Citation Nr: 1615431 Decision Date: 04/15/16 Archive Date: 04/26/16 DOCKET NO. 06-09 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for a low back syndrome with strain, currently evaluated as 10 percent disabling, prior to June 14, 2007. 2. Entitlement to an increased rating for a low back syndrome with strain, currently evaluated as 20 percent disabling, on or after June 14, 2007. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that decision, the RO denied an increased evaluation for the Veteran's service-connected low back disability and continued a 10 percent evaluation. During the pendency of the appeal, in August 2007, the RO increased the evaluation for the service-connected low back disability to 20 percent, effective from June 14, 2007. The Veteran continued to disagree with the assigned rating, and he also challenged the effective date for the assignment of the 20 percent evaluation. In May 2009, the Board denied an increased rating for the service-connected low back disability both before and after June 14, 2007. The Board also denied an effective date earlier than June 14, 2007, for the 20 percent rating. The Veteran appealed the Board's May 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court issued a memorandum decision vacating and remanding the portion of the Board's decision that denied an increased rating for the Veteran's service-connected low back disability before, on, and after June 14, 2007. The issue of entitlement to an effective date earlier than June 14, 2007, for the assignment of a 20 percent rating for the low back disability was deemed abandoned. The Board subsequently remanded the case in November 2011, October 2012, September 2013, and May 2014, in attempt to comply with the Court's June 2011 memorandum decision. The case was subsequently returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. A review of the documents in the Virtual VA file reveals additional VA treatment notes that have been considered by the AOJ in supplemental statements of the case (SSOCs). 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). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 14, 2007, the Veteran's low back disability did not cause limitation of flexion of the thoracolumbar spine between 30 and 60 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees, and there was no muscle spasm or guarding due to the low back disability. 2. Since June 14, 2007, the Veteran's low back disability was not productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less or ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for lumbosacral strain prior to June 14, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5237 (2015). 2. The criteria for an evaluation in excess of 20 percent for lumbosacral strain on or after June 14, 2007, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5237 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and, (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, supra. Notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id. at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The RO provided the Veteran with notification letters in February 2005 and January 2007. Therefore, the requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the letters notified him of the evidence needed to substantiate his claims for an increased evaluation. The letters also informed the Veteran of the division of responsibilities in obtaining the evidence to support his claim and explained how disability ratings and effective dates are determined. Thus, VA's duty to notify has been satisfied. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and all identified and available post-service medical records, including VA treatment records and Social Security Administration (SSA) records, have been associated with the claims file and were reviewed by both the RO and the Board in connection with the claim. In a December 2011 statement, the Veteran specifically reported that he had not received private treatment for his low back disability. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination, and fully address the rating criteria that are relevant to rating the disability in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected low back disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). With regard to the Board's remands dated in November 2011, October 2012, September 2013, and May 2014, the Board finds that the AOJ has substantially complied with the directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Specifically, pursuant to the remands, the AOJ obtained outstanding VA treatment records and SSA records and associated them with the electronic claims file. In addition, the AOJ provided the Veteran with adequate VA examinations that detailed the current severity and manifestations of his service-connected low back disability. With respect to the VA examinations, the Board notes that, in the June 2011 memorandum decision, the Court vacated and remanded the portion of the Board's May 2009 decision that denied an increased rating for the Veteran's service-connected low back disability before, on, and after June 14, 2007. The Court determined that a June 2007 VA examination was inadequate due to a discrepancy in the examiner's opinion concerning functional limitation of the spine following repetitive use testing. Therefore, the Court remanded the case to the Board to obtain clarification from the June 2007 VA examiner as to whether pain from the Veteran's low back disability resulted in limitation of motion, and, if so, to what measurable degree. In November 2011, the Board remanded the claims to the AOJ for a VA examination. Although the Court only directed the Board to seek clarification from the VA examiner as to his opinion rendered in June 2007, the Board found that an additional VA examination was warranted because four years had passed since the June 2007 VA examination. In the remand directives, the Board requested that the claims file be returned to the June 2007 VA examiner, in part, to clarify his opinion, as required by the Court. If the examiner was unavailable, the AOJ was to provide the claims file to another physician of suitable background and experience for purposes of obtaining the requested clarification, if possible. Thereafter, the Veteran was afforded an examination by another VA provider in December 2011. However, the Veteran did not perform range of motion testing during the examination. In an October 2012 remand, the Board noted that the development sought in the previous remand had not been fully completed. Specifically, there was nothing in the record to indicate that any particular effort was made to contact the June 2007 VA examiner for clarification of his opinion, as requested. In addition, although the Veteran was afforded a new VA examination in December 2011, the examiner did not attempt to clarify, or otherwise comment upon, the portion of the June 2007 VA examination in question. The Board then remanded the case to the AOJ in order to return the claims file to the June 2007 VA examiner and obtain clarification of his opinion. The AOJ was directed to fully document all efforts to contact the VA examiner. If the examiner was unable to be contacted or was otherwise unavailable, the Board directed the AOJ to provide the claims file to another physician of suitable background and experience for purposes of obtaining the requested clarification. The Board also noted, "If the alternate physician is unable to provide the requested clarification without resort to speculation, he or she should provide an explanation as to why clarification of the [June] 2007 is not feasible." In June 2013, the remand directives were emailed to the June 2007 VA examiner. In response, the examiner stated, "A new referral will need to be submitted with a new examination as this claimant was examined almost 6 years ago. A new exam will be necessary to answer this question." A June 2013 email from the Appeals Management Center (AMC) noted that the June 2007 VA examiner was located in Atlanta, Georgia, and the Veteran was unable to travel there from Virginia Beach, Virginia, for an examination. Thereafter, the Veteran was afforded a VA examination in August 2013. The August 2013 VA examiner noted that the Veteran did not have additional limitation in range of motion of the lumbar spine following repetitive-use testing. However, she did not provide an opinion clarifying the discrepancies in the June 2007 VA examination report. Thereafter, the December 2011 VA examiner reviewed the August 2013 VA examination findings and noted that he concurred with the August 2013 VA examiner's findings, which were accurate and reflected the Veteran's current back condition. He did not provide the requested opinion clarifying the functional impairment of the Veteran's low back following repetitive use testing, and he did not provide an opinion as to the June 2007 VA examiner's findings. In September 2013, the Board remanded the case to the AOJ, in part, to obtain a clarifying opinion from the VA examiner who conducted the August 2013 VA examination, or, if she was unavailable, from another suitably qualified clinician, to determine whether the Veteran had intervertebral disc syndrome and to provide a full rationale for the opinion provided. The December 2011 VA examiner provided a VA opinion responsive to the remand directives. In his opinion, he opined that it was less likely as not that the Veteran had intervertebral disc syndrome, and he discussed x-ray evidence from 2011, 2012, and 2013 to support his opinion. In the September 2013 remand and in a May 2014 remand, the Board directed the AOJ to obtain a copy of the Veteran's SSA decision and the medical records used to make the determination. The AOJ obtained these records and associated them with the claims file in January 2015. As discussed in the remand portion below, the Board has determined that there is outstanding testimony from a vocational expert that was used in the April 2011 SSA decision awarding the Veteran SSA disability benefits. However, the Board has determined that those records are pertinent to the TDIU claim on appeal, and it would not be prejudicial to decide the increased rating claims on appeal without that testimony. In August 2015, the Veteran was afforded another VA examination. In that examination report, the December 2011 VA examiner noted that the Veteran was able to perform repetitive use testing and that there was no additional loss of function or range of motion of the lumbar spine following repetitive use testing. In addition, he opined that the Veteran did not have intervertebral disc syndrome. The August 2015 VA examiner also stated, "An opinion regarding if, when and to what extent, in degrees, further 'repetitive use' or reported 'flare-ups' could significantly limit functional ability, is not one with literature support, but instead based on clinical information including history and physical findings. More definitive loss of function, due to [flare-ups] cannot be determined without resorting to mere speculation." While the VA examiner did not specifically address the June 2007 VA examiner's findings and discuss the discrepancies in that report, in his August 2015 opinion, the December 2011 VA examiner noted that such an opinion would be speculative and he provided a rationale to support his determination. Therefore, the Board finds that the AOJ substantially complied with the remand directives. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim adjudicated herein. He has been given ample opportunity to present evidence and argument in support of his claims. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained, and the case is ready for appellate review. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the Veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's low back disability is currently assigned a 10 percent evaluation prior to June 14, 2007, and a 20 percent evaluation thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. Diagnostic Code 5237 indicates that a lumbosacral strain should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). The Veteran filed his claim for an increased rating in February 2005. VA treatment records dated from January 2005 to December 2011 show complaints of low back pain that the Veteran rated between five to eight out of ten in severity. During a March 2005 VA examination, the Veteran complained of thoracolumbar discomfort that was exacerbated with bending towards ambulating and standing or sitting for long periods of time. He noted near-constant recurrent symptomatology with pain levels that reached eight out of ten in severity. He described the pain as sharp with amelioration to a moderate degree with oral analgesics. He stated that he had lifting and range of motion limitations. An examination of the thoracolumbar spine showed no erythema, edema, or heat changes. The examiner noted that the Veteran had appreciable radiating pain on movement without muscle spasm or tenderness to palpation. Straight leg raise testing was negative bilaterally. There was no evidence of intervertebral disc syndrome. Range of motion testing revealed pain at 90 degrees of flexion, 25 degrees of extension, 20 degrees of right and left lateral flexion, and 20 degrees of right and left rotation. There was further limitation due to pain on repetitive motion, but there was no further limitation by fatigue, weakness, lack of endurance, or incoordination on repetitive motion. X-rays of the lumbosacral spine were negative for any findings. The examiner diagnosed the Veteran with intermittent symptomatic residuals of thoracolumbar strain with paraspinal tendinitis residuals without neurovascular association or intervertebral disc syndrome. In an April 2005 VA addendum, the March 2005 VA examiner indicated that, without resorting to mere speculation, he was unable to determine the additional functional limitation, in degrees, due to pain on repetitive motion testing. During a June 2007 VA examination, the Veteran indicated that he had stiffness, weakness, and constant pain in his low back. He rated his pain ten out of ten in severity. He noted that the pain was elicited by physical activity and relieved by rest. He reported that he was functionally limited due to pain with bending and lifting. He stated that he was able to function with medication during flare-ups of pain, and he denied any incapacitation due to his low back strain. An examination of the thoracolumbar spine showed no evidence of radiating pain on movement. There were no muscle spasms. There was tenderness at the lumbosacral junction. Straight leg raise testing was negative. There was no ankylosis of the lumbar spine. Range of motion testing revealed forward flexion to 50 degrees with pain at 30 degrees, extension to 20 degrees with pain at 10 degrees, right and left lateral flexion to 20 degrees with pain at 10 degrees, and right and left rotation to 20 degrees with pain at 10 degrees. Combined thoracolumbar range of motion was 100 degrees. The examiner noted that the joint function was additionally limited by pain after repetitive use. It was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. The examiner also noted that joint function was additionally limited by 0 degrees. He indicated that there were no signs of intervertebral disc syndrome. Lumbar spine x-ray findings were within normal limits. The examiner diagnosed the Veteran with low back syndrome with strain. He also noted that the Veteran reported that an inability to bend and lift precluded him from working. In a January 2010 SSA disability determination explanation, the Veteran indicated that it was difficult for him to get out of bed a lot of mornings and that he had difficulty standing due to his back muscles. He stated that his sleep was affected by his pain; he had some difficulty putting on his shoes; he performed household repairs, including mowing grass and painting; and he traveled by walking, riding a bike, driving, and taking public transportation. He related that he was able to lift 30 pounds for approximately 20 minutes and that he was able to walk for an hour before he had to sit. The SSA examiners noted that the Veteran's statements were only "partially credible." They indicated that, while the records showed a diagnosis of chronic back pain that was stable on examination, there was no indication of significant ability to move about. He was able to complete relatively full activities of daily living without assistance, and there was no indication of limitations in walking or standing. In an April 2011 SSA decision, an administrative law judge noted that the Veteran had a chronic back disorder, as well as other disabilities, that limited the Veteran's ability to perform the strength demands of basic work activities, including, but not limited to, lifting, carrying, and postural activities. The judge indicated that, at the initial application level, the Veteran alleged disability due to several impairments, including a muscle strain in his back that caused difficulty standing and bending. The judge also related that, during an April 2011 SSA hearing, the Veteran testified that his back pain had worsened in severity and that his daily activities were quite limited and that he spent a large portion of his day lying down. The judge determined that the Veteran had the residual functional capacity to perform light work, except he was unable to perform more than occasional postural activity. During a December 2011 VA examination, the Veteran complained of constant, aching, radiating back pain. He rated the pain eight out of ten in severity. He indicated that flare-ups of pain impacted the function of his thoracolumbar spine in cold weather. The Veteran refused to perform range of motion testing of the thoracolumbar spine. The examiner noted that the Veteran did not have localized tenderness or pain to palpation of the joints and/or soft tissues of the thoracolumbar spine. He also noted that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. Muscle strength testing revealed normal strength of the bilateral lower extremities. Straight leg raise testing was negative for both bilateral lower extremities. The VA examiner noted that the Veteran did not have intervertebral disc syndrome or incapacitating episodes. X-rays of the lumbosacral spine showed a slight to moderate left convex rotoscoliosis of the thoracolumbar spine with the apex at T12-L1, mild degenerative spurring of the opposing end plates of L2 through L4. The interpreting radiologist noted that the x-rays were unremarkable otherwise, and that there were no acute abnormalities. The VA examiner opined that the Veteran's thoracolumbar spine condition did not impact his ability to work. He noted that the Veteran undressed easily, crossed his legs, wore socks and shoes easily, sat easily, and bent his legs to dress and undress, despite reporting that he was unable to bend his back during the examination. The VA examiner reported that his examination indicated that the Veteran lacked cooperation during the examination; however, he opined that the Veteran's back problem was likely not worse and did not affect his employability. He indicated that a sedentary job would be suitable for the Veteran. The VA examiner diagnosed the Veteran with degenerative joint disease of the low back. During an August 2013 VA examination, the Veteran reported that he was unable to tie his shoes by bending over or turn his body by rotating fully. He rated his pain as nine out of ten in severity. He stated that flare-ups of pain impacted the function of his thoracolumbar spine by limiting chores, exercise, and sports. He also reported that he had increased absenteeism due to his low back pain when he was working. On range of motion testing, the Veteran demonstrated forward flexion to 60 degrees with objective evidence of painful motion beginning at 50 degrees; extension to 20 degrees with objective evidence of painful motion beginning at 15 degrees; right and left lateral flexion to 20 degrees with objective evidence of painful motion beginning at 15 degrees; and right and left lateral rotation to 20 degrees with objective evidence of painful motion beginning at 15 degrees. The Veteran was able to perform repetitive-use testing. After repetitive-use testing, he demonstrated forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees. The VA examiner noted that the Veteran did not have any additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. He indicated that the Veteran had functional loss and/or functional impairment of the thoracolumbar spine after repetitive-use testing due to weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. An examination of the Veteran's thoracolumbar spine revealed localized tenderness or pain to palpation of the joints and/or soft tissue of the thoracic or lumbar areas. There was also evidence of guarding and/or muscle spasms, but the examiner noted that it did not result in an abnormal gait or spinal contour. Muscle strength testing revealed active movement against some resistance with hip flexion and normal strength with knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. Straight leg raise testing was positive for both legs. The VA examiner noted that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. He also noted that the Veteran regularly used a wheelchair, cane, and walker to ambulate due to his back condition. X-rays of the Veteran's thoracolumbar spine showed mild levoscoliosis of the lumbar spine and multilevel endplate degenerative changes without significant change. There were no acute osseous findings. The VA examiner reported that the Veteran's thoracolumbar spine condition impacted his ability to work. He last worked seven years ago as a roofer. The examiner also opined that it would be pure speculation to state to what degree the Veteran's thoracolumbar spine would be affected with a flare-up or when the joint was repeatedly used over a period of time. In the August 2013 VA examination report, the December 2011 VA examiner noted that he reviewed the August 2013 VA examination findings. He noted that he concurred with the findings and felt that they were accurate and reflected the Veteran's current back condition. In a September 2013 VA addendum opinion, the December 2011 VA examiner opined that it was less likely as not that the Veteran had intervertebral disc syndrome. He noted that the Veteran's VA treatment notes failed to document any prescribed bed rest or severe back pain that necessitated limitation of activities or treatment. In addition, he indicated that, while rotoscoliosis, a lifelong condition, was noted on a 2011 x-ray, it was improved in more recent x-rays. In fact, he noted that x-rays in 2012 and 2013 revealed that the Veteran's disc spaces were well-maintained. VA treatment notes, dated from October 2013 to August 2015 indicate that the Veteran's back pain was stable. He specifically rated his pain as seven out of ten in severity in October 2013, January 2014, and April 2014. In August 2014, he rated his low back pain as eight out of ten in severity. In an August 2015 VA examination report, the VA examiner noted that the Veteran was diagnosed with lumbar thoracic spondylosis in the 1970's and scoliosis in 2013. During the examination, the Veteran reported that, since he was awarded 20 percent for his low back disability in 2013, nothing had changed and he continued to have back pain. He indicated that he appealed the decision because he needed more money, and he stated that his bills were higher. He rated his constant back pain eight out of ten in severity. He stated that he took medication once or twice per day to bring his pain to five or six out of ten in severity. He noted that his back was stiff in the morning when he woke, he was able to walk three blocks before stopping, and he was able to ride his bike. He also denied having any flare-ups of pain and any leg numbness or weakness. He denied difficulty getting dressed. Range of motion testing revealed forward flexion from 0 to 60 degrees, extension from 0 to 20 degrees, right and left lateral flexion from 0 to 30 degrees, and right and left lateral rotation from 0 to 20 degrees. The examiner indicated that there was no ankylosis of the spine. The examiner also noted that the Veteran demonstrated no pain on examination. The Veteran performed repetitive use testing, and there was no additional loss of function or range of motion following repetitive use. There was no evidence of guarding or muscle spasm of the thoracolumbar spine. Muscle strength testing of the bilateral lower extremities was normal. Straight leg testing was negative in both legs. The Veteran did not have any other neurologic abnormalities or findings related to his lumbar spine disability, such as bowel or bladder problems. The examiner noted that the Veteran did not have intervertebral disc syndrome. X-rays of the lumbosacral spine showed mild degenerative changes. The August 2015 VA examiner also stated, "An opinion regarding if, when and to what extent, in degrees, further 'repetitive use' or reported 'flare-ups' could significantly limit functional ability, is not one with literature support, but instead based on clinical information including history and physical findings. More definitive loss of function, due to [flare-ups] cannot be determined without resorting to mere speculation." In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to increased evaluations for his low back disability prior to, beginning on, or after June 14, 2007. The Board finds that, under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran's lumbar spine disability does not warrant a rating in excess of 10 percent prior to June 14, 2007. The only range of motion finding of record during the appeal period prior to June 14, 2007, showed forward flexion to 90 degrees during the March 2005 VA examination. The March 2005 VA examination revealed that the Veteran's low back disability did not cause flexion of the thoracolumbar spine to between 30 and 60 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees, and there was no muscle spasm or guarding due to the low back disability. Therefore, the preponderance of the evidence weighs against a finding that the Veteran warrants a rating in excess of 10 percent for the period prior to June 14, 2007, based on the General Rating Formula. The Board also finds that, under the rating criteria, the Veteran's lumbar spine disability does not warrant a rating in excess of 20 percent beginning on or after June 14, 2007. Beginning on June 14, 2007, the record as a whole shows a disability level consistent with forward flexion of the lumbar spine to 60 degrees. Specifically, during the June 2007 VA examination, the Veteran demonstrated forward flexion of the lumbar spine to 50 degrees with pain at 30 degrees; during the August 2013 VA examination, he demonstrated forward flexion to 60 degrees with pain at 50 degrees; and, during the August 2015 VA examination, he demonstrated forward flexion to 60 degrees without pain. In addition, since June 14, 2007, the Veteran did not have ankylosis of the entire thoracolumbar spine. In fact, the August 2015 VA examiner specifically stated that there was no ankylosis of the thoracolumbar spine. Therefore, the preponderance of the evidence is against a finding that the Veteran warrants a rating in excess of 20 percent for the period beginning on or after June 14, 2007 based on the General Rating Formula. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 and 20 percent ratings, and no higher. In this regard, the Board observes that the Veteran complained of pain and functional impairment on numerous occasions. While pain alone does not constitute functional loss, the Court has clearly indicated that the Board must consider the effects of pain, particularly as to any adverse impact on the normal working movements of the body such as excursion, strength, speed, coordination, and endurance; it is the presence of this functional loss that is the relevant question in assigning disability evaluations. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). However, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 10 and 20 percent evaluations, and the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Indeed, prior to June 14, 2007, the March 2005 VA examiner noted that, while there was further limitation due to pain on repetitive motion, there was no further limitation by fatigue, weakness, lack of endurance, or incoordination on repetitive motion. Even with pain, the Veteran still had 90 degrees on forward flexion of the lumbar spine. Since June 14, 2007, the question of functional impairment following repetitive motion was raised in the June 2007 VA examination report. In that report, the VA examiner noted that joint function was additionally limited by pain after repetitive use; however, he subsequently stated that joint function was additionally limited by 0 degrees. He also indicated that it was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. Moreover, even with pain, range of motion testing indicated that the Veteran still demonstrated forward flexion to 30 degrees. Thereafter, in December 2011, the VA examination report indicated that the Veteran refused to perform range of motion testing. During an August 2013 VA examination, the VA examiner determined that the Veteran did not have any additional limitation in range of motion of the thoracolumbar spine after repetitive-use testing. She opined that it would be pure speculation to state to what degree the Veteran's thoracolumbar spine would be affected with a flare-up or after the Veteran repeatedly used the joint over a period of time. In the August 2015 VA examination report, the examiner noted that the Veteran demonstrated no pain on examination. He also indicated that the Veteran performed repetitive use testing and that there was no additional loss of function or range of motion following repetitive use. He further opined that it would be speculative to provide an opinion regarding the functional limitations of further repetitive use or flare-ups pf pain. Regardless, the Board notes that the Veteran had no pain during the August 2015 VA examination, and he demonstrated forward flexion to 60 degrees. In fact, at no point during the period beginning on or after June 14, 2007, did the Veteran demonstrate forward flexion less than 30 degrees. In addition, there is no indication that the Veteran has had incapacitating episodes for a rating under the intervertebral disc syndrome rating criteria noted above at any point during the periods on appeal. There are no treatment records indicating that the Veteran was prescribed bed rest by any physician for his low back strain. In fact, the June 2007, December 2011, August 2013, and August 2015 VA examination reports each indicated that the Veteran did not have intervertebral disc disease or incapacitating episodes. In addition, in a September 2013 VA addendum opinion, the examiner opined that it was less likely as not that the Veteran had intervertebral disc syndrome. He noted that, although rotoscoliosis was noted in a 2011 x-ray, x-rays dated in 2012 and 2013 showed that the Veteran's disc spaces were well-maintained. As such, he has not been shown to have met the criteria for an increased evaluation under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board also notes that the Veteran is already in receipt of separate ratings for neurological abnormalities resulting from his lumbosacral strain. Indeed, he is service-connected for radiculopathy of both lower extremities. The evidence does not show, and he does not assert, that he has any other neurological abnormalities. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that increased ratings are warranted for the Veteran's low back disability prior to, beginning on, or after June 14, 2007; therefore, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's low back disability is so exceptional or unusual as to warrant the assignment of higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected low back disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, the Veteran's chief complaints, including pain and functional loss, are contemplated in the rating criteria. The Board notes that, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board finds that the schedular criteria reasonably describe the Veteran's disability picture in this case. Thus, it cannot be said that the available schedular evaluations for this disability are inadequate. There are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations, as discussed above. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected low back disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to an increased rating in excess of 10 percent for a lumbosacral strain prior to June 14, 2007, is denied. Entitlement to an increased rating in excess of 20 percent for a lumbosacral strain on or after June 14, 2007, is denied. REMAND The evidence of record shows that the Veteran receives SSA disability benefits based on a chronic back disorder, hypertension, diabetes mellitus, and hepatitis C. In January 2010 and April 2010 determinations, state disability examiners found that the restrictions from the Veteran's impairments did not prevent him from performing his past work as a roofer. In an April 2011 SSA decision, an administrative law judge determined that the Veteran's impairments and their symptoms limited his ability to perform the strength demands of basic work activities, including, but not limited to, lifting, carrying, and postural activities. The judge determined that the Veteran had the residual functional capacity to perform light work with no more than occasional postural activity. In her decision, the judge referenced testimony from a vocational expert; however, it does not appear that this testimony has been included in the records sent by SSA. Therefore, on remand, attempts should be made to obtain this testimony. The Board notes that, in August 2015, a VA examiner opined that the Veteran could work sedentary jobs without heavy lifting or repetitive bending due to his service-connected low back disability. However, in a February 2016 brief, the Veteran's representative asserted that the Veteran was unable to engage in substantial gainful activity. He argued that entitlement to TDIU should be "looked at in a practical matter, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits." Excepting the Veteran's SSA records, VA has not obtained an opinion that discussed the overall impact of the Veteran's service-connected disabilities on his ability to work. Therefore, the Board finds that obtaining a VA social and industrial survey would be helpful in this case. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should request a copy of the records upon which the April 2011 SSA decision was based and associate them with the claims file. Specifically, the records request should include any testimony from a vocational expert, R.S. (initials used for privacy), as referenced in the April 2011 SSA decision. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 2. The AOJ should schedule the Veteran for a VA social and industrial survey (field examination) by a VA social worker or other appropriate personnel. The social worker should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. The ultimate purpose of the VA social and industrial survey is to ascertain the combined impact of the Veteran's service-connected disabilities on his ability to work. The report should indicate how the Veteran's service-connected disabilities alone affect his employability. The report should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the claims folder. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraph. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of any additional evidence received. If the benefit sought is not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs