Citation Nr: 1632499 Decision Date: 08/16/16 Archive Date: 08/24/16 DOCKET NO. 10-09 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased disability rating in excess of 20 percent for intervertebral disc syndrome (previously rated as low back strain) prior to July 1, 2009, and an evaluation in excess of 40 percent beginning July 1, 2009. 2. Entitlement to a temporary total rating from December 10, 2008, until January 12, 2009, under the provisions of either 38 C.F.R. § 4.29 (2014) or 38 C.F.R. § 4.30 (2014). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to October 1998. This matter first came before the Board of Veterans' Appeals (Board) on appeal of rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Board remanded the issues on appeal to the agency of original jurisdiction (AOJ) for additional development. As the Board explained in the September 2013 remand, the Veteran's appeal arises from a claim which was first decided in the August 2008 rating decision. In the August 2008 rating decision, the RO granted an increased rating of 20 percent for residuals of a lower back strain. Then, in a July 2014 rating decision, the RO increased the evaluation for the service-connected disorder to 40 percent, effective on July 1, 2009. These staged ratings do not represent the maximum disability rating assignable for this disability, and the Veteran has not indicated that the current ratings are the maximum he is seeking. Because higher ratings are available, and because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the claim for a higher rating, as reflected on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). In a February 2010 rating decision, the RO denied entitlement to a temporary total rating. The Veteran testified before the undersigned Veterans Law Judge at a hearing held in July 2012. A transcript of this hearing is of record. Following the last adjudication of the case by the RO in a July 2014 supplemental statement of the case (SSOC), additional pertinent evidence was added to the claims file. The Veteran waived initial RO jurisdiction of this evidence in May 2016. Accordingly, this evidence is subject to initial consideration in this appeal. See 38 C.F.R. §§ 20.800; 20.1304(c) (2015). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been presented to the Board as a component of the rating claims now on appeal, and a TDIU claim is not otherwise presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is free to raise such a claim at any time, and the instant determination is in no way intended to represent a finding as to the merits of such a claim, if raised at any point. See 38 C.F.R. § 4.16 (2013); Suttmann v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for a TDIU, even if previously and finally denied, constitutes a new claim). FINDINGS OF FACT 1. Throughout the period of appellate review prior to July 1, 2009, the Veteran's intervertebral disc syndrome (previously rated as low back strain) is shown to have been productive of a disability picture involving functional effects of pain and other limitations affecting his daily life at work and home, but not a disability picture more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 2. Throughout the period of appellate review beginning July 1, 2009, the Veteran's intervertebral disc syndrome (previously rated as low back strain) is shown to have been productive of a disability picture involving functional effects of pain and other limitations affecting his daily life at work and home, but not a disability picture more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. Throughout the appeal period, the Veteran has complained of associated neurologic symptoms, including in the right lower extremity, but the more probative evidence, particularly a July 2014 VA examination, establishes that such symptomatology is not associated with the service-connected intervertebral disc syndrome (previously rated as low back strain). 4. During the time period from December 10, 2008, until January 12, 2009, the Veteran was not undergoing hospital treatment, was not convalescing from surgery, and was not immobilized by a cast. CONCLUSIONS OF LAW 1. The criteria for assignment of a disability rating in excess of 20 percent prior to July 1, 2009, and in excess of 40 percent beginning July 1, 2009, for intervertebral disc syndrome (previously rated as low back strain), are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a, 4.124a (2015). 2. The criteria for assignment of a temporary total disability rating for hospital treatment or observation under 38 C.F.R. § 4.29 or convalescence under § 4.30 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.29, 4.30 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist A. Duty to Notify VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was sent a comprehensive letter in June 2008, regarding the claim for increase, and October 2009, regarding the claim for a temporary total rating, which were sent prior to the respective August 2008 and February 2010 rating decisions on appeal. See 38 U.S.C.A. § 5103. A case-specific notice is not required and any other notice defect is deemed not prejudicial. See VAOPGCPREC 6-2014 (VA is authorized to provide notice under § 5103(a) before a claim is filed, including on the standard application forms); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied. B. Duty to Assist VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). VA has met the duty to assist the Veteran in the development of the claim being decided herein. His service treatment records have been obtained and appear to be complete. Also, all sufficiently identified VA treatment records during the appeal period are of record. The Veteran has not sufficiently identified any other VA medical records he desires to be obtained. Those private records the Veteran has authorized VA to obtain are of record. He did not identify and authorize VA to obtain any other relevant information. Furthermore, VA examinations have been conducted, most recently in July 2014, and they are adequate to inform the Board's judgment on those complex medical matters raised in this appeal. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2014). In this regard, the Board wishes to take notice of a call the Veteran made to the RO immediately after the July 2014 VA examination expressing concerns regarding the manner in which the July 2014 examination was conducted. The Veteran stated that the doctor who performed the examination spent 30 minutes at the outset of the examination chastising the Veteran about putting in claims. The Veteran also expressed concern regarding the manner in which the physical examination was conducted. The Board finds that his complaints, while reasonable, do not render the July 2014 VA examination results inadequate as it otherwise appears that the VA examiner accurately captured the Veteran's complaints and accurately measured the severity of the condition. Stated differently, it does not appear that the VA examiner's personal beliefs regarding the Veteran's claim interfered with the examination results. Moreover, the VA examiner is presumed to have conducted the physical examination competently. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir 2009); Hilkert v. West, 12 Vet. App. 145 (1999). There is no indication from the examination report itself that the examiner's evaluation was less than competent. See, e.g., Wise v. Shinseki¸ 26 Vet. App. 517 (2014). Accordingly, the VA examination appears adequate, and the Veteran's concerns do not provide a basis for remanding to obtain a new VA examination. Otherwise, there is no indication that his symptoms have materially increased in severity since the last VA examination conducted for the disability. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the evidentiary record appears to be complete. C. Stegall Compliance The Board also finds that there was substantial compliance with the September 2013 Board remand directives. Specifically, the Veteran was sent a letter in October 2013 asking that he identify and authorize VA to obtain records from any health care providers having additional treatment records pertinent to his appeal. This same letter, pursuant to the Board's remand, invited the Veteran to submit any medical statements submitted to his employer, to include any requests for sick leave, requests for leave under FMLA, and any other lay or medical evidence related to his claims. He did not respond to either request. Next, the Veteran's VA treatment records were obtained and associated with the claims file, as was his VA vocational rehabilitation file. As directed, the Veteran underwent a VA examination in July 2014 to evaluate the severity of his low back disability. This VA examination, as indicated, is adequate to evaluate the disability. Finally, the matter was readjudicated in a July 2014 supplemental statement of the case (SSOC), as directed by the Board. Accordingly, there was substantial compliance with the prior Board remand directives, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time. II. Analysis - Increased Rating The Veteran is seeking an increased rating for his low back disability. He filed a claim for increase in June 2008, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a 20 percent rating prior to July 1, 2009, and a 40 percent rating beginning from that date. A. Applicable Law Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Because the ability to overcome the handicap of disability varies widely among individuals, the disability ratings are based primarily upon the average impairment in earning capacity resulting from a service-connected disability, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. See 38 C.F.R. § 4.15. Where there is a question as to which of two disability ratings shall be applied, the higher disability rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where a claimant is awarded service connection and assigned an initial disability rating, separate ratings can be assigned for different periods of time since the effective date for the award of service connection ("known as staged ratings"). See Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). Staged ratings are appropriate in any case when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). After careful consideration of the evidence, any reasonable doubt remaining on any material question of law or fact is to be resolved in favor of the claimant. 38 C.F.R. § 4.3; Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). B. Rating Schedule The Veteran's spine disability has been assigned a disability rating under Diagnostic Code (DC) 5243 of 38 C.F.R. § 4.71a. The applicable rating schedule is set forth as follows. Disabilities of the spine involving intervertebral disc syndrome (IVDS) are assigned under Diagnostic Code 5243, which provides that the disability is to be rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher evaluation. See 38 C.F.R. § 4.71a, Note. The rating schedule for IVDS is as follows: Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60 With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40 With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is 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. Note (2): 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 incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. THE SPINE Rating General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 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 Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. "[D]isability ratings are assigned based on a 'condition,' rather than on any symptoms of a particular condition." Thus, separate disability ratings under the same diagnostic code are not assignable "for different symptoms of an underlying spinal condition, such as pain, ankylosis, or muscle spasms." In other words, "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise." However, separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions. Cullen v. Shinseki, 24 Vet. App. 74, 80-81, 84 (2010). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. With or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury. Id.; see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Thus, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Burton, 25 Vet. App. at 5. A veteran experiencing an "actually" painful joint is entitled to at least the minimum compensable rating per joint under the appropriate DC involved. Petitti v. McDonald, 27 Vet. App. 415, 424 (2015) (citing Mitchell v. Shinseki, U.S. Vet. App. No. 09-2169, Secretary's Response (Resp.) to April 6, 2011, Order at 1). A rating higher than the minimum compensable rating is not assignable under any diagnostic code (relating to range of motion) where pain does not cause a compensable functional loss. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Section 4.59 does not require objective evidence of painful motion. The regulation does not speak to the type of evidence required when assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to "objective" evidence. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. See id. at 427-28 (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). C. Application of the Rating Schedule (1) 20% from June 2008 Claim Beginning from June 2008 until July 1, 2009, a rating higher than 20 must be denied as the evidence does not show a disability picture more nearly approximating either (a) forward flexion of the thoracolumbar spine 30 degrees or less; (b) favorable ankylosis of the entire thoracolumbar spine; or (c) incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. On VA examination in July 2008, he had flexion to 40 degrees without additional loss of range of motion due to pain, fatigue, weakness, or incoordination. Favorable ankylosis was not shown. VA treatment records from July 2008 and August 2008 continue to reflect complaints of low back pain. This evidence establishes that the Veteran's disability did not involve forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine even when considering the effects of painful motion and functional loss. Thus, a rating of 20 percent is not for assignment on the basis of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. There has been some question as to whether the Veteran experienced an incapacitating episode lasting at least 4 weeks during this time period. The July 2008 VA examination states that there were no incapacitating episodes in the last 12 months. After that examination, the Veteran testified at his July 2012 Board hearing that there was a "large episode" in 2008 when he was out of work for greater than 30 days at one period of time. Board Hr'g Tr. 5. He was "pretty much bedridden during that time." Board Hr'g Tr. 11. Similarly, his partner submitted a statement in October 2009 stating that the Veteran was out from work during the period from December 2008 to January 2009 because of lower back pain. She further stated that he had been restricted to bed with limited movement as instructed by his doctor. This testimony appears to be based on a misunderstanding of incapacitating episodes as defined in 38 C.F.R. § 4.71a, Formula for Rating IVDS. In fact, the doctor identified by the Veteran's partner is actually a chiropractor, and there is no indication of prescribed bed rest in his records. This chiropractor wrote six work release notes dated throughout December 2008 to June 2009. These notes show that the chiropractor restricted the Veteran from work for four weeks in December 2008 and January 2009. However, these notes do not prescribe bed rest. On December 15, 2008, the chiropractor's work release note advised the Veteran to refrain from work school and/or physical activity, but did not prescribe bed rest. In fact, this chiropractor wrote a supporting letter in March 2010, which explains that the Veteran had experienced times when he has not been able to sit or stand for long periods of time. This letter does not identify any prescribed bed rest, where it is reasonably expected the chiropractor would have done so in a letter that was otherwise describing the Veteran's treatment history. See, e.g., AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); see Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). At the Board hearing, the Veteran further indicated that his claims file might not contain all the medical sick notes from this chiropractor. Board Hr'g Tr. 17. The Veteran did not, however, submit or authorize VA to obtain any further records from this chiropractor, even when asked to do so upon remand by the Board. Thus, the Board has no reasonable basis to find that the work release notes from the Veteran's chiropractor might have been accompanied by prescriptions for bed rest. In fact, consistent with the conclusion that the chiropractor did not prescribe bed rest, a July 2009 VA examination identifies an incapacitating episode in mid-December of 2008 that lasted until the beginning of January 2009, where the Veteran missed work that entire period of time and "had to lay [sic] in bed most of the time due to the pain in his back." The VA examiner's phrasing "had to lay in bed most of the time" tends to confirm that any bed rest was at the Veteran's own initiative and not prescribed by the chiropractor. Taken together, this evidence tends to establish that the Veteran did not have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the time period at question from December 2008 to January 2009. The Veteran and his partner's testimony, being inconsistent with the evidence, tend to indicate a misunderstanding of the rating schedule's definition of incapacitating episodes. Accordingly, this lay testimony cannot justify assignment of a higher rating based on incapacitating episodes prior to July 1, 2009. To summarize, a rating higher than 20 percent must be denied for the period prior to July 1, 2009, because the evidence does not show a disability picture more nearly approximating either (a) forward flexion of the thoracolumbar spine 30 degrees or less; (b) favorable ankylosis of the entire thoracolumbar spine; or (c) incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. In reaching this conclusion, the Board is mindful that the July 2014 rating decision granted the 40 percent rating retroactively to July 1, 2009, based on the July 2014 VA examiner's finding that the Veteran had flexion limited to 30 degrees. The rating decision mechanically assigned the 40 percent rating from July 1, 2009, based on the date the Veteran filed a claim for increase. An effective date for an increased rating should not be assigned mechanically in this manner. Rather, all of the facts should be examined to determine the date that the disability first manifested. The effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Here, as explained in greater detail immediately below, it cannot be factually ascertained prior to July 1, 2009, that the Veteran met the criteria for a 40 percent rating. Thus, the 40 percent rating cannot be assigned prior to July 1, 2009. (2) 40% from July 1, 2009 Beginning from July 1, 2009, a rating higher than 40 must also be denied as the evidence does not show a disability picture more nearly approximating either (a) unfavorable ankylosis of the entire thoracolumbar spine; or (b) incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. With regard to unfavorable ankylosis, there is no material dispute that the Veteran's back condition does not manifest to this degree. VA examinations in July 2009, January 2011, and July 2014 are consistent on this question. At the July 2014 VA examination, the Veteran complained of functional limitations involving pain that was worse with prolonged walking, lifting and standing as well as bending, although he was able to walk 1 to 1-1/2 miles. This examination also noted that the Veteran had flare-ups that were intermittent, without obvious cause, but occasionally related to lifting. The prior examinations contain complaints of functional effects that are consistent with those described at the July 2014 examination. For instance, at the July 2009 VA examination, the Veteran complained of flare-ups approximately two to three days a month where he had to miss work. At the January 2011 examination, the Veteran was able to walk 1 to 1-1/2 miles, but, in the past 12 months he had missed 8 to 12 days of work. The VA medical records, such as in August 2012 and October 2014, consistent with the VA examinations, reflect complaints of ongoing back pain with functional effects involving pain with sitting, standing, or walking for extended periods. At a June 2013 VA mental health examination, the Veteran reported that he could previously jog 2 1/2 to 3 miles a day, but now he can barely jog one mile. Most representative of these complaints is an October 2014 VA primary care note, which documents the Veteran's report of worsening of low back pain exacerbated with lifting, bending, prolonged sitting, and prolonged standing. The Veteran complained that his muscles felt "stiff" making it difficult to work his job, which required lifting, carrying tool bag, and climbing ladders. The Veteran also had private physical therapy throughout June and July 2011, and he continued seeking treatment with his private chiropractor. Most recently, VA Pain Medicine notes throughout August 2015 to October 2015 show ongoing complaints of low back pain better with rest and moist heat, plus frequent position changes, worsened with prolonged activity, positions. The Veteran stated throughout those consultations that he had been struggling "a bit" and losing traction on his overall pain control and functional status. Notwithstanding the functional limitations shown during this time period, there is no material dispute that the Veteran's back condition does not manifest with unfavorable ankylosis, even with consideration of the functional impairments resulting from pain and other such factors. Thus, the next higher rating, 50 percent cannot be assigned on the basis of limited motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. With regard to incapacitating episodes, the evidence establishes that he did not have incapacitating episodes having a total duration of at least 6 weeks during any 12 month period. The January 2011 and July 2014 VA examinations both noted 8 to 12 days of incapacitation requiring bed rest during the past 12 months. At the July 2012 Board hearing, the Veteran testified that he had been incapacitated several times, probably adding up to about five weeks "or in that area." Board Hr'g Tr. 3. Again here, the private and VA medical records do not document any periods of prescribed bed rest. Even assuming that the VA examinations and the Veteran's testimony is accurate, however, the reported periods of incapacitating episodes are less than 6 weeks. Thus, the next higher rating, 60 percent, cannot be assigned on the basis of incapacitating episodes. See 38 C.F.R. § 4.71a, Formula for Rating IVDS. In summary, because the evidence shows an absence of unfavorable ankylosis of the entire thoracolumbar spine and incapacitating episodes having a total duration of at least 6 weeks during any 12 month period, a rating higher than 40 percent is not warranted at any point during the period under review beginning July 1, 2009. See 38 C.F.R. § 4.71a. (3) Neurologic Impairments A separate compensable rating is also not assignable on the basis of associated neurologic impairments. At his July 2012 Board hearing, the Veteran was asked about such symptoms, and he testified that he had frequent urination and stomach/reflux issues. Board Hr'g Tr. 11. A June 2014 VA Primary Care note, by comparison, reflects no change in bowel or bladder status. The July 2014 VA examiner also clarified that the Veteran had no neurologic abnormalities or findings related to a thoracolumbar spine (back) condition, such as bowel or bladder problems. Thus, to the extent the Veteran is having urinary and stomach complaints, the medical evidence establishes that they are unrelated to the service-connected low back disability. In this regard, the Board must find that it is outside the scope of a non-medical expert, such as the Veteran, to identify the etiology of such complaints. Accordingly, the Veteran's own testimony is not competent to attribute his complaints to the service-connected low back disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015); see also Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015). There has also been some question as to whether the Veteran experiences radiculopathy, especially in the right lower extremity, related to the service-connected low back condition. Suggesting such symptoms, at the July 2012 Board hearing, the Veteran testified that he had a loss of feeling in his right leg. The July 2009 VA examination includes a diagnosis of herniated disc of the lumbar spine with associated sciatica. The January 2011 VA examination also notes that he had developed right sciatic like symptoms on the right lower extremity over the past few years. Various VA medical records, such as in October 2012, October 2014, and November 2014, also document a diagnosis of sciatica. This positive evidence is contradicted by more probative evidence making it more likely than not that the Veteran's symptoms are not radiculopathy or sciatica related to the service-connected low back disability. Particularly probative, the July 2014 VA examiner specifically investigated this question, but concluded that the Veteran had bilateral sacroiliitis (which appeared on radiographic images), and was unrelated to lumbosacral strain and IVDS. The Board notes that this VA examiner, earlier in the examination report, marked the box corresponding to a finding of mild right radiculopathy. Reading this examination report as a whole, however, it is clear that the examiner was intending to give an indication of the severity of the Veteran's sacroiliitis symptoms in the right lower extremity at that point in the examination report. Thus, there is no internal inconsistency in the VA examiner's conclusions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (A VA examination report "must be read as a whole" to determine the examiner's rationale.) Consistent with the July 2014 VA examiner's conclusion, the subsequent VA medical records confirm the diagnosis of sacroiliitis without radiculopathy or sciatica. A January 2015 VA Pain Medicine Follow-up Note, in particular, documents the Veteran's complaints of continued pain (aching, cramping) in his right lower back and in his right leg, although it was noted as important that he did not endorse radiation from the low back to the leg. The results of an magnetic resonance imaging scan (MRI) were noted to not elucidate possible etiology for his pain, and plain films suggested mild osteoarthritis in the hips. Further testing was recommended, including an EMG/NCS study to assess for radiculopathy. This study was conducted in February 2015, and it was a normal study with no electrophysiologic evidence of a right lumbosacral radiculopathy, plexopathy or right lower extremity neuropathy. On follow-up with VA Pain Medicine throughout August 2015 to October 2015, these studies were again noted, and the impression was give as "back and hip pain and skin sensation disturbance." He was given medication for neuropathic symptoms. Overall, the Board must find that the July 2014 VA examination, together with the subsequent evidence, affirmatively establishes that the Veteran has such symptoms in the right lower extremity, but that they are not related to the service-connected low back disability. This evidence, particularly the July 2014 VA examiner's opinion, is fully supported and explained whereas the positive diagnoses of sciatica and radiculopathy are unsupported and conclusory. An unexplained conclusory opinion is entitled to no weight in this context. See Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). Likewise, it is outside the Veteran's scope as a non-medical expert to identify the etiology of such complaints. See Davidson, 581 F.3d at 1316; Petitti, 27 Vet. App. at 427-28. Thus, the Board must assign more probative value to the negative evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). Because the negative evidence, which is more probative, establishes that the Veteran's symptomatology in the right lower extremity is not related to the service-connected low back disability, a rating cannot be assigned under 38 C.F.R. § 4.124a, Schedule of Ratings-Neurological Conditions and Convulsive Disorders, on the basis of an associated neurologic impairment in that extremity. As a final matter, the Board notes that the July 2014 VA examination positively identifies a scar associated with the low back condition. This scar was not painful, and there is no indication of any other symptomatology associated with the scar where it appears reasonable to assume that such would have been recorded if present. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Thus, there is no basis for assigning a separate compensable disability rating under 38 C.F.R. § 4.118, the Schedule of Ratings-Skin, on the basis of the scar. To conclude, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a rating higher than 20 percent prior to July 1, 2009, or a rating higher than 40 percent since July 2009, at any time during the appeal period and including on the basis of associated neurologic impairments. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, even after resolving all reasonable doubt in the Veteran's favor, the appeal must be denied. D. Extraschedular Consideration The Board's findings above are based on the rating schedule. Generally, it must be remembered that the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. In this regard, the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. The disability evaluations are based upon this functional impairment-the lack of usefulness, of these parts or systems, especially in self-support. See id. Moreover, the rating schedule is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321(b). The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). (1) Criteria The extraschedular determination must follow a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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. Therefore, initially, the level of severity and symptomatology of a Veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a Veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, No. 14-3390, 2016 WL 747304, at *8 (Vet. App. Feb. 26, 2016) If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. Limiting referrals for extraschedular evaluation to considering a Veteran's disabilities individually ignores the compounding negative effects that each individual disability may have on the Veteran's other disabilities. Section § 3.321(b)(1) performs a gap-filling function, accounting for situations in which a Veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a Veteran's disabilities are nonetheless inadequately represented. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Therefore, referral for extraschedular consider may also be made to consider the compound/combined impact of multiple service-connected disabilities in determining whether referral for extraschedular consideration is needed. See id. (2) Discussion In this case, referral for extraschedular consideration is not warranted. The Veteran's service-connected low back disability is manifested by signs and symptoms such as pain, which impairs his ability to stand and walk for long periods. These signs and symptoms, and their resulting functional impairments, are expressly contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the spine provide disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a. In fact, 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. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the rating schedule was purposely designed to compensate for such functional effects of his disabilities in all spheres of his daily life, including at work and at home and given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in standing and walking for long periods. See 38 C.F.R. §§ 4.1, 4.10, 4.15. In short, there is nothing exceptional or unusual about the Veteran's low back disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Finally, the Board notes that the Veteran is service-connected for other disabilities, including other orthopedic conditions. However, referral for extraschedular consideration has not been argued by the Veteran or reasonably raised by the record. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Even if it was argued or raised, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998) in this case, there appear to be no additional symptoms or effects that have not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Johnson, 762 F.3d 1362. For these reasons, referral for consideration of an extraschedular rating for this disability is not warranted. II. Analysis - Temporary Total Rating The Veteran is also seeking a temporary total rating from December 10, 2008, until January 12, 2009. In his September 2009 informal claim, he wrote that he was seeking this benefit because he was out of work recuperating from his service-connected back condition during that time. At his July 2012 Board hearing, he clarified that his chiropractor requested he be out of work for a long period of time, and he was "pretty much bedridden during that time." Board Hr'g Tr. 11. A. Applicable Law A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A total disability rating (100 percent) will also be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted under 38 C.F.R. §§ 4.30(a)(1), (2) , or (3), effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.30(a) (2015), total ratings will be assigned if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) Immobilization by cast, without surgery, of one major joint or more. B. Discussion In this case, a temporary total evaluation must be denied. First, pursuant to § 4.29, the Veteran does not assert, nor does the evidence suggest, that he was undergoing hospital treatment during the time period at issue. Thus, a rating cannot be assigned under § 4.29. Second, under § 4.30, a rating cannot be assigned because the Veteran was not convalescing from surgery or had immobilization by cast during this time period. As discussed in greater detail herein above, the Veteran's private chiropractor wrote him work release notes for a total period of 4 weeks in December 2008 and January 2009. The chiropractor advised him to "refrain from work, school, and/or physical activity" during this time period. There is no indication that this was a result of surgery or immobilization by cast, and the Veteran does not contend as much. Accordingly, a temporary total rating under § 4.30 cannot be assigned. Finally, to the extent the Veteran maintains that he was housebound during this period, he is not assigned a total, 100 percent, rating on the basis of any single disability. As such, special monthly compensation at the housebound rate is not payable. See 38 C.F.R. § 3.350(d) (2015). In light of the foregoing, even after resolving reasonable doubt in the Veteran's favor, the appeal for a temporary total evaluation under § 4.29 or § 4.30, must be denied. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 20 percent for intervertebral disc syndrome (previously rated as low back strain) prior to July 1, 2009, and an evaluation in excess of 40 percent beginning July 1, 2009, is denied. A temporary total rating under 38 C.F.R. § 4.29 or § 4.30, is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs