Citation Nr: 1604221 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 10-46 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral degenerative disc disease (DDD) with L4 wedging. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from October 1955 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted an increased rating from 10 to 20 percent for lumbosacral DDD with L4 wedging, effective July 7, 2008 (date of receipt of claim) and granted separate ratings for radiculopathy of the right and left lower extremities, each assigned initial 10 percent ratings from August 12, 2008, (date of VA examination). A January 2013 rating decision granted increased 20 percent ratings for radiculopathy of each lower extremity. In a November 2013 decision, the Board denied a rating in excess of 20 percent for lumbosacral DDD with L4 wedging; and denied ratings in excess of 20 percent for radiculopathy of the right and left lower extremities. The Veteran appealed the Board's November 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2014, the Court granted a joint motion for partial remand (JMPR) filed by representatives for both parties, vacating that portion of the decision in which the Board denied a rating in excess of 20 percent for lumbosacral DDD with L4 wedging, and remanding the claim to the Board for further proceedings consistent with the JMPR. An Order to this effect was issued in November 2014. The portion of the decision in which the Board denied ratings in excess of 20 percent for radiculopathy of the right and left lower extremities was abandoned and these claims were dismissed by the Court pursuant to the November 2014 Order. See McPhail v. Nicholson, 19 Vet. App. 30, 22 (2005) (dismissing abandoned claims on appeal). In March 2015, the Board remanded the issue of entitlement to a rating in excess of 20 percent for lumbosacral DDD with L4 wedging for additional development pursuant to the November 2014 JMPR. This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT At no time during the appeal period has the Veteran's lumbosacral DDD with L4 wedging, resulted in forward flexion of the thoracolumbar spine to 30 degrees or less, even in consideration of functional loss based on pain, fatigue, weakness, lack of endurance, and/or incoordination after repetitive use; favorable or unfavorable ankylosis of the entire thoracolumbar spine or the entire spine; or intervertebral disc syndrome with incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for lumbosacral DDD with L4 wedging are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321(b), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In the instant case, the Veteran was sent a letter in August 2008, prior to the initial adjudication, that fully addressed all notice elements with respect to the increased rating issue adjudicated below. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in obtaining such evidence. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Subsequently, after the initial adjudication adjudication in September 2008, notice specific to the rating criteria used to rate the Veteran's lumbar spine disability was included in a September 2010 statement of the case and the claim was readjudicated in January 2013 and November 2015 supplemental statements of the case. Accordingly, any timing deficiency has been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Relevant to the duty to assist, the Veteran was afforded the opportunity to testify at a hearing in support of his claims but declined that opportunity. The RO has obtained his service treatment records (STRs) and VA treatment records. In September 2012, the RO made a formal finding that the Veteran's records pertaining to Social Security Administration (SSA) disability benefits are unavailable, having been notified by SSA that the records were destroyed. Also, although requested, the Veteran had never indicated that he has received any treatment from a private medical source. The Veteran was afforded several VA rating examinations regarding the claim for increase. Most recently, the Veteran was afforded a VA examination in October 2015 and neither the Veteran nor his representative has alleged that the examination is inadequate for adjudication purposes. The Board finds that the October 2015 examination is adequate in order to evaluate the Veteran's service-connected lumbar spine disability as it includes an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Furthermore, the Veteran has not alleged that such disability has increased in severity since the October 2015 VA examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time not a basis for requiring of new examination). Therefore, the Board finds that the October 2015 examination report is adequate to adjudicate the Veteran's increased rating claim and no further examination is necessary. As above, in March 2015, the Board remanded the case for additional development. Specifically, the Board remanded the lumbar spine issue to obtain all outstanding, pertinent VA treatment records dated since October 2011 (which was accomplished in August 2015), to provide the Veteran with a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable VA to obtain any addition evidence pertinent to the claim in appeal that is not currently of record (which was accomplished by letter dated in June 2015), to schedule the Veteran for a VA examination to determine the current severity of lumbar spine disability (which was accomplished by VA examination in October 2015), and to readjudicate the claim (which was accomplished in a November 2015 supplemental statement of the case). Therefore, the Board finds that the AOJ has substantially complied with the March 2015 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Ratings Schedule) found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating an appellant's service-connected disabilities. 38 C.F.R. § 4.14. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, 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 absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. The Veteran's STRs show numerous complaints of chronic low back pain and an impression of chronic lumbosacral strain. By rating decision dated in April 1976, the RO granted service connection for DDD, L5-S1, with minimal wedging L4, secondary to hypertrophic changes, and assigned an initial 10 percent disability rating effective December 1, 1975. As above, by rating decision dated in September 2008, the RO increased the disability rating for the lumbar spine to 20 percent disabling effective July 7, 2008. Thereafter, the Veteran perfected an appeal of this decision. The rating for the Veteran's lumbar spine disability has been assigned under 38 C.F.R. § 4.71a, DC 5242 (degenerative arthritis of the spine). In this regard, the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine holds that for DCs 5235 to 5243, a rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted where there is forward flexion of the cervical spine to 15 degrees of less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is not greater than 170 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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): 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): Round each range of motion measurement to the nearest five degrees. Note (5): 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): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IDS Based on Incapacitating Episodes provides for a 60 percent rating when there are incapacitating episodes of IDS having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 10 percent rating is warranted when there are incapacitating episodes of IDS having a total duration of at least one week, but less than two weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. III. Factual Background Evidence relevant to the current level of severity of the Veteran's lumbar spine disorder includes VA examinations dated in August 2008, December 2012, and October 2015 as well as VA treatment records dated through August 2014. On VA spinal examination in August 2008 the Veteran's medical records were reviewed. The Veteran reported that his low back condition had progressively worsened. He had no history of urinary or fecal incontinence. He related having paresthesias but not numbness or weakness of the legs or feet. He reported that he had fallen and was unsteady. Some of his urinary symptoms were due to benign prostatic hypertrophy, and he sometimes had radiation of pain into his legs. His generally stiff gait made him somewhat unsteady. He had a history of fatigue, decreased motion, pain, and spasm in the lower lumbar area but no weakness. The severity of his pain was mild to moderate and was constant. The pain radiated into both calves on a monthly basis. He had no flare-ups. He had not had any incapacitating episodes of the thoracolumbar region in the last 12 months. He could walk 1/2 block and used a walker. He was sedentary except for doing some basic stretching exercises. He had used a walker for the last 6 months when outside of his house. On physical examination the Veteran had spasm of the thoracic sacrospinalis muscles, bilaterally, but no atrophy or guarding. He had painful motion and tenderness but no weakness. His posture and head position was normal. His spine was symmetric in appearance. He also used a back brace. His gait was stiff. There was no gibbus, kyphosis, listing, lumbar lordosis or reverse lordosis but there was lumbar flattening and scoliosis. Strength in all the muscles of his lower extremities was 5/5 against full resistance. His muscle tone was normal and there was no muscle atrophy. Vibratory and light touch sensation in the lower extremities was 1/2. The sensory pattern affected the lateral aspect of the calves and the toes of each foot. Deep tendon reflexes (DTRs) were 1+ at the knees and at the ankles. Babinski's test was normal. Testing of thoracolumbar motion revealed that active and passive flexion was to 45 degrees, ending at that point due to pain. There was pain on active and passive flexion, and after repetitive use but no additional loss of motion on repetitive use. Active and passive extension was to 20 degrees, ending at that point due to pain. There was pain on active and passive extension, and after repetitive use but no additional loss of motion on repetitive use. Lateral flexion, to the right and to the left, was to 15 degrees, ending at that point due to pain. There was pain on active and passive flexion, and after repetitive use but no additional loss of motion on repetitive use. Lateral rotation, to the right and to the left, was to 10 degrees, ending at that point due to pain. There was pain on active and passive flexion, and after repetitive use but no additional loss of motion on repetitive use. Lasegue's sign was positive, bilaterally. X-rays revealed advanced lumbar degenerative joint disease (DJD) and DDD, and a magnetic resonance imaging (MRI) scan also revealed canal and foraminal stenosis. The diagnosis was severe lumbar DDD and severe DJD, and bilateral lumbar radiculopathy. As to the effects on usual daily activities, they were mild as to dressing, toileting, and grooming; moderate as to shopping and traveling; and severe as to performing chores, exercise, and recreation. There was no affect as to his feeding himself or bathing. On VA spinal examination in December 2012, the Veteran reported that since his last examination his pain had worsened. He complained of flare-ups 4 to 5 times yearly, lasting 1 to 2 weeks and which caused him to be bedridden. For relief of flare-ups he used bed rest, Aleve, Precocet, Lidocaine ointment, and Meloxicam. On physical examination he had pain on flexion beginning at 60 degrees but flexion was completed to 70 degrees. He had pain on extension beginning at 15 degrees but extension was completed to 20 degrees. He had pain on right and left lateral flexion beginning at 15 degrees but those motions were completed to 20 degrees. He had pain on right and left rotation beginning at 15 degrees but those motions were completed to 20 degrees. He was able to perform 3 repetitions of motion and the ranges of motion in each plane were as recorded for completion of motions before repetitions. Thus, it was noted that he did not have any additional limitation of motion after repetitive-use testing. He did have functional loss or impairment due to limited motion, incoordination, swelling, and interference with sitting, standing and/or weight-bearing. He had positive paraspinal edema and tenderness to palpation from L1 thru S2. He did not have any guarding or muscle spasm. Neurologically, testing of muscle strength in the Veteran's lower extremities revealed that strength was 4/5 on bilateral hip flexion and bilateral knee extension but was 5/5 on bilateral ankle plantar flexion, bilateral ankle dorsiflexion, and great toe extension. He had no muscle atrophy. DTRs were 2+, bilaterally, at the knees and ankles. Sensations were normal throughout both lower extremities. Straight leg raising was positive, bilaterally. It was reported that upon testing he did not have any radicular pain or other symptoms or signs due to radiculopathy and it was reported that he did not have any radiculopathy on examination. He had no other neurologic abnormalities or findings related to his low back disability. It was concluded that he did not have thoracolumbar IDS. However, it was noted that he used a walker for ambulation on a regular basis. While arthritis was radiologically documented, he had no vertebral fracture but had significant lumbar DJD and DDD. As to the impact on his ability to work, he had moderate to severe impact-pain with standing, walking or prolonged sitting. On VA spinal examination in October 2015, the examiner reviewed the claims file and continued a diagnosis of DJD of the lumbar spine. The Veteran stated that, since his December 2012 VA examination, his service-connected back condition was worse. He continued to have increasing pain and stiffness in the low back. He stated that he always had to use a cane or walker to assist ambulation. His pain ranged from a 6 to a 10 on the 10 scale. His daily pain ranged from dull aching/throbbing to sharp at times. He stated this can be dependent and independent of physical activity. About three to four times a year, he experienced a flare for no known reason that can sometimes keep him in bed for up to a week. He reported that his last episode like this was about 6 weeks earlier. He denied a history of back surgery but that he did undergo injections in the back for pain in 2008 but the results were poor and he opted not to do it again. His current medications helped but the results were quite variable from day to day. He performed stretching exercises at home about twice a week that he was shown to do by the VA. Hot water also helped to some degree. He used a combination massage and heat pad to help when driving. He worked hard at maintaining his range of motion, but the pain just continued to get worse over time. He could stand in place for only about five minutes before having to sit down on his walker seat. He can last slightly longer when walking. The Veteran reported experiencing functional loss/impairment of the thoracolumbar spine (regardless of repetitive use), specifically limited range of motion as well as painful range of motion and ambulation. On range of motion testing, the Veteran had flexion to 90 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. This loss of motion contributed to a functional loss, specifically interference with bending, lifting, kneeling, and stopping. The pain noted on examination caused functional loss, specifically with regard to forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation. There was evidence of pain with weight bearing but there was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time but it was noted that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner was unable to state, without mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated used over a period of time. As for an opinion regarding loss of motion during periods of pain, weakness, fatigability, or incoordination during flare-ups or when the joint is repeatedly used over a period of time, such an opinion was not feasible and could not be provided without resorting to mere speculation because the Veteran did not have a flare-up of the back condition during the examination. There was no muscle spasm or localized tenderness, but there was guarding resulting in abnormal gait or abnormal spinal contour. Additional factors contributing to the Veteran's disability were instability of station, disturbances of locomotion, interference with sitting, and interference with standing. Muscle strength testing was normal and there was no muscle atrophy. DTRs were hypoactive. Sensory examination was normal for the upper anterior thigh (L2), thigh/knee (L3/4), and lower leg/ankle (L4/L5/S1) bilaterally and normal for the left foot/toes (L5) but decreased for the right foot/toes (L5). Straight leg raising test was negative. The Veteran had severe intermittent radicular pain due to radiculopathy of L4/L5/S1/S2/S3 (sciatic nerve) characterized as "moderate" radiculopathy, but the pain was not constant and there was no paresthesias and/or dysthesias or numbness. There were no other signs or symptoms of radiculopathy. There was no ankylosis of the spine. The Veteran did not have any other neurologic abnormalities of findings related to the thoracolumbar spine (such as bowel or bladder problems/pathologic reflexes). It was noted that the Veteran did have IDS but that there were no episodes of acute signs and symptoms due to IDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran used a cane constantly and a walker occasionally due to his disability, specifically, the Veteran uses the cane almost all of the time and the walker when he leaves the house to go somewhere. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the Veteran's lumbar spine disability, to include any scars. Imaging studies were not performed and the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. There were no other significant diagnostic test findings and/or results. The examiner noted that the Veteran's lumbar spine disability impacted his ability to work. Specifically, it was noted that the Veteran was best suited for sedentary type job tasks. VA treatment records dated through August 2014 are consistent with the examinations in August 2008, December 2012, and October 2015. Significantly, in December 2008 he underwent a lumbar epidural injection of analgesic medication at L4-5. It was noted that he had a significant myofascial and anxiety component to his pain and was not a good candidate for interventional pain therapy. A September 2008 lumbar MRI revealed multi-level severe canal and foraminal stenosis throughout the lower thoracic and the lumbar spine. A June 2009 lumbar X-ray revealed significant diffuse degenerative changes and scoliosis at l3-4; severe canal and foraminal stenosis at L4-5 and L5-S1. There was asymmetric spondylitic disc bulging and osteophyte complex to the left, causing canal stenosis and foraminal stenosis, greater on the left, when combined with facet hypertrophy. IV. Schedular Analysis Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran's lumbosacral DDD with L4 wedging did not result in forward flexion of the thoracolumbar spine to 30 degrees or less, even in consideration of functional loss based on pain, fatigue, weakness, lack of endurance, and/or incoordination after repetitive use; favorable or unfavorable ankylosis of the entire thoracolumbar spine or the entire spine; IDS with incapacitating episodes; or associated objective neurologic abnormalities. Significantly, a rating in excess of 20 percent is not warranted under the General Rating Formula. Specifically, in order to warrant a higher rating of 40 percent, forward flexion of the thoracolumbar spine must be limited to 30 degrees or less, or there must be favorable ankylosis of the entire thoracolumbar spine. In the instant case, the Board finds that the Veteran's lumbar spine disability results in no more than flexion limited to 45 degrees, even in consideration of functional loss based on pain, fatigue, weakness, lack of endurance, and/or incoordination after repetitive use. In this regard, at the August 2008 VA examination, the Veteran had flexion to 45 degrees, during the December 2012 VA examination the Veteran had flexion to 70 degrees (with pain at 60 degrees), and during the October 2015 VA examination he had flexion to 70 degrees. Also, in the August 2008, December 2012, and October 2015 VA examinations, it was specifically determined that the Veteran's flexion was not further limited by pain, repetitive motion testing, or pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. See DeLuca, supra; Mitchell, supra. While the November 2014 JMPR and the Board in its March 2015 remand, both found that the December 2012 VA examination was inadequate because the examiner failed to state whether there was additional functional loss during flare-ups, and whether the evidence adequately discussed additional range of motion loss caused by pain, flare-ups, incoordination, or weakened movement and, if so, whether it was feasible to express such in degrees of additional loss of motion, the Board notes that the October 2015 VA examiner did address this noted deficiency in the December 2102 VA examination and opined that he was unable to state, without mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated used over a period of time. As for an opinion regarding loss of motion during periods of pain, weakness, fatigability, or incoordination during flare-ups or when the joint is repeatedly used over a period of time, the October 2015 VA examiner found that such an opinion was not feasible and could not be provided without resorting to mere speculation because the Veteran did not have a flare-up of the back condition during the examination. Furthermore, as noted by all three examination reports, there is no ankylosis of the thoracolumbar spine. Likewise, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or entire spine. Therefore, the Board finds that a rating in excess of 20 percent under the General Rating Formula is not warranted. The Board has also considered whether the Veteran is entitled to a rating in excess of 20 percent under the Formula for Rating IDS Based on Incapacitating Episodes; however, the evidence fails to reflect that his lumbar spine disability results in incapacitating episodes resulting in physician-prescribed bedrest. Specifically, while both the August 2008 and October 2015 VA examination reports note that the Veteran does have a diagnosis of IDS, they indicated that the Veteran there had been no incapacitating episodes over the past 12 months requiring bedrest prescribed by a physician. While the Veteran has reported experiencing flare-ups requiring bed rest lasting one to two weeks on four to five occasions yearly, a requirement for assigning an evaluation for IDS under DC 5243 is that the bed rest must be prescribed by a physician or otherwise documented. Here, it is clear that the Veteran's use of bed rest is a self-administered remedy and it is neither alleged nor shown that the bed rest was prescribed by a physician or that the need for bed rest is documented. Therefore, a rating in excess of 20 percent under the Formula for Rating IDS Based on Incapacitating Episodes is not warranted. As directed by Note (1) of the General Rating Formula, the Board must consider whether the Veteran's back lumbar spine results in any associated objective neurologic abnormalities such that a separate rating is warranted. However, the Board notes that the Veteran is already service connected for radiculopathy of the bilateral lower extremities. Significantly, the November 2013 Board decision denied an increased rating for these disabilities and the Veteran has not appealed this decision. Also, he has no impairment of his bowels or bladder due to neurologic dysfunction from IDS. Significantly, both the December 2012 and October 2015 VA examination reports were negative for additional neurologic abnormalities related to the lumbar spine disability (such as bowel or bladder problems/pathologic reflexes). Significantly, a review of the record shows that the Veteran experiences urinary symptoms which are due to nonservice-connected benign prostatic hypertrophy and his now service-connected, and separately rated, constipation is due to medication for his low back disorder. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his back disability and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability rating that has been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the Veteran's lumbar spine disability. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of his service-connected back disability. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected lumbar spine disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. V. Extra-schedular Analysis The Board has also contemplated whether the case should be referred for consideration of an extra-schedular rating. An extra-schedular disability rating is warranted 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 that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected lumbar spine disability with the established criteria found in the rating schedule. The Board finds that this disability is fully addressed by the rating criteria under which such are rated. In short, the specific diagnostic criteria adequately address the whole of the Veteran's symptoms referable to his service-connected lumbar spine disability and there are no additional symptoms. In this regard, a wide range of signs and symptoms are contemplated in the applicable rating criteria for the Veteran's lumbar spine disability. This service-connected disorder requires application of the holding in Deluca, supra, and Mitchell, supra, which, in turn, requires consideration of 38 C.F.R. §§ 4.40 and 4.45. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion. As such, in the instant case, the Veteran's assigned rating contemplates his functional loss, to include limited range of motion, as a result of his lumbar spine symptomatology. Furthermore, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific rated disability. The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected lumbar spine disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and, therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. During the course of the Veteran's claim, a claim for TDIU was considered and denied by the Board in October 2014. He did not perfect and appeal of that denial. Such adjudication reflects the permissive bifurcation of the increased rating claim from the TDIU claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that "it was not inappropriate" for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim). Moreover, while acknowledging the Rice decision, in Locklear v. Shinseki, 24 Vet. App. 311 (2011), the Court held that it is permissive for VA to address a claim for TDIU independently of other claims, including increased rating and service connection claims. Id. at 315. Given the foregoing, the Board concludes that the TDIU claim was separately adjudicated and not perfected for appellate review. Accordingly, the Board does not have jurisdiction over the claim and need not refer or remand the matter. The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's increased rating claim for his lumbar spine disability. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his increased rating claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 20 percent for lumbosacral DDD with L4 wedging is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs