Citation Nr: 1633879 Decision Date: 08/26/16 Archive Date: 08/31/16 DOCKET NO. 99-00 328A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial rating higher than 40 percent prior to April 25, 2005, and after August 11, 2005, and higher than 50 percent between April 25, 2005, and August 11, 2005, for a lumbosacral strain with degenerative changes at L4-5 and L5-S1, to include whether referral for extraschedular consideration is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Mullins, Counsel INTRODUCTION The Veteran served on active duty from January 1994 to January 1997. This matter initially came before the Board of Veterans' Appeals (Board) from a September 1998 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York. In that decision, the RO granted service connection for a low back disability and assigned an initial noncompensable disability rating, effective March 9, 1998. Original jurisdiction over the Veteran's claim was subsequently transferred to the RO in Denver, Colorado. In March 1999, the Veteran testified at a hearing before a local hearing officer at the RO. In November 2001, he testified at a Board hearing in Washington, DC, before the undersigned. A transcript of each hearing has been associated with his claims folder. This case has a long procedural history. In May 1999 and May 2000, the RO assigned higher initial ratings of 10 and 20 percent for the Veteran's back disability, both effective March 9, 1998. In March 2005 and June 2007, the Board remanded this matter to the agency of original jurisdiction (AOJ) for further development. In November 2007, the AOJ granted service connection for L4-S1 radiculopathy of the right leg and assigned an initial rating of 10 percent, effective September 23, 2002. This determination was also on appeal. In June 2009, the Board remanded the claim for a higher initial rating for the back disability for further development. In a March 2011 decision, the Board awarded a 40 percent rating from March 9, 1998, to April 24, 2005, and since August 12, 2005; and awarded an initial 50 percent rating from April 25, 2005, to August 11, 2005, for a lumbosacral strain with degenerative changes at L4-5 and L5-S1. Otherwise, the Board denied a higher or separate rating for the Veteran's lumbar spine disability on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 Order, pursuant to a Joint Motion for Remand (JMR) by the parties, the Court vacated and remanded the Board's decision to the extent that it denied ratings in excess of those reflected in the issues on the first page of this decision. In a September 2012 decision, the Board granted a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective April 1, 2009, to April 1, 2010, and February 1, 2011, forward. The Board again remanded the issue currently on appeal in February 2015 for further evidentiary development. The case has since been returned to the Board. FINDING OF FACT Since March 9, 1998, the Veteran's lumbar spine disability has been manifested by persistent low back pain with only intermittent relief and neurological symptomatology associated with the right lower extremity; it was not manifested by vertebral fracture, ankylosis (complete bony fixation) with marked deformity or ankylosis of the entire spine. CONCLUSION OF LAW The criteria of establishing entitlement to an evaluation of 60 percent for a lumbar spine disability, throughout the pendency of the Veteran's appeal, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5293 (2002); Diagnostic Codes 5285-95 (2003); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for these claims. As to VA's duty to assist, VA has associated with the claims folder the Veteran's private and VA treatment records, and in July 1998, January 2000, March 2002, August 2005, January 206, August 2007, August 2009, September 2009, May 2011 and August 2015, he was afforded formal VA examinations. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Schedular Rating. A March 1998 VA treatment note shows the Veteran had been suffering from back pain for one week. The record indicates that the Veteran was suffering from intermittent low back pain secondary to a lifting injury. He was noted to have straightening of the lumbar spine, probably related to muscle spasm, mild spondylitic changes of the endplates at multiple levels, and mild disc space narrowing at the L4-5 level. A CT (computed tomography) scan was performed in June 1998. This revealed mild diffuse bulging annulus L2 through L5. According to a private May 1998 record from the Plott Chiropractic Office, PC, the Veteran had an acute moderate lumbar disc without myelopathy syndrome resulting in lumbar segmental/somatic dysfunction, complicated by cervical segmental/somatic dysfunction. The Veteran's condition was noted to now be in a chronic state. The chance of formed adhesions from the past injury was high, because with the invasion of fibrotic tissue comes joint hypomobility. This may be seen by the loss of range of motion. It was noted that the Veteran had done well under their treatment but he had not returned for some time. An August 1998 record also noted a history of numbness over the right lumbar area past the right thigh associated with pain and soreness. His symptoms were more with sitting than with standing and walking. X-rays from July 1998 were negative. He rated his pain as a 1 or 2 out of 10; intermittently reaching 8 out of 10. The Veteran was diagnosed as having low back pain most likely secondary to disc bulge from L2-L5 with mild impingement on the thecal sac at all three levels. There was also mild thoracic scoliosis. Subsequent imaging of the lumbosacral spine performed in July 1998, however, was deemed unremarkable. At a VA examination in July 1998, the Veteran reported that in June 1996 he reported that the low back pain persisted throughout his service and to the present. His pain was worse when driving or when walking around for considerable distances at work as a laboratory technician. He denied having lost any time from work as a result of his job. He reported that the pain occasionally radiated down his right lower extremity to the level of the knee. He has no complaints referable to his bowel or bladder. Physical examination revealed his range of motion to be forward flexion to 90 degrees, extension to 30 degrees, bilateral rotation to 45 degrees and bilateral rotation to 80 degrees. There appears to be a reporting error, as "rotation" is mentioned twice. Deep tendon reflexes in the lower extremities were active and equal on each side. Muscle strength was adequate and equal on each side. There were no sensory changes detected in either foot. The Veteran was diagnosed with a chronic strain of the lumbosacral spine, mild diffuse bulging of the annulus at L2-5 and mild degenerative changes of the endplates at multiple sites. The Veteran was seen by VA in October 1998 for an initial physical therapy evaluation. It was noted that the Veteran had complaints of low back pain for about 2 years. His pain was worse when sitting and when performing activities such as driving. Forward bending activities also produced his pain. He was complaining of intermittent low back pain with radiation into the right buttock and thigh area and sometimes all the way down to the toes. Examination revealed a left lumbar scoliosis. He had normal range of motion for flexion, extension and side-bending. He was limited by 25 percent in rotation, bilaterally. There seemed to be some minimal to moderate pain with all of these movements. Repetitive flexion increased the pain. There were insignificant signs for deep tendon reflexes. He demonstrated some moderate length restrictions to the left lower extremity. He ambulated without devices and had a normal gait pattern. It was determined that the Veteran had signs and symptoms of lumbar disk displacement. A subsequent October 1998 record notes that pain was in the right lower back. An MRI (magnetic resonance image) performed in January 1999, revealed minimal disc bulges at the L4-5 and L5-S1 levels that did not result in stenosis. An MRI of the thoracic spine was obtained in February 1999 to rule out cord compromise. It was determined that there was no evidence of central spinal canal stenosis. According to a May 1999 VA treatment note, the Veteran had intermittent shooting pain. A motor evaluation of the lower extremities, bilaterally, was deemed to be normal (5 out of 5). In November 1999, he reported that his back was still sore and that he could not sleep on his right side. The Veteran was afforded a VA examination in January 2000. He reported that his low back condition had progressively worsened with right radicular signs shooting down to his right knee. He reported pain on a daily basis, along with stiffness in the mornings and after a typical day's work. The Veteran worked as a laboratory technician requiring him to lurch over all the time which aggravated his low back condition. He reported weakness, fatigue and a lack of endurance on a regular basis. He denied any bowel or bladder problems. As for the impact on his daily life, he noted that he could no longer bowl. He was also unable to wash dishes for too long or vacuum his floor due to his lower back condition. He was also unable to work out or play sports, especially hockey, which used to be his past-time. Walking and sitting for prolonged periods bothered his lower back. Physical examination revealed a normal gait and good heal-to-toe progression. There was no fixed deformity or postural abnormality noted in the lumbosacral region. There was no atrophy of the paraspinal muscles and lumbar lordosis was well-maintained. Range of motion testing revealed flexion to 80 degrees with pain starting at 60 degrees, extension to 25 degrees without pain, bilateral lateral flexion to 35 degrees without pain, right rotation to 45 degrees with pain at the end of the range of motion and rotation to the left to 45 degrees without pain, for a combined range of motion of 265 degrees. The neurological examination revealed sensation to be intact, bilaterally. Muscle, bulk and tone were intact and passive range of motion was full throughout. Deep tendon reflexes were 3+ and symmetrical in bilateral patellar and Achilles tendons. Babinski was flexor bilaterally. The final diagnosis was a lumbosacral strain with degenerative changes. A January 2000 brain and spinal cord examination diagnosed the Veteran with mild diffuse disc bulges at L4-5 and L5-S1 and a chronic lumbosacral strain. The Veteran was seen for VA treatment in February 2000. A VA treatment note reflects that the Veteran had a history of low back pain radiating to the right lower extremity with pain and numbness. According to a March 2000 VA treatment note, the Veteran's back symptomatology had progressively worsened since his 1996 in-service injury. He currently reported an exacerbation of low back pain radiating laterally down to the right toes. He also reported numbness in the right gastrocnemius, especially while driving. He again noted that his low back pain was worsening and radiating to the right lower extremity upon treatment in May 2001. A June 2001 VA treatment note indicates that the Veteran had chronic low back pain in the lumbosacral area that radiated down to the right foot. The Veteran also reported numbness in the latter aspect of the right foot and tightness in the right TA. The Veteran reported that his pain in the low back began during service in 1996 when lifting heavy chains. The Veteran reported that his pain got progressively worse since this injury. He currently reported an exacerbation of low back pain, but his range of motion was noted to be within full limits. He was diagnosed with mild degenerative joint disease by MRI. An Electrodiagnostic test revealed peripheral neuropathy with pain radiating to the right lower limb associated with tingling over the lateral-aspect of the right foot. Motor examination was 5/5, but pin was decreased distally in the bilateral upper and lower extremities. Reflexes were generally brisk with bilateral Hoffman's. According to a July 2001 VA treatment note, the Veteran's lumbar range of motion was within full limits with slight pain at the end range of thoracic lateralization, bilaterally. Motor power was 4 out of 5 in all four extremities. Sensation to light touch was grossly intact and the Veteran ambulated independently without difficulty or gait deviations. A November 2001 VA treatment note reflects that the Veteran had chronic low back pain rated as a 6 out of 10. Extension to 20 degrees was painful and a sit-up was also painful. The Veteran was diagnosed with chronic low back pain, disc bulge, with right peripheral neuropathy. The Veteran was afforded a VA examination in March 2002. The Veteran reported continued low back pain since his military service that radiated down the right lower extremity. He noted stiffness involving the low back, especially upon rising in the morning. He had fatigability of the muscles and lack of endurance due to difficulties with prolonged sitting or standing. The Veteran's pain increased with any increased activities. He did not utilize any crutches, braces or canes. The Veteran was independent in his activities of daily living and he worked as a lab technician 40 hours per week. He had lost 7 days of work in the preceding year due to his back. Physical examination revealed the Veteran to be in no acute distress. He ambulated into the office with a normal reciprocal type gait. He had excellent muscle bulk in the lower extremities. He was tender to palpation over the paraspinal of the lumbar spine, bilaterally. He had full flexion, extension, rotation and side-bending. Flexion gave the Veteran some increase in pain about the spine. Motor testing in the bilateral lower extremities was 5 out of 5. Knee jerk was 3+ for the right lower extremity and 2+ for the left lower extremity. The Veteran was diagnosed with L4 and S1 radiculopathy and minimal disc bulge at L4-5 and L5-S1. A July 2002 addendum notes that the Veteran's claims file was reviewed. He had difficulty getting moving in the morning requiring increased time for his activities of daily living. He had difficulty with prolonged sitting and driving as well as difficulty ascending and descending stairs. While his range of motion was full, he had increased pain in flexion at the last 25 degrees. According to a September 2003 VA treatment note, the Veteran had complaints of low back pain after having picked up an air conditioner. The pain began that morning and had persisted without resolution with any medication. The Veteran stated that the pain did not radiate down both of his thighs. A November 2003 treatment note reflects back pain since military service. The Veteran reported varying degrees of pain-sometimes he would have a dull ache that he rated as 1 out of 10, while other times it could escalate to what he rated as 10 out of 10. The Veteran reported that the symptoms increased with prolonged sitting and standing and leaning over a counter. His pain would decrease when lying on the floor with his knees over the edge of a chair and swimming. Physical examination revealed forward flexion to be within normal limits with a pulling of the bilateral hamstrings. Extension was within normal limits without change in symptoms. Bilateral rotation was within normal limits throughout without a change of symptoms. Right side bending was within normal limits with increased pain in the right hip. Left side bending was moderately limited without change in symptomatology. He was found to have signs and symptoms suggestive of chronic low back pain, possibly secondary to lumbar spondylosis. A December 2003 VA treatment note also indicated that active range of motion was within normal limits. The Veteran was again seen by VA in February 2005 with complaints of chronic low back pain. It was noted that the Veteran continued to work and that he took care of his children in the evening while his wife was studying. Examination revealed the Veteran to ambulate without any assistive devices. Lumbosacral flexion was full and extension was within normal limits. The lumbosacral spine and paravertebral areas were nontender. Motor power was 5/5 in both lower extremities, knee jerks were 3+ and ankle jerks were 2+. He was diagnosed with chronic low back pain; minimal disc bulge at L4-5 and L5-S1. Peripheral neuropathy and right L4-S1 radiculopathy were also diagnosed. According to a VA treatment record dated April 25, 2005, the Veteran had chronic low back pain that had been "acting up" since the previous night. A separate April 25, 2005, VA treatment note reflects that the Veteran had full lumbar flexion associated with pain in the lumbar area. Extension was limited to 15 degrees and painful. Tenderness was present over the lower thoracic spine and parathoracic area. Motor power was 5/5 in both lower extremities with knee jerks at 3+ and ankle jerks at 2+. Bilateral ankle clonus was noted. Straight leg raising was positive at 50 degrees with low back pain in the right posterior thigh and anterior thigh areas. Patrick test was positive with right groin pain. SI test was negative bilaterally. Patrick testing was negative on the left side. The Veteran was noted to have chronic low back pain with acute exacerbation, disc dissection at L4-5 and L5-S1, mild central disc protrusion at L5-S1 and rule out any worsening of a disc problem. A May 2005 VA treatment note also reflected lumbosacral flexion to be within normal limits, as well as extension. The Veteran's range of motion was noted to be painful. The lumbosacral spine, paraspinal areas and SI joints were nontender. The Veteran was diagnosed with chronic low back pain with acute exacerbation and disc desiccation at the L4-L5 and L5-S1 levels with mild central disc protrusion at L5-S1 per MRI in 2003. A July 2005 VA treatment note reflects that the Veteran's back pain was "better." The Veteran also contends that he is entitled to an evaluation in excess of 40 percent for his low back disability as of August 11, 2005. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran has not been entitled to an evaluation in excess of 40 percent at any time since August 11, 2005. As such, the claim is not warranted. According to an August 2005 VA treatment note, the Veteran was seen with complaints of a dull, constant back pain that he rated as a 3 to 4 out of 10. He also had occasional infrequent exacerbations resulting in a pain level of 10 out of 10. The pain was noted to be sharp and stabbing in nature and radiating to the right lower extremity. He also mentioned some associated numbness on the right foot. He could not identify a specific action that worsened the pain. It was noted that the Veteran had recently been involved in a psychotherapy program and he realized that his pain got better with the relaxation techniques. Evaluation revealed a full lumbar range of motion without complaints. The Veteran was diagnosed with right lumbar chronic radiculopathy (probably L5-S1) and bilateral LE UMN sd. of unknown etiology. A subsequent August 2005 VA treatment note reflects that the Veteran received a caudal epidural steroid injection. The Veteran was subsequently afforded a VA examination in August 2005. The Veteran described his in-service back injury. The Veteran reported that he now had severe low back pain, particularly on lifting heavy objects and standing for prolonged periods of time. The pain also flared-up on repeated bending, stopping or squatting. He was working as a lab technician in a job that required unloading, loading and carrying heavy objects and also bending and stooping. It was opined that he was severely impaired in his ability to fulfill the requirements of his job in that he had to take 3 to 4 additional days every year of tome off on sick leave in addition to the 4 days of sick leave that he is entitled to every year. Thus, it was noted that in the last 3 years, the Veteran had taken, on average, 7 to 8 business days per year. Back pain was graded as 9 out of 10. It was noted that the Veteran's current pain minimally impaired him in his job since it hurt when he lifts or carries any moderately heavy objects. The partially ruptured right rectus abdominus muscle was minimally impairing him in his ability to fulfill the requirements of his job. It was noted that this examination was performed only 2 weeks after the patient had an epidural injection, which had previously caused marked relief of his low back pain. X-rays and MRIs of the lumbosacral spine had yet to reveal signs of degenerative joint disease or herniated discs. The Veteran was afforded a neurological examination as well. The Veteran reported that his low back pain had increased since military service. He stated that it radiated into his right leg. He described numbness, tingling and loss of sensation in the right leg. He also stated that his right leg was weak. Examination revealed power, tone and bulk to be normal in the iliopsoas, hamstrings, quadriceps, gluteal, foot dorsiflexors and plantarflexors except for a slight weakness in the right foot dorsiflexion. The Veteran's gait was normal and his deep tendon reflexes were 2+ in the knee and ankles (except for 1+ in the right ankle). Sensory examination showed L5-S1 abnormalities. The examiner concluded that the Veteran showed signs of lumbosacral radiculopathy. It was determined that it was at least as likely as not that the lumbosacral radiculopathy was related to the Veteran's low back condition. The record also contains an August 2005 addendum to the above examination. It was noted that the claims file was reviewed. The Veteran had lumbosacral radiculopathy. The examiner explained that lumbosacral radiculopathy is when a lumbar spine injury has resulted in damage to the lumbar nerve roots as they exit the spinal cord. The previous examiner diagnosed the Veteran with a lumbar strain. These diagnoses were consistent with each other. The diagnosis of lumbosacral radiculopathy more specifically addressed the effect of the nerves. The examiner indicated that she did not disagree with the previous examiner's diagnosis. A January 2006 addendum also notes that the examiner agreed with the neurology compensation examiner. There was no disagreement and the examiner deferred all results of the neurology examination to the neurologist's report. The Veteran was subsequently admitted to the chronic pain clinic in January 2006. It was noted that he had been feeling much better after epidural injections. He now had very minimal right-sided low back pain, especially when he twisted his back. The epidural injections were received on August 16, 2005. Another January 2006 record notes that the Veteran's history was significant for lumbar radiculopathy. A June 2006 VA treatment note reflects that the Veteran's lumbar flexion and extension were within normal limits and he was pain free. His sacroiliac joint was nontender and straight leg raising was normal bilaterally. The neurologic examination revealed motor power, reflexes, knee and ankle jerks to be intact, with manual muscle testing at 5 out of 5. According to a December 2006 VA treatment note, the Veteran had been feeling better and he rated his pain as a 2 or 3 out of 10. He was presently not taking any medications. Examination revealed the Veteran to walk independently without any assistive devices. Lumbosacral flexion and extension were within normal limits and pain free. In a May 2007 statement, the Veteran's representative argued that the Veteran should also be considered for an extraschedular rating. It was noted that the August 2005 examination occurred only 2 weeks after the Veteran received epidural injections. An addendum to the August 2005 VA examination report was also provided in August 2007. The examiner noted that the Veteran had L5-S1 radiculopathy of moderate severity. The lumbar disc disease was also noted to be of moderate severity. The Veteran was afforded an additional VA examination in September 2009. The Veteran reported that since his previous evaluation he had moved to Colorado and had not seen a doctor. He reported being hospitalized for a separate problem than his back in March 2009 for 2 days. It was noted that he was not currently employed, having last worked in April 2009. His previous job required lifting and he was unable to do this because of his back problems. The Veteran reported that since August 2005 he had suffered from increased back pain in the lower thoracic to the lower back lumbosacral area, going down to the right leg. It flared-up once per week when it was bad and every day he noted his back pain to be 5 out of 10. The Veteran reported that when he had the radicular pain or flare-up going down to the right leg, it felt like it knocked him out for 5 to 6 hours. He also complained of limited motion of the back during the flare-up because of the pain and he could not move. He would have to "just lie still." He denied fatigue or weakened movement or any bladder or bowel problems. He did report stiffness and he could walk 30 minutes at a time 3 times per week, sit for an hour and stand for 15 minutes. He reported that he could lift 15 pounds. It was noted that for the prior 12 months, there were no incapacitating episodes of back pain that required a physician ordered bed rest. Physical examination revealed the Veteran's gait to be normal. He used no assistive devices. He had no difficulty arising from a chair or changing positions on the examination table. Range of motion revealed forward flexion to 95 degrees with mild pain in the low back (from 90 to 95 degrees), left lateral flexion to 30 degrees without pain, right lateral flexion to 25 degrees (with pain during the motion and at the end of the motion), and bilateral lateral rotation to 30 degrees (with some pain on each side at the end of the motion). Extension is not noted. Following repeated testing, "may add an additional 5 degrees loss of forward flexion and right lateral bending mainly due to painful motion; no additional losses of ROM due to fatigue, impaired endurance, and/or weakened movement." All of the other range of motion remained the same on repeated testing. No additional loss of motion was found due to painful motion and there was no weakened movement, impaired endurance, incoordination, instability, flare-ups or excess fatigability. There was no scoliosis, tenderness or spasms noted in the back, and motor examination was 5/5 throughout with no focal weakness or atrophy of the muscles. A sensory examination was deemed to be normal in the lower extremities, bilaterally, as well as a reflex examination. The examiner diagnosed thoracolumbosacral spine strain with degenerative changes at lumbar 4-5 and lumbar 5 to sacral 1. It was noted that this was mild in severity with radiculopathy of the right lower extremity. There was no neurologic impairment, motor impairment or sensory impairment. The Veteran was noted to have a mild limitation of motion. X-rays revealed mild degenerative disc disease at both the thoracolumbar and lumbosacral junctions. MRI was normal. The Veteran was afforded another VA examination in May 2011. He reported that he had not seen a physician for his service-connected conditions since 2007. It was noted that the Veteran last worked with a telephone "line crew" in February 2011. He reported that he was not able to continue in this job because he had increasing back pain when lifting. Prior to this he had worked for 11 years as a lab technician. He was granted total disability based on individual unemployability (TDIU) benefits in February 2011. It was noted that the Veteran had an associate degree in materials engineering technology. As for the Veteran's activities of daily life, the Veteran was able to dress, undress, feed himself, write and drive a car. He said he could sit up for 3 hours but would then have to move because his back became uncomfortable. He could stand and walk without limitation and could lift 150 pounds. His back would hurt the next day, however. He could climb stairs and run with subsequent back pain. He enjoyed gardening and did the weeding. The Veteran reported that his current symptoms included continuous pain rated as 3 out of 10 to 7 out of 10. He had no weakness of his back, fatigability or lack of endurance. He did have intermittent stiffness of the back. He reported that his back pain was worse and night and when the weather changed and it was located on the right side at the belt level. There was no bladder or bowel dysfunction or sexual dysfunction. He had intermittent tingling but no numbness in the fourth and fifth toes of the right foot. He reported that the back pain radiated down his back thigh around just below the right lateral knee and down the right lateral leg to the lateral foot affecting the fourth and fifth digits of the right foot. He did not use a cane, a brace or other assistive devices. In the previous year he said he had one flare while he was working loading trucks that lasted for a month consisting of worse back pain. He did not treat his back with any medication. There were no incapacitating episodes requiring physician ordered bedrest during the last year. Physical examination revealed that the Veteran was able to perform 3 full squats without fatigue. He had mild congenital scoliosis, not due to spasm. There was no spasm or tenderness. Straight leg raising was positive on the right and negative on the left. His movements off and on the table and chair were normal and fluid. He performed a full sit-up from the supine position without the use of his arms. His gait was normal and reciprocal. He was not using a cane or any other assistive devices. Range of motion testing revealed extension to 30 degrees (with pain at 30 degrees), forward flexion to 90 degrees (with pain at 90 degrees), bilateral lateral flexion to 30 degrees (with no pain) and bilateral rotation to 30 degrees (with no pain). It was noted that there was no change in active or passive range of motion during repeat testing times three and no additional losses of range of motion due to painful motion, weakness, impaired endurance, incoordination or instability. Neurological examination revealed no muscle atrophy and the Veteran had better than average bulk of musculature. Strength was 5 out of 5 bilaterally. Reflexes of the upper and lower extremities were 2 out of 4. Babinski reflex was doing-going toes. Coordination to alternate movements and tandem ambulation was intact and sensation to light touch and sharp/dull was also intact in the lower extremities, including the right foot. His vibratory sense was also intact in the upper and lower extremities. X-rays were interpreted to be normal for the lumbosacral spine and the thoracic spine. The examiner diagnosed the Veteran with a lumbosacral strain with right lower extremity L4-S1 sensory radiculopathy with no motor or sensory impairment on examination. There was no range of motion limitation of the thoracolumbar spine and no ankylosis. After interview and examination of the Veteran and review of the claims file, it was the examiner's opinion that the Veteran's service-connected disabilities of the lumbosacral spine strain and partial rectus abdominis muscle tear did not preclude his ability to find gainful employment for which his education, including a high school degree and occupational experience, would qualify him for. He would be limited in her opinion to doing labor with repetitive lifting of moderate weights over 25 pounds as this had been documented to flare his back pain in the past and cause him to exhaust sick leave at work. However, he had a high school degree and was normally not sedentary at home due to his back. He was able to garden and walk his children to school 2 and a half miles, round trip, every day. He would be qualified to do jobs that did not require repetitive lifting of moderately heavy weights and could do jobs that require some ambulation as well. He reported that he could sit for three hours at a time without back pain causing him to have to get up. According to a November 2013 VA treatment record, the Veteran was suffering from low back pain with sciatica. Neurological evaluation revealed DTRs 2+ above and below the waist. Sensation was intact to light touch. Motor strength was 5 out of 5 and symmetrical in the upper and lower extremities. The Veteran was most recently afforded a VA examination in August 2015. It was noted that the Veteran was unsure of when he had last worked, but it had been at least 3 years. He indicated that his low back kept him from working and made it hard to find work because he did not want to hide anything on his application. It was noted that there had been no incapacitating episodes requiring physician ordered bedrest in the last year or ever. Lying in bed for too long did not seem to help. Physical examination revealed a slightly stiff but otherwise normal gait. There was mild subjective decrease to sensation in the right L5 and S1 nerve distribution. The spine exhibited tenderness and mild to moderate tightness to palpation over the right lumbar paraspinals and the right S1 joint. Right lumbar and lower thoracic paraspinals were more prominent than the left during lumbar flexion. There was a mild to moderate decrease in the usual lumbar lordosis. Lumbar spine segments showed limited motion on left side bending, with most of the range of motion coming from above the mid-lumbar region. Extension caused pain in the upper lumbar and lower thoracic regions on the right. Flexion caused more pain than extension and bothered him into the right thoracolumbar spine and down into the buttock and posterior thigh on the right. Range of motion testing revealed flexion to 70 degrees (a later part of the examination report notes flexion to 80 degrees), extension to 20 degrees, bilateral lateral bending to 30 degrees, right rotation to 20 degrees and left rotation to 25 degrees. There was functional loss due to pain, limiting motion to 60 degrees of flexion, 15 degrees of extension. It was noted that these same degrees of motion were felt to be consistent with the Veteran's additional limitations during flare-ups. Repetitive use did not result in further limitation of motion. There was no evidence of pain with weight bearing. The Veteran did exhibit symptoms of radiculopathy. He did not suffer from ankylosis of the spine or any other neurological symptoms, such as bowel or bladder problems. The examiner concluded that the Veteran was suffering from degenerative arthritis of the spine. He also was noted to be suffering from intervertebral disc syndrome that had not resulted in any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran reported flare-ups resulting in pain he rated as 10 out of 10 that would last for most of the day and occurred 3 days per month. On those days he did not want to talk to anyone and asked his kids to leave him alone because he becomes mean. He will go into the basement and lie down. He also described functional loss, noting that he could no longer mow the lawn. He did supervise his 11 year old son. He had also cut back on laundry and the dishes and would get his kids to help with these tasks. He was also frustrated in that he could not perform activities such as throwing a baseball with his son or practicing soccer with his daughter. Finally, it was noted that this condition would impact the Veteran's employment in that he could have no repeated lifting. He would need a sedentary position with an ergonomic chair and the opportunity to transition as needed from sitting to standing while working. He may need 2 to 3 days off per month due to flare-ups. The Board remanded the Veteran's claim for an administrative decision from the Appeals Management Center in February 2015 for consideration of whether entitlement to consideration of an extraschedular evaluation under 38 C.F.R. § 3.321 was warranted. The Director of Compensation Service concluded in December 2015 that an extraschedular evaluation was not warranted. It was determined that the evidentiary record failed to show an exception disability pattern for the service-connected low back disability that rendered an application of the regular rating criteria as impractical. The primary symptoms - pain, limited motion, and additional functional loss during flare-ups and with repeated use over time, were plainly considered under the regular rating criteria. The VA examinations and other evidence of record were discussed in detail. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2015). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2015). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the Veteran's claim, the Board notes that the regulations for rating disabilities of the spine were revised during the pendency of the Veteran's claim, effective September 22, 2002, and additional changes effective September 26, 2003. See 68 Fed. Reg. 51454 (August 27, 2003). In this regard, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g), VAOPGCPREC 3-2000, see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Amendments with a specified effective date without provision for retroactive application may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. In this case, either the old or revised rating criteria may apply, although the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000. The record reflects that the Veteran was previously rated at 40 percent under Diagnostic Code 5299-5295. According to the rating criteria in effect prior to September 26, 2003, and the criteria in effect at the time the Veteran filed his claim, a 40 percent rating was warranted for a lumbosacral strain that is severe, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a (2003). Therefore, prior to April 25, 2005, the Veteran was receiving the maximum benefit available under Diagnostic Code 5295 as it existed prior to September 26, 2003. Higher ratings were available under the Diagnostic Code prior to September 26, 2003, for the residuals of a vertebral fracture and ankylosis of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289 (2003). However, the record does not reflect that the Veteran suffered a vertebral fracture during military service or that he suffered from favorable or unfavorable ankylosis prior to April 25, 2005. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 31st ed., 2007). The Board recognizes the Veteran was assigned a 50 percent evaluation from April 25, 2005, through August 11, 2005, in a March 2011 rating decision, for unfavorable ankylosis. Nonetheless, a higher evaluation of 100 percent is only warranted under the pre-2003 regulations for specific types of ankylosis - ;complete bony fixation of an unfavorable angle with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a (2002). There is no evidence of this type of ankylosis of record and the lay assertions do not suggest total bony fixation. As such, the highest available rating of 100 percent is not warranted at any time during the appeals period under the pre-2003 regulations. Under the revised provisions of Diagnostic Code 5293, in effect from September 23, 2002, to September 25, 2003, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopaedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Under this code, a higher evaluation of 60 percent is warranted for a pronounced condition with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc with little intermittent relief. Id. In the present case, the record reflects that the Veteran suffered from persistent back pain throughout the appeals period with only intermittent relief associated with neurological findings into the right lower extremity. As such, when affording the Veteran the full benefit of the doubt, the Board finds that an evaluation of 60 percent throughout the entire claims period is warranted. However, the preponderance of the evidence of record demonstrates that an evaluation in excess of 60 percent is not warranted at any time during the claims period, either under the regulations as they existed pre-2002 and 2003, or as they have existed since 2003. Effective September 26, 2003, the rating criteria applicable to diseases and injuries of the spine under 38 C.F.R. § 4.71a were amended by VA. These amendments included the changes made to the criteria used to evaluate intervertebral disc syndrome, which had become effective in the previous year. 68 Fed. Reg. 51,454 (Aug. 27, 2003). The criteria for evaluating intervertebral disc disease were essentially unchanged from the September 2002 revisions, except that the diagnostic code for intervertebral disc disease was changed from 5293 to 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2003). Specifically, the September 2002 intervertebral disc syndrome changes which were incorporated into the September 2003 amendments stipulate that intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A maximum 60 percent rating under the new criteria requires evidence of incapacitating episodes having a total duration of at least six weeks during the past 12 months. 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. Id at Note 1. The new criteria do not provide a basis for a rating in excess of 60 percent. Also according to the new law that went into effect on September 26, 2003, Diagnostic Code 5235 (vertebral fracture or dislocation), Diagnostic Code 5236 (sacroiliac injury and weakness), Diagnostic Code 5237 (lumbosacral or cervical strain), Diagnostic Code 5238 (spinal stenosis), Diagnostic Code 5239 (spondylolisthesis or segmental instability), Diagnostic Code 5240 (ankylosis spondylosis), Diagnostic Code 5241 (spinal fusion), Diagnostic Code 5242 (degenerative arthritis of the spine (see also Diagnostic Code 5003)); Diagnostic Code 5243 (intervertebral disc syndrome) are evaluated under the following general rating formula for diseases and injuries of the spine: 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 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2015). The Board finds that the preponderance of the evidence of record demonstrates that an evaluation in excess of 60 percent is not warranted under the new regulations at any time during the pendency of this claim. A higher rating requires evidence of ankylosis. See id. 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 (0 degrees) always represents favorable ankylosis. Id. at Note 5. There is no evidence of spinal fixation in this case, and as such, no evidence to warrant a higher rating. The August 2015 VA examiner also made a specific finding that the Veteran did not suffer from ankylosis. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Board notes that the Veteran has described symptoms such as back pain and loss of range of motion. He also reported weakness, fatigue and a lack of endurance on a regular basis. This limited his ability to perform activities such as bowling, washing dishes for too long or vacuuming. He was unable to work-out or play sports, including hockey. Walking and sitting for a prolonged period of time bothered his back. He also has reported stiffness during the pendency of this claim. He also reported difficulty with prolonged driving and using stairs. The August 2015 VA examiner also noted that while the Veteran did suffer from functional loss due to pain, he was still capable of forward flexion to 60 degrees and a range of motion in all other fields. Despite the above, the evidence of record does not reflect that the Veteran suffered from functional loss of such severity as to warrant a rating in excess of 60 percent for his lumbar spine. A February 2005 note reflects that the Veteran was still working and able to ambulate without assistive devices. The August 2015 VA examination report also reflects that the Veteran could move his spine (albeit in a more limited degree). The Veteran's functional loss does not suggest that he is so impaired as to justify a higher rating reserved for conditions such as vertebral fracture, ankylosis of the entire spine or 6 or more weeks of incapacitation. As such, the Veteran's degree of functional loss does not demonstrate that an evaluation in excess of 60 percent is warranted at any time during the pendency of the claim. The regulations in effect since September 26, 2003, instruct the rater to provide a separate evaluation for neurological abnormalities. The rating criteria instruct the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a Note 1. The record contains no evidence of bowel or bladder impairment, and while there is evidence of L4-S1 right radiculopathy, this symptom has already been used to justify the higher initial evaluation of 60 percent and he has already been service-connected for this condition. As such, a separate evaluation for any neurological abnormities is not warranted. In the November 2001, hearing the Veteran's representative argued that the Veteran could not function on a daily basis. He used medications daily and only worked because he had protected employment in which his boss allowed him to take time off with pay or lay down in the store rooms. The Veteran did not describe neurological symptoms aside from his right lower extremity (for which service connection has already been established). The representative also argued in a May 2007 statement that the Veteran should be awarded an additional award for pain and limited motion under DeLuca v. 8 Vet. App. at 202. The Veteran's representative noted that while the Veteran did not have limited motion due to pain at the time of his August 2005 VA examination, this was because the examination was performed only two weeks after the epidural injection. The representative opined, without medical evidence, that the injection masked the Veteran's limited range of motion, temporarily relieving him from pain. The Veteran's attorney also submitted arguments in December 2014, noting that a higher rating was warranted because the Veteran experienced persistent severe radiating lower back pain which was only occasionally temporarily relieved with medication use and rest and occasional muscle spasms associated with straightening of the lumbar spine, and that his symptoms were temporarily relieved by medication use and rest, but they had nonetheless been persistent throughout the appeal period and been found to be chronic manifestations of the low back disability. While the Board is sympathetic to the Veteran's complaints, they fail to reflect that a higher schedular evaluation is warranted at any time during the pendency of this claim, to include under the regulations as they existed prior to September 26, 2003, and since September 26, 2003. The now assigned 60 percent schedular rating is meant to compensate a Veteran with persistent low back pain with only intermittent relief. Neither the Veteran nor his representative has described any symptomatology that would warrant a schedular evaluation in excess of 60 percent at any time during the pendency of this claim. Resolving all reasonable doubt in favor of the Veteran, the Board finds that an evaluation of 60 percent is warranted throughout the pendency of the Veteran's claim. However, the preponderance of the evidence is against the claim of entitlement to an evaluation in excess of 60 percent at any time during the pendency of this claim, so the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable to this aspect of the claim. The claim of entitlement to an initial evaluation of 60 percent, and an evaluation of 60 percent throughout the entire appeal period, is granted. The claim of entitlement to an evaluation in excess of 60 percent at any time during the pendency of this claim is denied. Extraschedular Ratings Schedular determinations are based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2015), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). In response to the Joint Motion, the Board remanded the appeal so that it could be referred to the Director of VA's Compensation and Pension for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). In a December 2015 decision, the Director concluded that an extraschedular rating was not warranted. The Board may review that decision. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). There is a justiciably manageable standard limiting the Secretary's discretion for assignment of such a rating, namely that the extraschedular rating is commensurate with the average earning capacity impairment due exclusively to service connected disability or disabilities. In the Joint Motion it was noted that the Veteran had reportedly missed 65 days of work in 2005 due to his back disability. Prior to 2009, he continued to be gainfully employed and with the exception of the 2005 report, lost approximately 7 to 8 of work due to low back pain. The average month has approximately 4.33 weeks with between 20 and 21 work days, based on a five day work week. By these calculations the Veteran lost a maximum of over three months of work in any calendar year; and would equate to loss of about 25 to 30 percent of his normal work time (and presumably income) as a carpenter. His schedular compensation is intended to compensate for a 60 percent loss in average earning capacity. Hence, the schedular rating is at least commensurate with the average loss of earning capacity. The Veteran has been unemployed and in receipt of a TDIU for most of the time since 2009. This was based on the combination of his service connected disabilities; but the total rating would compensate for a total loss of average earning capacity. The August 2015 VA examination report notes that the Veteran would be capable of employment with reasonable accommodations such as an ergonomic chair and flexibility to stand and sit when needed. The rating schedule is meant; however, to compensate for average impairment in earnings and for considerable time lost from work due to service connected disabilities. 38 C.F.R. § 4.1 (2015). In sum, the evidence does not show that an extraschedular rating is needed to compensate the Veteran for a loss in average earning capacity. Special Monthly Compensation (SMC) Pursuant to 38 U.S.C. § 1114(s), SMC is payable at the housebound rate when a veteran has a service-connected disability rated as 100 percent disabling, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or, (2) is permanently housebound because of a service-connected disability or disabilities. See also 38 C.F.R. § 3.350(i) (2015). An award of TDIU, if it based upon a single service-connected disability, is sufficient to satisfy the section 1114(s) requirement of a service-connected disability rated as 100 percent disabling. Bradley v. Peake, 22 Vet. App. 280, 293 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2010) ("[A TDIU rating] that is based on multiple underlying disabilities cannot satisfy the section 1114(s) requirement of 'a service-connected disability' because that requirement must be met by a single disability."). In this case, the Board's grant of TDIU was based on the low back disability, rated 60 percent disabling; right abdominal rectus muscle disability, rated 10 percent disabling; and right leg radiculopathy, also rated 10 percent disabling. There is thus, no single service connected disability rated total. ORDER The claim of entitlement to an initial evaluation of 60 percent is granted. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs