Citation Nr: 1744063 Decision Date: 10/03/17 Archive Date: 10/13/17 DOCKET NO. 13-08 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for lumbar degenerative disc disease (DDD), rated 20 percent disabling. REPRESENTATION Appellant represented by: Adam Werner, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from January 1997 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a May 2016 videoconference before the undersigned Veterans Law Judge (VLJ) as to the issue stated on the title page, and a transcript is of record. Following receipt in February 2014 of claims for service connection, set forth by the Veteran's attorney, an appeal was perfected from an October 2014 rating denying service connection for a neck disorder, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity, all claimed as due to the service-connected lumbar DDD. However, in the Substantive Appeal, VA Form 9 Appeal to the Board, received on November 10, 2016, which perfected that appeal, it was requested that the Veteran have the opportunity to testify at a videoconference in support of those claims. A November 22, 2016 Report of General Information reflects that at a prior informal telephone conference with a Decision Review Officer (DRO) it was requested that a decision be made on the basis of the evidence of record with no further hearing at the RO and that the attorney would submit a new VA Form 9. Thereafter, with a letter from the attorney dated November 22, 2016, together with a new VA Form 9 was received but it also requested that the Veteran be provided the opportunity to testify at a videoconference. VA is free to separate claims and adjudicate them in separate pieces. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed.Cir. 2011). See also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). Accordingly, as the Veteran had not yet had the opportunity to testify as to those claims they will not be addressed herein. As to this, the Board notes that in correspondence in June 2017 the Veteran's representative requested that the Veteran be furnished a VA examination as to the claims for service connection for radiculopathy, including nerve conduction velocity studies. This appeal was processed using the Veterans Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file (now described as Legacy Content Manager Documents). Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Prior to June 16, 2016, the Veteran's thoracolumbar flexion was to not less than 40 degrees and he did not have incapacitating episodes of intervertebral disc syndrome of a total duration of at least 4 weeks in any 12 month period. 2. Since June 16, 2016 the Veteran has not had incapacitating episodes of intervertebral disc syndrome of a total duration of at least 4 weeks in any 12 month period but his thoracolumbar flexion has been limited to 30 degrees, although he has not had thoracolumbar spine ankylosis, either favorable or unfavorable. CONCLUSIONS OF LAW 1. Prior to June 16, 2016, the criteria for a rating in excess of 20 percent for lumbar DDD were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2016). 2. Since June 16, 2016, the criteria for a rating of no more than 40 percent for lumbar DDD have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development. VA's duty to notify was satisfied by a February 2010 RO letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to the duty to assist, the Veteran's service treatment records (STRs) are on file as are VA treatment records. Private clinical records are on file. The Veteran was afforded VA rating examinations in March 2010 and September 2014. The Veteran's attorney was provided a copy of the Veteran's complete records in September 2014. Also, the Veteran testified in support of his claim at a May 2016 videoconference and a transcript is of record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (citing 38 C.F.R. § 3.103(c)(2)). At the hearing it was agreed to hold the case open for 60 days for the submission of additional evidence. Page 10 of the transcript. Thereafter, a June 2016 report of an evaluation by a private physician was submitted. Neither the Veteran nor his representative has raised any issue with respect to the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In light of the foregoing, the Board concludes that there has been full VCAA compliance. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007); see also Stegall v. West, 11 Vet. App. 268 (1998). Background A November 1999 rating decision granted service connection for lumbar DDD and assigned an initial 20 percent disability rating, based on evidence and information contained in the STRs, on the basis of painful and limited motion, citing DCs 5293-5292 (intervertebral disc syndrome (IVDS) and limited lumbar motion). A VA examination in January 2001 indicates that an MRI during military service revealed two herniated discs. The Veteran's main complaint was back pain and he denied any paresthesias or radiation of pain into his legs. He got back pain when attempting to do any activities or with bending or lifting. On examination straight leg raising was possible, and to a greater extent on the left than the right. There were no reflex, sensory or motor deficits in the lower extremities. There was no weakness of the extensor halluces longus or anterior tibial muscles. There was good gluteal muscle tone. He could arise on his heels and on his toes. His pelvis was level and there were no paralumbar muscle spasms. Lumbar flexion was to 45 degrees, and lateral bending was to 15 degrees to the right and to the left. All motions were accompanied by pain. The diagnosis was lumbar DDD, by physical examination and history of a positive MRI. Thereafter, a January 2001 rating decision confirmed and continued the 20 percent rating, citing DC 5292 (for moderate limitation of lumbar motion). Employment records show that the Veteran used 2 hours of leave for a doctor's appointment in 2005. In 2006 he used 25.5 hours; in 2007 he used 45 hours; in 2008 he used 41.5 hours; and in 2009 he used 38.5 hours. VA outpatient treatment (VAOPT) records show that in December 2009 the Veteran reported that his back pain was worsening, and radiated down both legs to his thighs but not his feet. Neurologically, he ambulated independently and could walk on his heels and on his toes without any difficulty. Neurologically, he was intact. He had pain in all planes of thoracolumbar motion. On VA examination in March 2010 the Veteran's medical records were reviewed. He reported that his low back pain had become more frequent and more intense, with pain radiating down both legs to his feet. He took medications and used a TENS unit. He had not had surgery. There was no history of urinary incontinence, urgency or frequency. There was no fecal incontinence or erectile dysfunction. He reported having numbness but not paresthesias or weakness of the legs or feet. There was a history of decreased motion, stiffness, and spasms but no fatigue or weakness. He had constantly and daily had moderate pain with stretching or lifting. He reported having severe weekly flare-ups which lasted for hours and were alleviated by rest. He was able to walk more than 1/4 mile but less than 1 mile. On physical examination the Veteran's posture was normal and his head was in a normal position. The spine was symmetrical in appearance. His gait was antalgic. There was no spinal gibbus, kyphosis, listing, lumbar flattening, scoliosis, reverse lordosis or thoracolumbar ankylosis. There was pain on motion to the right and to the left. There was tenderness and spasm on the left, not the right, but it did not cause an abnormal gait or abnormal spinal contour. There was no guarding, weakness or atrophy. All tested modalities of sensation were normal in both lower extremities. Deep tendon reflexes (DTRs) were normal at the knees and ankles. Plantar responses (Babinski) were normal, bilaterally. Active thoracolumbar flexion was to 40 degrees, extension was to 5 degrees, left lateral bending was to 10 degrees, right lateral bending was to 15 degrees, and right as well as left rotation were to 15 degrees (for a total of 100 degrees of range of motion). There was no additional limitation of motion after three repetitions of motion. The examiner noted that the Veteran had not provided full cooperation in testing of his ranges of motion, and that the limitations of range of motion were out of proportion to other clinical findings. It was noted that a November 2009 MRI had confirmed mild L4-5 and L5-S1 lumbar spondylosis. The Veteran currently had a full-time job and in the last 12 months he had lost 2 weeks of work due to his low back condition. The diagnosis was lumbar spondylosis with canal stenosis and disc bulging at L4-5 and disc bulging at L5-S1, producing S1 nerve root compression. As to the effects on his usual daily activities, there were none as to feeding and bathing; mild as to shopping, recreation, traveling, and dressing; moderate as to performing chores; and severe as to exercise and sports. The May 5, 2010 rating decision which is appealed confirmed and continued the 20 percent rating. Consideration was given to an evaluation on the basis of IVDS under DC 5243, which was cited in the Code Sheet, but the narrative portion of that rating decision confirmed and continued the 20 percent rating on the basis that forward lumbar flexion was to 40 degrees and the combined range of thoracolumbar motion was 100 degrees, under the General Rating Formula for Diseases and Injuries of the Spine. A May 27, 2010 letter from the Veteran's supervisor at the Office of Transportation in Broward County, Florida, states that he had been absent due to illness for nine (9) days from January 2010 to May 27, 2010. Also received were records indicating that he had missed 13 days of work for an unspecified medical condition in 2010. Employment records include a February 3, 2010 prescription note of a physician that the Veteran was to be out of work for five days, from the 3rd to the 8th of February 2010. A September 10, 2010 report of a Counseling Record for VA Vocational Rehabilitation reflects that in December 2000 the Veteran began working for AT&T as a service technician, mainly being responsible for cable installations. This was very physically demanding work that aggravated his back condition. He worked for AT&T until April 2003, when he was laid off because the company merged with Comcast. While he was working at AT&T he was found to be entitled to Chapter 31 because his job duties were aggravating his back. A plan was developed for him to complete certificate training in A+ and as a Microsoft Certified Systems Engineer (MCSE). He completed his training and was seeking employment but then decided to return to school for a college degree. He began attending Broward Community College to obtain an Associates Degree in Computer Engineering. His case was closed as successfully rehabilitated in September 2004. He reported that he spent about two years in school and completed about 30 to 35 credits but he stated that he had not earned a degree. He did not work while he was in school. In July 2005 he was hired by the Broward County Transit Authority as a Transit Operations Agent. He was responsible for providing customer service and route information to inbound callers. He reported that his supervisors knew that he had a back condition and allowed him to move around and stretch, as needed. He also reported having a comfortable chair. The Veteran stated that he had missed about 10 days of work so far this year due to his back pain, but he had never received a reprimand or negative performance evaluation. He stated that his performance on his job was good and his job was not in jeopardy. He stopped attending school once he started this job because his work schedule interfered with his class schedule. He had not returned to school nor had he aggressively searched for other employment. He reported having pain and tingling in both legs. He had pain with prolonged standing, walking, running, sitting, climbing, bending, lifting, and carrying heavy items. He had been given a back brace, which he did not wear often, and a cane, which he refused to use. He stated that he was too young to need a brace and a cane, and so did not want to use them. He was treated at a pain management clinic, and was prescribed Flexeril, Gabapentin, and a TENS unit. He was scheduled to start physical therapy next month. It was recommended that the finding that the Veteran had been rehabilitated should not be overturned and his case should not be re-opened. His service-connected disability rating had not been increased. He was currently suitably employed, and had been a Transit Operations Agent for 5 years. This was stable employment and a continuing position within a county government, offering the full array of government benefits. His customer service position required some computer skills because he was responsible for navigating through county-specific computer systems and databases. His education and skill level required for this position was in keeping with his current level of education and work history. The Veteran also reported that he had the flexibility to move around as needed, had comfortable seating, had never received negative performance evaluations, and his job was not in jeopardy. Furthermore, he had never attempted to work in the computer industry and he had never aggressively sought employment in that field. So, there was no evidence to determine that he could not work in that field. VAOPT records show that the Veteran was seen in February 2013 for pharmacy refills and that he had last been seen in November 2011. On examination his gait was normal and he did not require any assistive devices. He had mild tenderness of the paraspinal muscles of the lumbar area, and had pain on both flexion and extension of spine (equally). Straight leg raising (SLR) was negative other than causing left-sided back pain. Neurologically, he was 5/5 throughout. On VA examination in September 2014 the Veteran's electronic records were reviewed. He had a diagnosis of lumbar spondylosis. He reported having dull or sharp pain, which radiated to the left leg. He had undergone acupuncture, physical therapy, and had been given Meloxicam (which he had stopped taking). Currently he took Morphine, Oxycodone/Acetaminophen, and used a TENS unit. He reported having flare-ups, during which he could hardly walk. On physical examination thoracolumbar flexion was limited to 60 degrees and extension was to 15 degrees due to the onset of pain. Right and left lateral bending were limited to 15 degrees due to the onset of pain. Right and left lateral rotation were limited to 20 degrees due to the onset of pain (for a total of 145 degrees of painless motion). The Veteran was able to perform three repetitions of motion, following which there was no change in his ranges of motion. He had functional loss or impairment due to limitation of motion and painful motion. He had localized tenderness or pain to palpation of the joints and/or soft tissue in the midline at L5-S1. He had muscle spasms and guarding of the thoracolumbar spine which did not result in an abnormal gait or abnormal spinal contour. Strength in hip flexion, knee extension, great toe extension, as well as plantar flexion and dorsiflexion of the ankles was 5/5. There was no muscle atrophy. Reflexes were normal at 2+ at the ankles and knees. Sensation to light touch was normal throughout both lower extremities. SLR was negative, bilaterally. He did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no spinal ankylosis. It was reported that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems/pathologic reflexes). He had thoracolumbar IVDS but had not had any incapacitating episodes over the past 12 months. He did not use any assistive device(s) as a normal mode of locomotion. There were no surgical scars. X-rays had documented thoracolumbar arthritis but no thoracic vertebral fracture with loss of 50 percent or more of height. An MRI had found minor stable spondylosis without neural compression. The examiner stated that the Veteran's thoracolumbar spine condition impacted his ability to work because in his employment in customer service for Broward County he had to leave early or call in sick, had to stretch and walk due to difficulty with prolonged sitting. The examiner opined that there was no objective evidence of left lumbar radiculopathy on the current examination, and that it would be speculative to provide accurate ranges of motion during a flare-up or after repetitive use over time since there was no flare-up at the time of the examination. This information could not be provided based on a hypothetical situation. At the May 2016 videoconference the Veteran's attorney stated that the Veteran was employed with Broward County, in Florida, and that he called in sick a lot because of his back, as would be shown by employment records. Page 4. The Veteran testified that his back condition had worsened since he was given a 20 percent disability rating in 1999. Page 4. It was causing problems in other areas, and sometimes caused difficulty walking. It was hard for him to sit still in one place. He had constant pain on a daily basis. The Veteran's attorney did not have his employment records as to his usage of sick leave at the hearing but the Veteran confirmed that it was fair to say that in the last 12 months he had been incapacitated at least four weeks, including weekends. Page 5. The Veteran testified that his condition was worse on weekends. His employer accommodated him to allow him to miss many days of work, and more than he was supposed to be allowed to miss. Page 6. The Veteran earned 3 or 4 hours of sick leave every two weeks but the amount of sick leave he used exceeded that amount, using about 16 hours a month. He missed at least about two days of work a month due to his back disability. Page 7. The Veteran testified that when he was incapacitated he was in a lot of pain and had to stay in bed a lot, or just move from the bed to a chair. The duration varied but sometimes lasted an entire day and sometimes for several days in a row. Page 8. During such episodes he required the assistance of a family member or friend in order to feed himself, and perform the basic activities of daily living. He had to have help getting out of bed and someone to bring him food or whatever he might need throughout the day. The Veteran indicated that he would attempt to get records of the time he missed from work. Page 9. Following the videoconference, a June 16, 2016 report of an evaluation by Dr. T. R., a spinal surgeon, reflects that since his inservice back injury the Veteran had had a litany of conservative care including therapy and multiple injections with medication management, to no avail. He continued to have severe low back and left lower extremity pain in an L5-S dermatomal distribution. MRIs have been done on multiple occasions showing disc pathology at the L4-5 and L5-SI levels with left-sided compression of the L5 -S I nerve roots. His pain level was 8 on a scale of 10. He walked with an antalgic gait favoring the right lower extremity. There had been no bowel or bladder disturbance or any progression of his neurologic deficit. The epidural steroid injections did provide him some benefit; however, he had had only one to two weeks of relief with epidural injections. He presented now for a general evaluation. His current medications were Oxycotin and Oxycondone. The Veteran denied weakness or fatigue. He was given a general medical examination. He complained of back pain, arm pain, arthritis, arm weakness, balance disturbance, coordination of arm and leg problems. As to his thoracic region there was no tenderness and he had full range of motion. There were normal motor, sensory, and reflex testing to the upper extremities and right lower extremity. Regarding the left lower extremity, there was diminished sensibility down the posterolateral aspect of the thigh, lateral leg, posterior thigh, posterior leg, dorsal and posterior foot. SLR testing was positive on the left at 50 degrees but negative on the right. There was no joint tenderness. There was positive sciatic notch tenderness on the left. As to lumbar range of motion, he could bring his fingertips down to touch the lower thighs with flexion at 30 degrees. Extension and lateral bending were to about 20 degrees. He walked with an antalgic gait favoring the right lower extremity. There was no clonus. The left Achilles reflex was diminished but otherwise, reflexes were intact in both lower extremities. Strength is intact at 5/5 throughout the extremities. The assessments were lumbar disc disruption at L4-5 and L5-SI, and left lumbar syndrome. It was recommended that the Veteran have a left-sided micro-discectomy at L4-5 and L5-S I to best optimize his condition over the longer term and allow him to wean down when the narcotics become more functional. Rating Principles Service-connected disorders are rated by comparing signs and symptoms with criteria in separate Diagnostic Code (DCs) which identify various disabilities listed in VA's Schedule for Rating Disabilities, based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Disabilities are viewed historically and examination reports are interpreted in light of the history, reconciling the report into a consistent picture to accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. A higher rating is assigned if a disorder more nearly approximates the criteria therefore but not all disorders will show all the findings specified for a particular disability rating, especially with the more fully described grades of disabilities but coordination of ratings with functional impairment is required. 38 C.F.R. §§ 4.7, 4.21. Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). A higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Veteran and other laypersons are competent to testify on factual matters of which they have first-hand knowledge, such as symptoms of pain, and are competent to describe symptoms and their effects on employment or daily activities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). 38 C.F.R. § 4.71a, DC 5243, i.e., the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, provides that the pertinent considerations for rating IVDS are (1) incapacitating episodes (defined in Note 1 as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by and treatment by a physician) during the immediately preceding 12 months and, if so, the total duration of them, or (2) the combination of the neurologic and orthopedic manifestations of the disability under 38 C.F.R. § 4.25. Whichever method results in the higher evaluation must be used. As to incapacitating IVDS episodes in the past 12 months, if they have a total duration of at least 1 week but less than 2 weeks, a 10 percent evaluation is warranted; if they have a total duration of at least 2 weeks but less than 4 weeks, a 20 percent evaluation is warranted; if they have a total duration of at least 4 weeks but less than 6 weeks, a 40 percent evaluation is warranted; if they have a total duration of at least 6 weeks during the past 12 months, a 60 percent evaluation is warranted. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician's office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 67 Fed. Reg. 54345, 54347 (August 22, 2002). Musculoskeletal Ratings Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due pathology, or to pain which is supported by adequate pathology and as evidenced by the visible behavior during motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The factors of joint disability reside in reductions of normal motion in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints as entitled to at least the minimum compensable rating for the joint. Painful motion with joint or peri-articular pathology are productive of disability, and crepitation should be noted as points of contact which are diseased. 38 C.F.R. § 4.59. 38 C.F.R. §§ 4.40 and 4.59 apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). When assessing the severity of a musculoskeletal disability rated on limited motion, consideration is given to the extent of additional functional impairment above and beyond the limitation of motion objectively demonstrated, e.g., during flare-ups due to the extent of his pain, painful motion, weakness, premature or excess fatigability, and incoordination - assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The holding in Mitchell v. Shinseki, 25 Vet. App. 32, 40-41 (2011) that painful motion without functional loss did not constitute compensable limited motion, was premised on 38 C.F.R. §§ 4.40 and 4.45, but in Burton v. Shinseki, 25 Vet. App. 1, 5-6 (2011) it was held that painful motion without functional loss did warrant a minimum compensable evaluation under 38 C.F.R. § 4.59. For the minimum compensable rating for motion which is painful but not actually limited to a compensable degree, a claimant's bare statement is not satisfactory evidence of painful motion. Petitti v. McDonald, 27 Vet. App. 415 (2015) (per curiam). Thoracolumbar Spine Rating Criteria The General Rating Formula for Diseases and Injuries of the Spine uses objective criteria and other pertinent considerations with or without symptoms such as pain (radiating or not), stiffness, or aching and, thus, encompass and take into account these symptoms and removes any requirement that there be such symptoms to assign any evaluation. 68 Fed. Reg. at 51454 - 51455 (August 27, 2003). Note 2 sets forth maximum ranges of motion for the spinal segments, except that a lesser degree of motion may be considered normal (if the cause is explained as required in Note 3) and Note 4 states that range of motion should be measured to the nearest five degrees. Note 2 to the General Rating Formula for Diseases and Injuries of the Spine provides that normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, left and right lateral flexion as well as left and right lateral rotation are to 30 degrees. See also 38 C.F.R. § 4.71a, Plate V. The combined range of motion refers to the sum of these ranges of motion and the normal combined range of motion 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. A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees (the maximum combined range of motion being 240 degrees), or if there is either (1) muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, (2) vertebral body fracture with loss of 50 percent or more of body height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees (the maximum combined range of motion being 240 degrees), or if there is either (1) muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, e.g., scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. See Nix v. Brown, 4 Vet. App. 462, 465 (1993) and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Analysis In considering entitlement to a rating in excess of 20 percent based on the criteria for evaluating IVDS, the Board has given due consideration to the Veteran's testimony that his lumbar DDD has caused him to miss work for a total of at least 4 weeks during any given 12 month period. However, regulations require that bed rest must be prescribed by a physician. Moreover, if there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 67 Fed. Reg. 54345, 54347 (August 22, 2002). In this case, the employment records fall far short of demonstrating that he missed work for a total of at least 4 weeks in any 12 month period and, also, only a five day period of missed work in 2010 is shown to have been prescribed by a physician. The Veteran's testimony of having had incapacitating episodes of at least 4 weeks in a 12 month period may not, unaccompanied by other evidence, take the place of the regulatory requirement that bed rest for IVDS must be prescribed by a physician. Here, there is no evidence, lay or medical, that other than the 5 day period in 2010, the Veteran has ever had bed rest which was prescribed by a physician. As noted, the Formula for Rating IVDS Based on Incapacitating Episodes provides for an alternative method for arriving at an appropriate disability evaluation for IVDS, i.e., the combination, under 38 C.F.R. § 4.25, of disabling orthopedic and disabling neurologic manifestations of IVDS. In this regard, the Court has held that the Board does not lack jurisdiction over issues that were not explicitly discussed by the RO if the issues are related to the matter on appeal; rather, "[o]nce the Board has jurisdiction over a claim, ... it has the authority to address all issues related to that claim, even those not previously decided by the RO." Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (en banc) (emphasis added); see also Bernard v. Brown, 4 Vet. App. 384 (1993) (addressing whether it was appropriate to address, for the first time, de novo entitlement to service connection after finding that new and material evidence had been submitted to reopen a previously denied claim for service connection). However, the holding in Jarrell, Id., was in the context of addressing a motion for revision of a prior rating decision denying service connection, and not in the context of a claim for an increased rating. Moreover, in Jarrell, Id., it was held that "[t]o exercise this authority with regard to questions or issues not previously addressed by the RO, the Board must secure a waiver from a claimant or otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the question or issue." Jarrell, Id. at 332. In this case, the RO has specifically denied entitlement to service connection for radiculopathy of each lower extremity, as not being due to the Veteran's service-connected lumbar DDD. In fact, also as noted, these claims for service connection have not been certified for appellate review because the Veteran has not yet been afforded a videoconference, as has been requested. Accordingly, the Board finds that the Veteran would be prejudiced by the Board's attempt to adjudicate the matter of any neurologic disability of the lower extremities putatively due to the Veteran's service-connected lumbar DDD. However, should the Veteran ultimately be successful in his claims for service connection for radiculopathy of one or both lower extremity(ies), a separate disability evaluation may be assigned, for combination with the ratings assigned over the appeal period for the orthopedic manifestations of the service-connected lumbar DDD, i.e., for combination with a 20 percent rating prior to June 16, 2016, and a 40 percent rating as to June 16, 2016. Moreover, the overall combined rating would be dependent upon not only any rating assigned for neurologic disability but also the effective date(s) predicated at least in part upon the effective date of any potential grant(s) of service connection. Thus, there is no prejudice to the Veteran in not adjudicating the matter of any neurologic manifestations of lumbar DDD which putatively affect the Veteran's lower extremities. As to a higher rating on the basis of the orthopedic manifestations of the lumbar DDD, for a rating in excess of 20 percent there must be either favorable ankylosis of the entire thoracolumbar spine, or limitation of thoracolumbar flexion of 30 degrees or less. In this case, there is no competent evidence that the Veteran has ever had ankylosis of the thoracolumbar spine, and it is not otherwise contended. As to limited thoracolumbar flexion, repeated examinations from 2001 to 2014 demonstrated that the Veteran had not less than 40 degrees of thoracolumbar flexion. In this regard, the findings of pain on motion are encompassed in the 20 percent rating assigned. The examination in 2010 found reflexes and sensation in the lower extremities were normal and while it was reported that he had an antalgic gait the examination also found that any muscle spasm or guarding did not cause either an abnormal gait or abnormality spinal contour. Similarly, the 2014 examination found no deficits as to lower extremity strength, reflexes or sensation. It is only since the June 16, 2016 examination by a private physician that the Veteran has been found to have thoracolumbar flexion which was limited to 30 degrees. This is the earliest evidence that the Veteran met the schedular rating criteria for a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine. However, that examination, just as the record as a whole, does not demonstrate that the Veteran has, or has ever had, thoracolumbar ankylosis. Accordingly, only since June 16, 2016, the Veteran has met the schedular rating for a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board holds that the preponderance of the evidence is against finding that a rating in excess of 20 percent is warranted for lumbar DDD prior to June 16, 2016, or to a rating in excess of 40 percent since June 16, 2016. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration In this case the Veteran's lumbar DDD is his only service-connected disorder. An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). This requires a three-set inquiry. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). First, is whether the evidence presents such an exceptional disability picture that the schedular evaluations are inadequate, necessitating a comparison between the level of severity and symptoms with the rating criteria, and if the criteria reasonably describe the symptoms and level of severity, the assigned schedular rating is adequate and no referral is required. Second, if the schedular rating does not contemplate the symptoms and level of severity and is inadequate, it must be determined if there exists and exceptional disability picture which exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, if the first two inquiries are met, then the case is referred to the appropriate VA official for consideration. Id. If either (1) the claimant's disability picture is adequately contemplated by the rating schedule or (2) there are no other related factors," for example, frequent hospitalizations or marked interference with employment, then referral is not warranted and the other element need not be considered. The order in which these elements are addressed is irrelevant because they both have to be met before referral is warranted. See id.; Thun, 22 Vet. App. at 116; see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). The holding in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) was that consideration of improvement in disability due to medication is precluded when not provided for in applicable schedular rating criteria. However, that holding was limited specifically to the application of schedular rating criteria and does not preclude such consideration in the context of extraschedular consideration. See Jones v. Shinseki, 26 Vet. App. at 61, footnote 4. While it is true that the schedular rating criteria do not always address the symptoms specifically described by a veteran this alone does not mean that the rating criteria are inadequate. 38 C.F.R. § 4.1 provides "that percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and that "the degrees of disability specified 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." As to any contention, express or implied, that because the rating criteria are silent as to effects of occupational and daily activities, the rating schedule does not contemplate the total disability picture, this is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the appellant has not demonstrated that the rating schedule is otherwise inadequate in any way. See 38 C.F.R. §§ 3.321(a), 4.1; see also Dedrick v. Shinseki, No. 13-1166, slip op. at 9 (U.S. Vet. App. Apr. 4, 2014) (nonprecedential memorandum decision). Also, the Veteran may receive a higher rating if the service-connected disorder worsens to such an extent as to meet the schedular criteria for such a rating. The significance of the availability of potentially higher schedular rating is that the Court's holding in Thun v. Peake, 22 Vet. App. 111,115 (2008) was that "[t]he threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available [italics added] schedular evaluations for that service-connected disability are inadequate..." In other words, it is not solely the adequacy of the current schedular rating assigned which must be considered but the Rating Schedule as a whole as a vehicle for assigning the proper disability ratings. Implicitly, the holding in Thun, Id., was that to limit consideration only to the criteria provided for the currently assigned rating would preclude, in determining whether the schedular criteria in the Rating Schedule were adequate, consideration of all criteria used in rating a particular disability. Stated even more simply, the Court's case law has established that whether higher schedular ratings are "available" is a factor, albeit not the only factor, for consideration of whether the Rating Schedule is adequate for rating purposes (the first analytic step set forth in Thun v. Peake, 22 Vet. App. 111 (2008)). The statements or findings of impaired function as to certain activities pertain to and are reflections of the functional limitations that are contemplated by the governing DC criteria and corresponding regulations, e.g., pain, painful motion, limitation of motion, weakness, numbness, and reduced strength. Specifically, a wide range of signs and symptoms are contemplated in the applicable rating criteria, including pain, loss of motion, painful motion, muscle spasm, ankle jerks, and other neurological findings as to strength and sensory function. Logic dictates that all of these types of symptoms will, necessarily, impact upon functional activities. Thus, both the symptoms and the anticipated limitation of functional activities are contemplated by the rating criteria. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40 (2013), 4.45. In fact, 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as sciatic neuritis, unstable or malaligned joints, and crepitation. The level of severity and symptomatology of the Veteran's service-connected lumbar DDD has been carefully compared with the established criteria found in the rating schedule. In essence, the Veteran's symptoms, which result in functional impairment including limitation of motion due to pain, are addressed by the rating criteria under which such disability is rated. Next, the Board will address functional impairment as it relates to specific activities. One such activity is cooking. Such impairment does not usually involve using the lumbar spine in bending, and mostly involves usage of the shoulder and arm. To the extent that cooking requires forward flexion, such specific measure of motion is explicitly part of the schedular rating criteria. As for functional impairment with dressing oneself, the specific acts of bending or twisting of the back that may be required to dress oneself are contemplated by the schedular rating criteria based on limited and painful motion. For example, to the extent that dressing oneself requires forward flexion, such forward flexion is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. To some lesser extent, dressing oneself may require lumbar extension, lateral flexion, and rotation, which are all part of the schedular rating criteria under combined range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. As to functional impairment with respect to exercise, to the extent that exercise involves prolonged standing, sitting, walking, bending, disturbance of locomotion, or instability of station, such functional impairment has been considered by the Board and is contemplated under the schedular rating criteria. See 38 C.F.R. § 4.45 (disturbance of locomotion, instability of station, and interference with sitting, standing, and weight-bearing are considered as functional limitation under the schedular rating criteria). As to potential functional impairment with respect to grocery shopping, or shopping generally, including in this case any possible use of a cart when shopping, as well as lifting, including the lifting of day-to-day objects, the slight lateral or twisting movements required for lifting objects such as groceries or other day-to-day objects (to the extent the lifting is performed by the back rather than only arms and shoulders) may suggest lifting of the objects in the position of slight forward flexion, although simply lifting objects may equally involve minimal back flexion or movement when lifting by primarily using the legs, arms, and shoulders. As such, to the extent that these activities may involve forward flexion of the lumbar spine, such forward flexion is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. To the extent that lifting shopping items or other items may require extension, lateral flexion, and rotation, such movements are part of the schedular rating criteria under combined range of motion. As to any possible functional impairment with respect to house cleaning, to the extent that house cleaning involves any type of lumbar spine motion, all limitations of motion of the spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine are considered in arriving at a rating for the orthopedic manifestations of a spinal disorder. See 38 C.F.R. § 4.71a, Plate V. "Interference with sitting" is considered as part of the schedular rating criteria and, likewise, interference with standing and weight-bearing, as well as instability of station, are considered as part of the schedular rating criteria. Prolonged walking is part of the schedular rating criteria which contemplates disturbance of locomotion and interference with weight-bearing because prolonged walking necessarily involves weight-bearing. See 38 C.F.R. § 4.45. The minimal forward flexion of the back required to position oneself for standing by using the legs (as lifting is primarily performed with the legs, rather than the back) is contemplated by the schedular rating criteria based on limitation of motion, and specifically forward flexion, to include as due to pain and other orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability. To the extent that any of these activities causes incidental pain, such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (the schedular rating criteria contemplate limitation of spinal motion with or without symptoms such as pain, whether or not it radiates); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, No. 14-0217 (Vet. App. Feb. 12, 2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). To the extent that the schedular rating criteria do not specifically list the disabling effects of pain and discomfort caused by the service-connected disorder, such pain and discomfort are factors for rating consideration and, moreover, are not shown to be of such severity as to take the service-connected disorder outside of the norm contemplated by the rating schedule. Accordingly, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology as well as functional impairment due to the service-connected disability. Thus, the Board cannot conclude that the schedular rating criteria are inadequate. This is particularly true when, as here, higher schedular ratings are possible; particularly if the Veteran actually develops greater functional impairment in the future. Consequently, referral of this case for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). (CONTINUED ON NEXT PAGE) ORDER A rating for lumbar DDD in excess of 20 percent prior to June 16, 2016 is denied. A rating of no more than 40 percent for lumbar DDD since June 16, 2016, is granted subject to applicable law and regulations governing the award of monetary benefits. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs