Citation Nr: 1613249 Decision Date: 03/31/16 Archive Date: 04/25/16 Citation Nr: 1613249 Decision Date: 03/31/16 Archive Date: 04/07/16 DOCKET NO. 08-12 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for a chronic low back strain, prior to March 24, 2012. 2. Entitlement to a disability evaluation in excess of 20 percent for a chronic low back strain, beginning March 24, 2012. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1983 to February 1986, September 1990 to June 1991, and February 2003 to April 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia and a March 2014 rating decision issued by the VA RO in Montgomery, Alabama. Jurisdiction for all issues on appeal is now with the VA RO in Montgomery, Alabama. In December 2014, the Board continued the above disability ratings for the Veteran's low back disorder, and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). Based on a November 2015 Joint Motion for Partial Remand, the Court remanded the case for re-adjudication. VACATE VA regulations provide that the Board may vacate an appellate decision at any time upon the request of the Veteran or his representative or on the Board's own motion when there has been a denial of due process. 38 C.F.R. § 20.904(a) (2015). In December 2014, the Board denied the Veteran's claims of entitlement a disability evaluation in excess of 10 percent for a chronic low back strain, prior to March 24, 2012, and in excess of 20 percent for a chronic low back strain, beginning March 24, 2012. The Veteran then appealed to the Court. Based on a November 2015 Amended Joint Motion for Remand, the Court remanded the case for re-adjudication in compliance with directives specified. In order to prevent prejudice to the Veteran, that part of the Board's December 2014 decision that denied the Veteran's claims of entitlement a disability evaluation in excess of 10 percent for a chronic low back strain, prior to March 24, 2012, and in excess of 20 percent for a chronic low back strain, beginning March 24, 2012, is vacated and a new decision as to those issues will be entered as if that part of the December 2014 decision had never been issued. REMAND The Veteran must be afforded a new VA examination and an opinion that adequately addresses whether he experienced additional functional loss during flare-ups must be obtained. The examiner must provide an opinion if any additional functional loss is found on the additional range-of-motion lost due to functional impairment or otherwise explain why such information could not feasibly be determined. Mitchell, 25 Vet. App. at 44; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Moreover, the VA examiner must also provide retrospective medical opinions to determine the Veteran's degree of functional ability during flare-ups of his service-connected back at the times of the March 2012 and February 2014 VA examinations. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past). VA is required to consider entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) when a veteran seeks an increased rating for a service-connected disability if TDIU is expressly raised by the veteran or raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case, the Veteran filed a notice of disagreement with the assigned ratings for his back in February 2007, and in April 2013, he filed a claim for TDIU due to, in part, his service-connected back. In March 2014, while the increased rating claim was pending, the RO denied entitlement to TDIU in a March 2014 rating decision. Therefore, TDIU is part and parcel of the claim for increased ratings for the Veteran's low back disorder and remains pending. See VA Fast Letter 13-13 (June 17, 2013). As a statement of the case addressing TDIU has not yet been furnished to the Veteran, the Board must remand the issue of entitlement to TDIU to the RO so that the Veteran may be provided with a statement of the case. Id.; see also Manlincon v. West, 12 Vet. App. 238, 240 (1999). The Veteran's electronic claims file contains a January 2012 letter to the Veteran from the Social Security Administration (SSA) indicating that the SSA issued a fully favorable decision on the Veteran's application for disability insurance benefits, however, the Veteran's complete SSA records are not associated with the evidence of record. On remand, the RO must obtain those records. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (finding that where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Finally, on remand, the RO must also obtain and associate with the electronic record all VA treatment records from August 2014 to the present. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of the Veteran's response, the RO must request: * all outstanding VA treatment records from August 2014 to the present; and * the Veteran's complete disability records from the Social Security Administration. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. With regard to the Veteran's claim for entitlement to TDIU, the RO must issue a statement of the case and notify the Veteran of his appellate rights with regard to the denial of that issue. 38 C.F.R. § 19.26 (2015). 3. The Veteran must be afforded VA spine and neurological examinations to determine the current severity of his service-connected low back disability and any associated neurological disabilities. The electronic claims file must be made available to the examiner, to include a copy of this remand. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the Veteran's service-connected low back. Specifically: * The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. * If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. * The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must state: * The extent to which the Veteran experiences functional impairment, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. * The examiner must specifically discuss functional loss during flare-ups and provide an opinion on the degree of additional range-of-motion loss. If the examiner is unable to provide an opinion in terms of loss of range-of-motion, he or she must explain why such detail feasibly could not be determined. The examiner must be informed that objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected low back. Finally, the examiner must thoroughly review all the VA and private treatment records, and any records received from the Social Security Administration, as well as the March 2012 and February 2014 VA spine examinations. Following a review of those records, and with consideration of the Veteran's lay statements, the examiner must provide retrospective medical opinions regarding functional loss the Veteran experienced during flare-ups of his low back. Specifically, the examiner must state: * Whether functional loss during flare-ups at the time of the March 2012 VA examination caused additional range-of-motion loss and, if so, the examiner must specifically opine on the degree of additional range-of-motion loss. If the examiner is unable to provide this opinion, he or she must explain why such detail feasibly could not be determined. * Whether functional loss during flare-ups at the time of the February 2014 VA examination caused additional range-of-motion loss and, if so, the examiner must specifically opine on the degree of additional range-of-motion loss. If the examiner is unable to provide this opinion, he or she must explain why such detail feasibly could not be determined. For each opinion rendered, the examiner must explain what evidence the determination is based on. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. In order to avoid an additional remand, the examination report must be reviewed by the RO to ensure that it is in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). Citation Nr: 1454230 Decision Date: 12/09/14 Archive Date: 12/16/14 DOCKET NO. 08-12 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for a chronic low back strain, prior to March 24, 2012. 2. Entitlement to an evaluation in excess of 20 percent for a chronic low back strain, beginning March 24, 2012. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1983 to February 1986, September 1990 to June 1991, and February 2003 to April 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. FINDINGS OF FACT 1. For the period prior to March 24, 2012, the Veteran's service-connected chronic low back strain was manifested by x-ray evidence of arthritis, pain, tenderness, weakness, muscle spasms, positive straight leg tests, guarding, limitation of forward flexion no less than 80 degrees, and combined range of motion of the thoracolumbar spine no less than 230 degrees; incapacitating episodes were not show and gait was normal. 2. For the period beginning March 24, 2012, the Veteran's service-connected chronic low back strain was manifested by x-ray evidence of arthritis, pain, tenderness, weakness, positive straight leg tests, and limitation of forward flexion no less than 40 degrees; ankylosis was not shown and gait was normal. 3. The Veteran's low back disorder was manifested by a neurological manifestations of the right lower extremity diagnosed as radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to March 24, 2012, for a chronic low back strain are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2014). 2. The criteria for a rating in excess of 20 percent beginning March 24, 2012, for a chronic low back strain are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2014). 3. The criteria for a separate rating for radiculopathy of the right lower extremity are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.310(a), 4.71a, Note (1), 4.124a, Diagnostic Code 8520 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). The RO's September 2006 letter to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. Additionally, the September 2006 letter notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disabilities and the different types of evidence available to substantiate his claim for a higher rating. Moreover, this letter informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening affected his employment. For these reasons, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the December 2006, February 2008, March 2012, and February 2014 VA examiners took into account the Veteran's statements and treatment records, which allowed for fully-informed evaluations of the claimed disability. Id. In April 2014, the Board remanded the matter so that the RO could consider, in the first instance, additional evidence received in this case and adjudicate all periods on appeal. As these actions were completed by the RO in an August 2014 supplemental statement of the case, the Board finds that there has been substantial compliance with the April 2014 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 556 U.S. 369 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2014). The Veteran contends his service-connected chronic low back strain is more severe than what is reflected by the ratings currently assigned. Service connection for a low back disability was granted in an April 2005 rating decision, and a 10 percent evaluation was assigned, effective April 30, 2004. In July 2006, the Veteran submitted the current claim for an increased evaluation for his chronic low back strain. In an October 2012 rating decision, the RO assigned a 20 percent evaluation for the Veteran's low back disability, beginning March 24, 2012. Because the increase in the evaluation of the Veteran's back disorder does not represent the highest possible evaluation available for this disorder during the appeal period, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). All service-connected spine disabilities are rated pursuant to The General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The General Rating Formula states that a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent disability 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, General Rating Formula. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Id. Associated objective neurologic abnormalities are rated separately under an appropriate diagnostic code. Id. at Note (1). 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. Id. at Note (2). 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. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The Incapacitating Episodes Rating Formula provides for a 10 percent rating with evidence of incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating requires evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula. An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires treatment and bed rest prescribed by a physician. Id. at Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. Id. at Note (2). Factual Background and Analysis In a June 2007 statement in support of his claim, the Veteran asserted that his increased back pain made it difficult to bend at the waist, sleep, move about in the morning, and have sex. In a November 2007 statement, the Veteran noted difficulty standing for any length of time due to his back disorder. In the Veteran's November 2011 hearing before the Board, he testified that his pain was precipitated by standing for long periods of time and sleeping on his side, and that his sleep quality was affected. The Veteran sought treatment from an orthopedic doctor, G.H., M.D. for his low back pain. A March 2006 physical examination revealed soft left sciatica, with tenderness over the sciatic nerve and a negative straight leg test. Dr. G.H. diagnosed osteoarthritis of the spine, particularly at L5-S1; left mild sciatica; and mild to moderate degenerative disc disease of the thoracolumbar spine at the thoracolumbar junction. An April 2006 magnetic resonance imaging (MRI) of the Veteran's back revealed spondylosis at L4-L5 and L5-S1, with a small disc bulge and intermittent left mild sciatica. An April 2006 examination revealed no motor weakness or sensory abnormalities. In October 2006, the Veteran stated he was "doing about the same" and reported having intermittent back pain. An October 2006 examination revealed no muscle weakness and a negative straight leg test; Dr. G.H. noted that the Veteran walked with a normal gait and sat comfortably. At the time of a December 2006 VA examination, the Veteran reported moderately intense, intermittent back pain, with continuous soreness, stiffness, and weakness. He also reported bladder frequency but stated he was unsure if it was due to his back. He reported experiencing flare-ups of his back one to two times per month lasting all day and causing a 75 percent limitation of motion and function. He identified the effects of his disability on his activities of daily of living as difficulty putting on his socks and an inability to participate in recreational activities or walk long distances without pain. He did not report any problems at his job as a corrections officer due to his back pain. The Veteran denied periods of incapacitation or bed rest in the past 12 months. On physical examination, forward flexion was from 0 to 80 degrees, with limitation due to moderate pain; extension from 0 to 30 degrees, with limitation due to moderate pain; left and right lateral flexion from 0 to 30 degrees, with limitation due to moderate pain; left lateral rotation from 0 to 30 degrees, with limitation due to severe pain; and right lateral rotation from 0 to 30 degrees, with limitation due to moderate pain. The Veteran was unable to demonstrate repeated use due to moderate pain. The examiner found no deformities of the spine and noted the Veteran presented with an erect posture and steady gait. The examiner noted a positive straight leg test and an otherwise normal neurological examination. An x-ray of the spine was normal. The examiner diagnosed a lumbar strain. In February 2007, the Veteran began seeing a neurologist, W.H., M.D. Dr. W.H. performed motor and sensory nerve conduction studies of the lower extremities, which were normal. An electromyography test was abnormal due to chronic, mildly active left S1 sacral radiculopathy. Dr. W.H. recommended physical therapy, which the Veteran attended in June and July 2007. Additional records from Dr. W.H. dated March and April 2007 fail to show any additional neurological impairment attributable to the Veteran's low back strain. At a February 2008 VA examination, the Veteran stated he had dull aching pain in his lumbar area daily, with throbbing radiating pain in his left leg. He also reported fatigue, decreased motion, stiffness, weakness, and spasms. He denied any bladder or bowel disturbances. He noted severe, weekly flare-ups lasting for hours, which were precipitated by prolonged sitting or lying down and cutting his grass. He reported that flare-ups prevented him from doing just about everything, including going to work and doing household chores. The Veteran reported he lost four weeks from work in the past 12 months due to his low back condition. On physical examination, the Veteran's initial range of motion of forward flexion was measured from 0 to 90 degrees, with no pain on motion; extension was from 0 to 29 degrees, with painful motion beginning at 29 degrees; right and left lateral flexion were from 0 to 30 degrees, with no pain on motion; and right and left lateral rotation were from 0 to 30 degrees, with no pain on motion. Range of motion on repetitive use for extension was from 0 to 27 degrees due to pain. The examiner noted pain on motion, bilateral tenderness, and guarding of the thoracic spine that was not severe enough to cause an abnormal gait or spinal contour. The Veteran's posture was normal and there was no ankylosis. The Veteran's straight leg test was positive on the left side and neurological testing revealed decreased sensation for the left lower extremity; no additional neurological impairments were noted. The Veteran returned to Dr. W.H. in July 2009 reporting worsening back pain, with pain distribution down his left lower extremity. The straight leg test was positive for the left lower extremity, with a normal gait. The neurological examination was otherwise normal, and the Veteran did not report any additional neurological impairments. During an August 2009 VA medical consultation, the Veteran reported experiencing constant pain in his low back that affected his sleep, mood, general activity, work, and ability to concentrate. He requested a mattress and a back brace to help with his low back pain. The Veteran's straight leg test was negative. The Veteran saw two different examiners at this time; one noted worsening lumbago and the other gave a diagnosis of a bulging disc. The Veteran presented for a VA physical therapy consultation in October 2009 and was issued a transcutaneous electrical nerve stimulation unit, thermophore heating pad, and home exercise program for pain management. The Veteran sought additional treatment with Dr. W.H. from December 2009 to March 2011 for his low back pain and to receive injections in the left sciatic nerve to treat his left lower extremity radiculopathy. A March 2011 examination revealed a positive straight leg test for the right leg. In July 2011, Dr. W.H. diagnosed right lumbosacral radiculopathy. A November 2011 treatment note from Dr. W.H. documented that the Veteran's low back pain progressed since his first visit in 2007. The Veteran received injections in his right sciatic nerve in July and November 2011 as treatment for his right lower extremity radiculopathy. The Veteran continued to seek treatment from Dr. W.H. for his low back pain and bilateral radiculopathy in January and March 2012. In December 2011, the Veteran returned to Dr. G.H. twice for his low back pain and his right leg symptomatology, which he reported began the previous month. Physical examinations revealed right equal to or greater than left leg sciatica, positive straight leg tests, and pain in the L5-S1 nerve root. A MRI revealed right annual tear at L4-L5 and lateral disc protrusion consistent with the Veteran's clinical symptoms. No additional neurological impairments were found. The Veteran returned to Dr. G.H. for treatment in January 2012, which revealed mild decreased range of motion of the spine. At a VA examination in March 2012, the Veteran reported flare-ups when standing for greater than 15 minutes, twisting his torso, missing steps, or driving over bad bumps in the road. On physical examination, the initial range of motion of forward flexion was measured to 50 degrees, with painful motion at 40 degrees; extension was to 10 degrees, with painful motion at 10 degrees; right lateral flexion was to 25 degrees, with painful motion at 15 degrees; left lateral flexion was to 20 degrees, with painful motion at 15 degrees; right lateral rotation was to 30 degrees, with painful motion at 25 degrees; and left lateral rotation was to 25, with painful motion at 20 degrees. After repetitive use, the range of motion for forward flexion was to 40 degrees; extension was to 10 degrees; right and left lateral flexion were to 15 degrees; and right and left lateral rotation were to 20 degrees. The examiner documented that repetitive use contributed to functional loss and/or impairment of the spine and noted less movement than normal, excess fatigability, and pain on movement. Neurological examination revealed normal muscle strength, deep tendon reflexes, and sensory findings for the both right and left lower extremities. There was no evidence of guarding or muscle spasms of the thoracolumbar spine, the Veteran's gait was normal, and straight leg tests were negative. The examiner documented symptoms of moderate left lower extremity radiculopathy. At the Veteran's most recent VA examination in February 2014, the Veteran reported daily moderate to severe pain in his left lower back, with radiating pain and numbness to the right leg and foot. He stated his radiculopathy aggravated him one to two times a week. He reported experiencing flare-ups where his back went out and he had to remain sedentary for a day. He noted incapacitating episodes about twice a year. He identified the effects of his disability on his daily activities as not being able to walk long distances or stand for prolonged periods of time without pain, difficulty climbing stairs, and not being able to lift more than 40 pounds. On physical examination, the initial range of motion of forward flexion was measured to 75 degrees, with painful motion noted at 75 degrees; extension was to 20 degrees, with painful motion at 20 degrees; right lateral and left lateral flexion were to 20 degrees, with painful motion at 20 degrees; and right lateral and left lateral rotation were to 20 degrees, with painful motion at 20 degrees. After repetitive use, the Veteran's range of motion for forward flexion was to 75 degrees; extension was to 20 degrees; right and left lateral flexion were to 20 degrees; and right and left lateral rotation were to 20 degrees. The examiner described the Veteran's functional loss/impairment following repetitive use as less movement than normal and pain on movement. The examiner found tenderness or pain to palpation for the joints and/or soft tissue in the low mid back area and muscle spasms not resulting in an abnormal gait. There was no guarding. Muscle strength, reflex, and sensory testing were normal. The examiner documented moderate right lower extremity radiculopathy, with involvement of the femoral and sciatic nerves. The examiner noted moderate intermittent pain, numbness, and tingling in the Veteran's right lower extremity. There were no additional neurological abnormalities present. There was no ankylosis of the spine. Intervertebral disc syndrome was present, causing the Veteran an incapacitating episode having a total duration of at least one week, but less than two weeks, during the past 12 months. The VA examiner concluded that the Veteran was unemployable for physical employment only, due to herniated discs in two areas of the spine, which caused a level of severe pain and affected his ability to perform physically. The examiner diagnosed degenerative joint disease of the lumbar spine, a herniated lumbar, and right lumbar radiculopathy at L4-5 and L5-S1. Prior to March 24, 2012 The evidence of record prior to March 24, 2012, does not show that a disability rating in excess of 10 percent is warranted for the Veteran's chronic low back strain. Although the Veteran reported during his December 2006 examination that he experienced a 75 percent limitation of motion and function during flare-ups, the objective evidence for the period prior to March 24, 2012, demonstrates otherwise. The December 2006 examination revealed the Veteran's forward flexion was to 80 degrees, and the February 2008 examination revealed the Veteran's forward flexion was to 90 degrees, with no limitation of motion due to pain on repetitive use testing. 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. The evidence includes the Veteran's complaints of low back pain, stiffness, weakness, soreness, and weekly flare-ups. However, even accounting for the limitations of his lumbar spine range of motion due to pain and stiffness, the Veteran's range of motion did not meet the criteria for a rating in excess of 10 percent. 38 C.F.R. § 4.71a, General Rating Formula. Although the Veteran was unable to perform repetitive testing in the December 2006 examination, he was able to flex to 80 degrees, and during the February 2008 VA examination, he demonstrated flexion to 90 degrees, which was not reduced due to pain on repetitive motion. During this period of time, there is no evidence demonstrating that forward flexion is limited to 60 degrees or less, which is required for a 20 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011) (noting that although pain may cause a functional loss, pain itself does not constitute functional loss). The Board finds that the currently assigned 10 percent rating contemplates any additional impairment due to pain. There is also no evidence of muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. While the February 2008 examiner documented evidence of guarding, the examiner noted the Veteran's gait was normal. Further, there was no evidence of ankylosis of the spine. Additionally, prior to March 24, 2012, the Veteran did not report, nor does the medical evidence suggest, that he experienced incapacitating episodes with physician prescribed bed rest having a total duration of two weeks or more during a 12 month period to warrant an increase to a higher rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. While the Veteran reported during his February 2008 examination that he lost four weeks from work in the past 12 months due to his low back disorder, the record is silent for evidence that a physician ordered him confined to bed rest for those four weeks, or for any time at all. Accordingly, a rating in excess of 10 percent for the Veteran's service-connected low back disorder prior to March 24, 2012, is not warranted. The preponderance of evidence is against entitlement to a disability rating in excess of 10 percent prior to March 24, 2012, for the Veteran's low back disorder. Accordingly, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Beginning March 24, 2012 For the period of time beginning March 24, 2012, the evidence does not show that the Veteran's service-connected chronic low back strain resulted in symptoms which meet the criteria for the assignment of a disability rating in excess of 20 percent. In order to receive a 40 percent disability rating, there must be evidence of forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. In this case, the medical evidence of record shows that the Veteran demonstrated thoracolumbar flexion to at least 40 degrees during this time period, to include with pain. Further, there is no evidence of record that the Veteran has ankylosis of the thoracolumbar spine. 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. The evidence includes the Veteran's complaints of low back pain, stiffness, weakness, soreness, and weekly flare-ups. However, even accounting for the limitations of his lumbar spine range of motion due to pain and stiffness, the Veteran's range of motion did not meet the criteria for a rating in excess of 20 percent for his service-connected back disorder. The Board finds that the currently assigned 20 percent rating contemplates any additional impairment due to pain. Additionally, a rating in excess of 20 percent is not warranted for intervertebral disc syndrome. 38 C.F.R. § 4.71a, Incapacitating Episodes Rating Formula. Although the February 2014 examiner noted incapacitating episodes having a total of more than one week but less than two weeks during the preceding 12 months, the regulations for a higher rating of 40 percent require incapacitating episodes having a total duration of at least four weeks, but not less than six weeks during the preceding 12 months. Id. The preponderance of evidence is against entitlement to a disability rating in excess of 20 percent beginning March 24, 2012, for the Veteran's low back disorder. Accordingly, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neurological Considerations The Board has also considered whether a separate evaluation is warranted for any neurological component of the Veteran's lumbar spine disorder during both periods on appeal. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Notably, an October 2012 rating decision granted a separate evaluation for the Veteran's left lower extremity radiculopathy, as a neurological manifestation associated with the service-connected low back disability, beginning March 24, 2012. Id.; 38 C.F.R. § 4.124a, Diagnostic Code 8520; see also 38 C.F.R. § 3.310(a). The Veteran did not perfect an appeal with respect to this issue, and therefore, that decision is final and is not currently before the Board. 38 U.S.C.A. § 7105 (West 2002). The objective evidence shows that a separate rating is also warranted for neurological impairments of the right lower extremity attributable to the Veteran's service-connected low back strain. The applicable rating criteria are stated under Diagnostic Code 8520, concerning the evaluation of sciatic nerve paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. Private medical evidence shows that the Veteran demonstrated positive straight leg raises on the right leg in March 2011, July 2011, November 2011, December 2011, January 2012, March 2012, and February 2014 and was assessed with radiculopathy of the right lower extremity, with involvement of the sciatic nerve, by Dr. W.H. in July 2011. He received injections in his right sciatic nerve to treat his right lower extremity radiculopathy in July and November 2011. Subsequent treatment by Dr. W.H. in January and March 2012 did not require right sciatic nerve injections. The first diagnosis of right lower extremity radiculopathy was in July 2011, and the Veteran began complaining about numbness and tingling in his right lower extremity in November 2011. In December 2011, his right lower extremity radiculopathy was characterized as "mild." The February 2014 VA examiner noted the Veteran's right lower extremity radiculopathy was "moderate" in nature, and that his symptoms were "moderate." Accordingly, the Veteran is entitled to a separate compensable rating for right lumbosacral radiculopathy. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1); 38 C.F.R. § 4.124a, Diagnostic Code 8520; see also 38 C.F.R. § 3.310(a). The Board has also considered whether separate ratings are warranted for any additional neurological impairment attributed to the Veteran's low back strain. The Veteran reported weakness in his bladder during the December 2006 VA examination, however, the VA examiner did not note objective evidence of any bladder impairments due to the Veteran's low back strain. Subsequent VA examinations failed to show bowel or bladder impairments or any additional neurological abnormalities. The Veteran has not reported and there is no objective evidence of any additional neurological impairment that are attributable to his low back disorder. Additional Considerations In this case, the Veteran's statements are competent evidence as to his symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). His statements are not competent evidence to identify a specific level of disability relating his low back disability to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's 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 Veteran's statements and clinical evaluations. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is evaluated. The Board finds that the objective medical evidence of record is more probative than the Veteran's statements. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2014). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where a rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2014). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected low back pain was evaluated as a disease or injury of the spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243, the criteria of which are found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. Prior to March 24, 2012, the Veteran's low back disorder was manifested by pain; forward flexion from 0 degrees to between 80 and 90 degrees; and a combined range of motion for the thoracolumbar spine was between 230 and 237 degrees. Although there was evidence of guarding and muscle spasms, the Veteran's gait was normal; there were no incapacitating episodes. Beginning March 24, 2012, the Veteran's low back disorder was manifested by pain; forward flexion from between 40 and 75 degrees; and a combined range of motion for the thoracolumbar spine was between 125 and 175 degrees. There was no ankylosis, and although the Veteran reported incapacitating episodes, they did not have a total duration of at least four weeks, which is the minimum duration required for a higher 40 percent rating. Moreover, a separate evaluation for left lower extremity radiculopathy was granted in an October 2012 rating decision, and a separate evaluation for right lower extremity radiculopathy has been granted herein. Moreover, the evidence does not indicate there were any additional neurological impairment. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 10 percent disability rating prior to March 24, 2012, and a 20 percent disability rating beginning March 24, 2012. Evaluations in excess of the assigned ratings are provided for certain manifestations of low back pain, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for 10 percent and 20 percent ratings reasonably describe the Veteran's disability levels and symptomatology during the periods on appeal. Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, the Board has considered a claim for a total disability rating based on individual employability (TDIU) due to the Veteran's back disorder. Rice v. Shinseki, 22 Vet. App. 447 (2009). A March 2014 rating decision denied the Veteran's claim for TDIU as due to his service-connected disorders. As the Veteran has not yet filed a notice of disagreement, entitlement to TDIU is not currently before the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2014). ORDER A disability rating in excess of 10 percent for a chronic low back strain prior to March 24, 2014, is denied. A disability rating in excess of 20 percent for a chronic low back strain beginning March 24, 2014, is denied. A separate compensable evaluation for right leg radiculopathy as a neurological manifestation of the Veteran's service-connected low back strain is warranted, subject to applicable laws and regulations governing the award of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs