesting absence of neurological symptoms affecting the left leg). Thus, the Board declines to assign a separate compensable rating for neurological manifestations affecting the left leg. There are no other neurological abnormalities reflected in the evidence of record associated with the Veteran's back disability. For the above stated reasons, a 40 percent rating for recurrent service-connected low back pain is granted prior to September 1, 2011; in all other respects, the claim is denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5237, 5243, 4.124a, DC 8520. The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1). The Board finds that the severity of the Veteran's service-connected low back disability and associated radiculopathy to be fully contemplated by the rating criteria. The symptoms consist of back pain, limitation of motion and neurological disturbances in his right leg with expected physical limitations due to these symptoms. These symptoms are fully addressed by the rating criteria. The Board emphasizes that for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet.App at 37 (2011). For disabilities of the joints in particular, 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. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. The Board therefore finds that the degree of disability experienced by the Veteran is fully contemplated by the rating schedule, and referral for extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the record does not show that the Veteran had any significant period of unemployability during the appeals period. Although a March 2015 VA treatment record suggests that the Veteran may be precluded from physically strenuous work tasks, he was not deemed completely unemployable due to his back disability, and the Veteran has not asserted otherwise. As the record does not otherwise raise the issue, the Board expressly finds that entitlement to a total disability evaluation based on individual unemployability is not for consideration at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 40 percent rating, but no higher, for recurrent low back pain is granted prior to September 1, 2011; in all other respects the appeal is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs