Citation Nr: 1751118 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-21 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to increases in the "staged" (20 percent from September 29, 2006, and 40 percent from March 24, 2016) ratings assigned for fibromyalgia. 2. Entitlement to increases in the "staged" (10 percent from September 29, 2006, and 20 percent from March 24, 2016) ratings assigned for lumbar spine degenerative disc disease (low back disability). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1956 to August 1969 and from December 1980 to April 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. In May 2016, the Board remanded the claims for additional development. An interim (October 2016) rating decision by the Appeals Management Center (AMC) granted "staged" increases for fibromyalgia (40 percent) and the low back disability (20 percent), effective March 24, 2016, each. In December 2016, the Board again remanded the claims for additional development. In a statement received in July 2017, the Veteran requested additional time to submit a statement regarding the claims on appeal. No such argument has been received from the Veteran, but his representative submitted an appellate brief on his behalf in October 2017. Accordingly, the Board will proceed with adjudication. [The May 2016 Board decision also granted the Veteran a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). A June 2016 rating decision implemented the Board's decision, assigning a TDIU rating from January 17, 2012. The October 2016 rating decision also granted service connection for radiculopathy of each lower extremity secondary to the service-connected low back disability, effective March 24, 2016, each. The Veteran did not file a notice of disagreement with any aspect of either rating decision, and those matters are not before the Board.] This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to April 4, 2012, the Veteran's fibromyalgia was manifested by widespread musculoskeletal pain and tender points with associated symptoms that were constant, or nearly so, and refractory to therapy. 2. From April 4, 2012 to March 24, 2016, the fibromyalgia was manifested by symptoms that were episodic but present more than one-third of the time. 3. From March 24, 2016, the fibromyalgia has been manifested by widespread musculoskeletal pain and tender points with associated symptoms that were constant, or nearly so, and refractory to therapy. 4. A 40 percent rating is the maximum schedular rating for fibromyalgia, and symptoms or impairment not encompassed by the schedular criteria are not shown (and are not specifically alleged) at any time during the appeal period. 5. Prior to April 4, 2012, the Veteran's low back disability was manifested by painful, limited motion, but not by a limitation of flexion to 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, or bed rest prescribed by a physician. 6. From April 4, 2012, the Veteran's low back disability is reasonably shown to have been manifested by a limitation of flexion to 60 degrees, but not by a limitation of flexion to 30 degrees or less, ankylosis, or bed rest prescribed by a physician. 7. From June 6, 2008 to June 25, 2008, the Veteran's low back disability is also shown to have been manifested by moderately severe radiculopathy of the right lower extremity; prior to June 6, 2008 and from June 25, 2008 to March 24, 2016, radiculopathy of either lower extremity was not shown; neurological manifestations other than radiculopathy are not shown at any time during the appeal period. CONCLUSIONS OF LAW 1. The Veteran's fibromyalgia warrants "staged" ratings of 40 percent (but no higher) prior to April 4, 2012, 20 percent rating from that date to March 24, 2016, and 40 percent from that date. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2014); 38 C.F.R. § 4.3, 4.7, 4.21, 4.71a, Diagnostic Code (Code) 5025 (2017). 2. The Veteran's low back disability warrants "staged" ratings of 10 percent prior to April 4, 2012 and 20 percent (but no higher) from that date. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2014); 38 C.F.R. § 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Code 5243 (2017). 3. A 40 percent rating (but no higher) for radiculopathy of the right lower extremity as a neurologic abnormality associated with the Veteran's low back disability is warranted from June 6, 2008 to June 25, 2008. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2014); 38 C.F.R. § 4.3, 4.7, 4.21, 4.71a, 4.124a, Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Inasmuch as this appeal is from the initial ratings assigned with the grants of service connection, statutory notice had served its purpose, and its application was no longer necessary. Regarding VA's duty to assist, the Board's December 2016 remand directed the AOJ to, in part, arrange for a VA spine examination that included testing required by 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing). The Board acknowledges the January 2017 VA examiner did not test for pain on passive motion. However, inasmuch at the Board will be evaluating the Veteran's low back disability based on the results of active-motion testing, which generally would reflect self-limiting restrictions (and a greater degree of impairment than would be noted on passive-motion testing), the Board finds the Veteran is not prejudiced by this omission. The Board finds that a remand for an additional examination would serve no useful purpose, but would instead impose unnecessary additional burdens on VA with no potential benefit flowing to the Veteran (and would delay the grant herein). See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ( "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). Factual Background A November 2006 private treatment record notes the Veteran had significant back discomfort. A January 2007 private treatment record notes there was tenderness throughout the lumbar spine. The low back pain radiated to the lower extremities. There was no trouble with his bowel and bladder related to his back disability. An MRI of the lumbar spine revealed significant stenosis due to degenerative spondylolisthesis with moderate facet hypertrophy. A separate January 2007 private treatment record notes the Veteran reported constant generalized fatigue, depression, achiness, and stiffness all over. He denied headaches and Raynaud's-like symptoms. Examination of the lumbar spine was limited due to pain. On February 2007 examination, his joints and muscles were tender all over. He continued to have pain and discomfort all over his body in May 2007. A separate May 2007 private treatment record notes he reported he was able to lift 50 to 80-pound feed bags for up to three hours at a time. He was able to pull a 300-pounder heifer from a lying to a standing position. On physical examination, his gait was normal. In a July 2007 statement, the Veteran reported that he performed the physical work described in the May 2007 treatment record over an extended period of time and could not handle two to three hours of steady lifting. An August 2007 VA treatment record notes the Veteran complained of constant pain from fibromyalgia and low back pain. A March 2008 treatment record notes there was limitation of motion of the spine, but measurements were not provided. A May 2008 private treatment record notes the Veteran received a lumbar spine epidural for pain. A June 6, 2008 VA treatment record notes the Veteran complained of a recent onset of leg weakness and difficulty walking. In a June 2008 statement, the Veteran reported his back and leg pain made it difficult to sleep because it was too painful to lie down. A June 10, 2008 private treatment record notes he described his right leg pain as intense. Three days later he reported he was unable to walk any distance at all. Standing and walking aggravated the pain. He had to lean forward due to the pain. His physician described his symptoms as severe. An MRI showed disk herniation with stenosis. He underwent a lumbar spine discectomy on June 25, 2008. There were no noted complications. A July 2008 treatment record notes his severe radicular pain had improved. He had normal bowel and bladder activity. His gait was normal. An August 2008 VA treatment record notes the Veteran reported his back pain had improved some. A November 2008 VA treatment record notes he complained of back pain that interfered with daily activities. On a January 2009 VA cervical spine examination, the Veteran's gait and posture were noted to be normal. A January 2009 VA psychiatric treatment record notes the Veteran's fibromyalgia caused generalized chronic pain that affected his mood and ability to sleep. A January 2009 private neurological treatment record notes the Veteran complained of fatigue, weakness, night sweats, sleep difficulties, abdominal pain, and headaches. There were multiple points of fibromyalgic tenderness. The physician noted multiple medications failed to relieve the pain. An April 2009 private treatment record notes the Veteran reported he had back pain when overly active. He did not have the same radicular pain that he had previously. An October 2009 VA treatment record notes the Veteran complained of aches and pains all over his body. In November 2009, he complained of facial pain that was believed to be related to his fibromyalgia. A May 2010 VA treatment record notes he continued to be disabled due to his fibromyalgia pain. At a March 2010 Board hearing pertaining to separate issues, the Veteran reported his back disability caused pain and limitation of motion. He also reported medication did not help with his fibromyalgia. On August 2010 VA fibromyalgia examination, the examiner noted the symptoms included constant, or nearly so, widespread musculoskeletal pain, trigger points, unexplained fatigue, sleep difficulties, headaches, diarrhea, constipation, abdominal cramps, bloating, depression, anxiety, Raynaud's-like symptoms, frequency, urgency, difficulty concentrating, stiffness, and weakness. The examiner noted the response to treatment was fair, but that there were not alleviating factors. The symptoms caused decreased mobility, problems with lifting and carrying, a lack of stamina, weakness, fatigue, and pain. On August 2010 VA spine examination, mild degenerative lumbar disk disease was diagnosed. The examiner noted the symptoms included unsteadiness, fatigue, decreased motion, stiffness, weakness, spasms, and pain. The examiner noted there was no history of urinary incontinence, urgency, retention or frequency; nocturia; fecal incontinence; obstipation; or erectile dysfunction. On examination, the Veteran's gait and posture were normal. There were not abnormal spine curvatures. There were tenderness and pain with motion of the thoracolumbar sacrospinalis. On thoracolumbar spine range-of-motion testing, flexion was to 70 degrees, extension was to 15 degrees; left lateral flexion and rotation were to 20 degrees; right lateral flexion and rotation were to 20 degrees with objective evidence of pain. There was objective evidence of pain following repetitive motion, but not additional limitations. A straight-leg raising test was positive. The examiner noted sensory exams were normal, but that there was a sensation of numbness in the lower extremities. Reflex and strength testing of the lower extremities was normal. Private treatment records show the Veteran received epidural injections for back pain in January and March 2011. He continued to complain of back pain in April 2011. In May 2011, he reported general weakness, pain, and fatigue. His gait was normal. A June 2011 treatment record notes his gait was normal. Lower extremity strength was intact. A separate June 2011 private treatment record notes he had a diffuse body pain syndrome that was likely related to the fibromyalgia. An October 2011 VA treatment record notes the Veteran reported the 2008 surgery relieved some of his back pain, but that it had returned. February 2011, December 2011, September 2011, and March 2012 VA treatment records note pain related to fibromyalgia was not relieved by prescribed medication. On April 4, 2012 VA fibromyalgia examination, the examiner noted the symptoms included trigger points and widespread musculoskeletal pain. The symptoms were episodic, but present more than one-third of the time. Overexertion exacerbated the symptoms. Resting and putting his feet up were alleviating factors. The examiner noted the fibromyalgia decreased mobility, caused pain, and affected his ability to perform daily activities, including a severe effect on exercise and prevented sports and recreation activities. On April 2012 VA spine examination, mild diffuse degenerative disc disease was diagnosed. The Veteran did not report flare-ups impacted function. On initial range-of-motion testing, flexion was to 70 degrees with objective evidence of pain beginning at that point; extension was 20 to degrees with pain beginning at that point; and right and left lateral flexion and lateral rotation were to 20 degrees with pain beginning at that point. However, after repetitive testing, flexion was to 60 degrees; extension was to 15 degrees; and right and left lateral flexion and lateral rotation were to 15 degrees. Less movement than normal and pain on movement were the contributing factors to the functional loss on repetitive testing. Muscle strength, reflex, and sensory testing of the lower extremities was normal. A straight-leg raising test was normal. The examiner checked the appropriate box to indicate he did not have radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic abnormalities related to the low back disability. The examiner noted the Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. He regularly used a cane to ambulate. VA treatment record show the Veteran continued to complain of back pain and fibromyalgia-related symptoms. A July 2012 VA treatment record notes he complained of fibromyalgia-related pain that limited physical activity. A September 2013 VA treatment record notes prescribed narcotics did not control the pain. An April 2015 VA treatment record notes the pain remained significant despite the continued use of narcotics. September 2014, April 2015, December 2015, and January 2016 treatment records note he had a reduced range of musculoskeletal motion, but measurements were not provided. The records do not show physician prescribed bedrest. At the March 24, 2016 Board hearing, the Veteran testified his fibromyalgia caused constant pain all over his body, sleep difficulties, muscle stiffness, and diarrhea. He reported prescribed pain medication did not reduce the severity of the pain. He reported the fibromyalgia and back pain made it difficult to walk and stand for long periods of time. On September 2016 VA fibromyalgia examination, the examiner indicated the symptoms included constant widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, paresthesias, headaches, depression, irritable bowel symptoms, and widespread tender points. The Veteran reported the use of medication did not successfully treat the fibromyalgia, but the examiner indicated the fibromyalgia was not refractory to therapy. The examiner checked the appropriate box to indicate there were not any other signs or symptoms related to the fibromyalgia. The examiner opined the fibromyalgia impacted his mobility and ability to perform the activities of daily living. On September 2016 VA spine examination, degenerative arthritis and IVDS were diagnosed. The Veteran reported pain and spasms. He did not report flare-ups, but reported the back disability impacted his mobility, including his ability to bend, lift, sit, and walk. On initial range-of-motion testing, flexion was to 60 degrees; extension was to 15 degrees; and right and left latera flexion and rotation were to 20 degrees. There was objective evidence of pain during each test. The limitation of motion caused functional loss that impacted his mobility, including his ability to bend, lift, sit, and walk. There was no additional loss of function after three repetitions. The examination was not performed immediately after repetitive use over time, and the examiner noted the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. The examiner was unable to opine whether pain, weakness, fatigability or incoordination significantly limited his functional ability with repeated use over a period of time. There was evidence of pain with weight bearing. He did have having guarding or muscle spasm that resulted in an abnormal gait or spinal contour. The spine was not ankylosed, and there were or neurologic abnormalities other than the separately rated lower extremity radiculopathy. The examiner noted the Veteran has IVDS and had episodes having a total duration of at least six weeks that required bed rest prescribed by a physician in the prior 12 months. The examiner noted that there was not documentation of such treatment, but that the Veteran reported low back pain over the past year. On January 2017 VA fibromyalgia examination, the examiner indicated the symptoms included constant widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbances, paresthesias, headaches, depression, irritable bowel symptoms, Raynaud's-like symptoms, and widespread tender points. The examiner indicated the fibromyalgia was refractory to therapy. The examiner checked the appropriate box to indicate there were not any other signs or symptoms related to the fibromyalgia. The examiner opined the fibromyalgia impacted his mobility and ability to perform the activities of daily living. On January 2017 spine examination, degenerative arthritis and IVDS were diagnosed. The Veteran reported pain, spasms, and radicular symptoms of the lower extremities. He reported having flare-ups of severe back pain 7 to 8 times a month. He reported his back pain impacted his ability to walk, bend, lift, and sit. On initial range-of-motion testing, flexion was to 50 degrees; extension was to 10 degrees; and right and left latera flexion and rotation were to 20 degrees. There was objective evidence of pain during each test. The limitation of motion caused functional loss that impacted his ability to walk, sit, and stand. There was not additional loss of function after three repetitions. The examination was not immediately after repetitive use over time, and the examiner noted the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. The examiner was unable to opine whether pain, weakness, fatigability or incoordination significantly limited his functional ability with repeated use over a period of time without resorting to mere speculation because the examination did not occur after repetitive use over time. The examination was also neither medically consistent nor inconsistent with his statements describing functional loss during flare-ups. The examiner was unable to opine whether pain, weakness, fatigability or incoordination significantly limited his functional ability with flare-ups without resorting to mere speculation because the examination did not occur during a flare-up. There was evidence of pain with weight bearing. He did have having guarding or muscle spasm that resulted in an abnormal gait or spinal contour. The examiner noted additional factors that contributed to disability included "less movement than normal due to ankylosis, adhesions, etc." However, the examiner checked the appropriate box to indicate the spine was not ankylosed. There were no neurologic abnormalities other than the separately service-connected lower extremity. The examiner indicated the Veteran has IVDS and had incapacitating episodes having a total duration of at least six weeks that required bedrest prescribed by a physician in the prior 12 months. The examiner noted his treating VA physician prescribed electrical stimulation, pain gel, and over-the-counter medication. The examiner noted the functional impact of the low back disability included limitations in ability to walk, stand, bend, lift, and sit. A January 2017 VA treatment record shows the Veteran continued to complain of back pain. On examination, there was a reduced range of motion and direct tenderness to various joints. Lidocaine was prescribed; there was no indication bedrest was prescribed for back pain. He reported he uses a pain-relieving gel. Legal Criteria and Analysis Disability evaluations are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. As these appeals are from the initial rating assigned with the award of service connection, "staged" ratings are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Rating for Fibromyalgia The Veteran's fibromyalgia has been assigned "staged" ratings of 20 percent prior to March 24, 2016 and 40 percent from that date under Code 5025. Under Code 5025, 20 percent disability rating is warranted for fibromyalgia with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. A 40 percent disability rating is warranted for such symptoms that are constant, or nearly so, and refractory to therapy. Id. Upon review of the record, the Board finds that the severity of the Veteran's fibromyalgia has varied during the evaluation period (and that "staged" ratings are warranted). On longitudinal view of the record, and with resolution of reasonable doubt in the Veteran's favor as required (see 38 C.F.R. § 4.3), the Board finds it is reasonably shown that prior to April 4, 2012the Veteran's fibromyalgia was manifested by widespread musculoskeletal pain and tender points with associated symptoms that were constant, or nearly so, and refractory to therapy. The August 2010 VA examiner noted the Veteran's fibromyalgia caused widespread musculoskeletal pain and tender points. The examiner did not specifically indicate whether these symptoms were "refractory" to therapy and while he noted the response to treatment was "fair," he specifically indicated there were no alleviating factors. Granting the Veteran the benefit of the doubt, the Board finds the examiner's findings show the symptoms associated with the fibromyalgia were refractory to therapy at the time of the examination. In addition, private and VA treatment records do not suggest the symptoms were any less severe or less frequent prior to the August 2010 examination or from the examination to April 4, 2012. Notably, a January 2007 private treatment record notes he reported constant generalized fatigue, depression, achiness, and stiffness all over. An August 2007 treatment record notes he reported that the pain caused by his fibromyalgia was constant. A January 2009 VA psychiatric treatment record notes his fibromyalgia caused generalized chronic pain that affected his mood and ability to sleep. A January 2009 private neurological treatment record notes multiple medications failed to relieve his pain. A May 2010 VA treatment record notes he continued to be disabled due to his fibromyalgia pain. At a March 2010 Board hearing, he reported medication did not help with his fibromyalgia. In May 2011, he reported general weakness, pain, and fatigue. February 2011, December 2011, September 2011, and March 2012 VA treatment records note pain related to his fibromyalgia was not affected by prescribed medication. Based on the foregoing, the Board concludes that the evidence supports that the Veteran's fibromyalgia warrants a 40 percent rating for the period prior to April 4, 2012. However, the Board finds that the fibromyalgia was manifested by symptoms that were episodic but present more than one-third of the time (and not constant or nearly so) from April 4, 2012 to March 24, 2016. The April 2012 VA examiner noted the symptoms associated with fibromyalgia were episodic (and therefore not constant, or nearly so). While VA treatment records show he continued to complain of symptoms associated with the fibromyalgia and that medication did not control the pain, there is no indication that the symptoms increased in frequency to become constant, or nearly so, from the April 4, 2012 examination to March 24, 2016. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent from April 4, 2012 to March 24, 2016. The Board further finds that from March 24, 2016 the fibromyalgia was manifested by widespread musculoskeletal pain and tender points with associated symptoms that were constant, or nearly so, and refractory to therapy. At the March 2016 Board hearing, the Veteran testified his fibromyalgia causes constant pain over all his body, sleep difficulties, muscle stiffness, and diarrhea. He related that prescribed pain medication did not alleviate the pain. The January 2017 VA examiner indicated that symptoms of fibromyalgia included constant widespread musculoskeletal pain and trigger points and that the fibromyalgia was refractory to therapy. The Board acknowledges that the September 2016 VA examiner indicated the fibromyalgia was not refractory to therapy, but that examiner also noted that symptoms were constant (and thus not fully responsive to treatment). Based on the foregoing, the Board concludes that the evidence supports a 40 percent rating for the Veteran's fibromyalgia from March 24, 2016. As a 40 percent rating is the maximum schedular rating for fibromyalgia, the Board has considered the applicability of alternate diagnostic codes for a possible rating by analogy, but did not find any diagnostic Code with criteria pertinent to the Veteran's disability picture that provide for a rating in excess of 40 percent prior to April 4, 2012 or from March 24, 2016. Symptoms not encompassed by the schedular criteria, which notably include a wide variety of symptoms, are not shown by the record, or alleged, at any time during the appeal period. The Veteran's fibromyalgia is manifested by musculoskeletal pain, weakness, tender points, fatigue, sleep disturbances, stiffness, paresthesias, headaches, irritable bowel symptoms, depression, and Raynaud's-like symptoms that reduce mobility and affect ability to perform the activities of daily living, all of which are contemplated by the regular schedular criteria. September 2016 and January 2017 VA examiners both indicated there were no other signs or symptoms related to the fibromyalgia. Accordingly, referral of the matter to the Director of Compensation for consideration of an extraschedular rating is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Rating for Low Back Disability The Veteran's low back disability has been assigned "staged" ratings of 10 percent prior to March 24, 2016 and 20 percent from that date under Code 5243 for IVDS. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height . A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Rating Formula provides that associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately under an appropriate diagnostic code. Note (5) explains that unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. IVDS may be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, depending on which method results in the higher evaluation when all disabilities are combined. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that that incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months warrant a 10 percent rating. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks warrant a 20 percent rating. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks warrant a 40 percent rating. Incapacitating episodes having a total duration of at least six weeks warrant a 60 percent rating. 38 C.F.R. § 4.71a, DC 5243. Note (1) to Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Nonetheless, a rating in excess of the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Upon review of the record, the Board finds that the severity of the Veteran's low back disability has varied during the evaluation period (and that "staged" ratings are warranted). Prior to April 4, 2012, the Veteran's low back disability was manifested by painful, limited motion, but not by a limitation of flexion to 60 degrees or less, a combined range of motion of the thoracolumbar spine of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, or bed rest prescribed by a physician. VA and private treatment records show he complained of back pain and that there was a limitation of motion of the thoracolumbar spine, but on August 2010 VA spine examination, flexion was to 70 degrees, the combined range of motion of the thoracolumbar spine was 165 degrees. While there was objective evidence of pain, there was not additional limitation after repetitive testing. There were no abnormal curvatures of the spine, and his gait was normal. On May 2007, July 2008, January 2009, May 2011, June 2011 evaluations, his gait was normal. The Board acknowledges that he was noted to have an abnormal gait in June 2008, but such was noted to be related to radiculopathy of the right lower extremity, which will be addressed further below. The August 2010 VA examination report and treatment records from prior April 4, 2012 also do not show physician-prescribed bed rest for back disability for a period of time having a total duration of at least 2 weeks in a year. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a rating in excess of 10 percent for the low back disability prior to April 4, 2012. On longitudinal view of the record, and with resolution of reasonable doubt in the Veteran's favor as required (see 38 C.F.R. § 4.3), the Board finds it is reasonably shown that his low back disability was manifested by a limitation of flexion to 60 degrees (but not by a limitation of flexion to 30 degrees or less, ankylosis, or bed rest prescribed by a physician) from April 4, 2012. On April 2012 VA examination, flexion was limited to 60 degrees after repetitive testing. Flexion remained limited to 60 degrees on September 2016 examination, and was limited to 50 degrees on January 2017 examination. Based on the foregoing, the Board concludes that the evidence supports that e orthopedic manifestations of the Veteran's low back disability warrant a 20 percent rating from April 4, 2012. From April 4, 2012, the Veteran's low back disability has not been manifested by a limitation of flexion to 30 degrees or less, ankylosis, or bed rest prescribed by a physician for IVDS even when considering the Veteran's complaints of pain and limitation of function. On April 2012 VA examination, he did not report flare-ups, and the examiner indicated he did not have IVDS. September 2014, April 2015, December 2015, and January 2016 treatment records note he had a reduced range of spinal motion, but measurements were no provided. He reported he did not have flare-ups on September 2016 VA examination. The examiner was unable to opine whether pain, weakness, fatigability or incoordination significantly limited his functional ability with repeated use over a period of time, but on examination there was no additional loss of function after repetitive testing. The examiner noted the spine was not ankylosed. On January 2017 examination, the Veteran reported flare-ups of severe back pain 7 to 8 times a month, but there is no indication such flare-ups caused a limitation of flexion to 30 degrees or less or ankylosis. The examiner was unable to opine on the severity of functional loss caused by repetitive use over time and flare-ups, but found no additional loss of function after repetitive during the examination. The Board acknowledges the examiner seemed to indicate an additional factor that contributed to disability included ankylosis, but he also specifically indicated the spine was not ankylosed. In addition, the examination report itself, the September 2016 VA examination report, and VA treatment records show that the spine was not in a fixed position and was not ankylosed. Notably, a January 2017 VA treatment record notes a reduced range of motion, but not an absence of motion. Thus, even when considering the complaints of pain with functional loss and flare-ups, the preponderance of the evidence is against a finding pf limitation of motion of flexion to 30 degrees or less or ankylosis of the spine. See DeLuca, 8 Vet. App. 202. The Board also acknowledges that September 2016 and January 2017 examiners both diagnosed IVDS and indicated the Veteran had incapacitating episodes with a total duration of at least six weeks in the prior 12 months. However, they appear to have relied on the Veteran's own reports to reach that conclusion (and did not review the record to ascertain whether those reports were consistent with clinical data. Records of the Veteran's treatment for back disability from April 2012 to the present do not show a single occasion when a physician prescribed bed rest for the back disability, let alone bedrest for a total duration of at least 4 weeks in a year (which would warrant an increase in the rating to 40 percent). Based on the foregoing, the Board concludes that the preponderance of the evidence is against the award of a rating in excess of 20 percent from April 4, 2012. The Board has considered whether factors such as functional impairment and pain addressed under 38 C.F.R. §§ 4.10, 4.40, and 4.45 would warrant a higher rating for the Veteran's low back disability during the entire period under consideration. See DeLuca, 8 Vet. App. 202. The VA examination reports and treatment records establish that he has low back pain and flare-ups. However, such pain is not shown to have caused additional restriction warranting ratings in excess of those now assigned. Rating for Neurologic Abnormalities Associated with the Low Back Disability As noted in the Introduction, the matter of the current ratings assigned for radiculopathy of the lower extremities is not before the Board. However, on longitudinal view of the record, and with resolution of reasonable doubt in the Veteran's favor as required (see 38 C.F.R. § 4.3), the Board finds it is reasonably shown that from June 6, 2008 to June 25, 2008, the Veteran's low back disability is also shown to have been manifested by moderately severe radiculopathy of the right lower extremity. Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia). For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. Under Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. A 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. The Board observes that the words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. VA and private treatment records show radiculopathy of the right lower extremity was diagnosed after the Veteran complained of a recent onset of right leg pain and weakness that made it difficult to walk beginning on June 6, 2008. A private physician described his symptoms as severe, and he underwent a lumbar spine discectomy on June 25, 2008. There were no noted complications. A July 2008 treatment record notes his severe radicular pain had improved. Based on the foregoing, the Board concludes that the evidence supports that a 40 percent rating (for moderately severe radiculopathy of the right lower extremity) is warranted from June 6, 2008 to June 25, 2008. While the treating physician described the symptoms as severe, there was no indication the radiculopathy resulted in marked muscular atrophy characteristic of severe incomplete paralysis. Accordingly, the Board finds the preponderance of the evidence is against a finding that the radiculopathy warranted a 60 percent rating from June 6, 2008. The Board further finds that the preponderance of the evidence is against a finding of lower extremity radiculopathy associated with the low back disability prior to June 6, 2008 and from June 25, 2008 to March 24, 2016; associated neurological abnormalities other than radiculopathy are not shown at any time during the appeal period. The Board notes he complained of the back pain radiating to his legs in January 2007, but radiculopathy was not diagnosed, and his gait was normal on May 2007 evaluation. The August 2010 VA examiner noted that there was a sensation of numbness in the lower extremities, but that sensory, reflex and strength tests were normal. The examiner also noted there was no history of urinary incontinence, urgency, retention or frequency; nocturia; fecal incontinence; obstipation; or erectile dysfunction. In addition, the April 2012 VA examiner indicated the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and that there were no other neurologic abnormalities related to the low back disability. September 2016 and January 2017 VA examiners both indicated there were no neurologic abnormalities associated with the low back disability other than the separately rated lower extremity radiculopathy. Based on the foregoing, the Board finds the preponderance of the evidence is against a finding of any additional neurologic abnormalities associated with the low back disability during the period on appeal. As was noted in the Introduction, a June 2016 rating decision granted the Veteran a TDIU rating, effective January 17, 2012. He did not file a notice of disagreement with the effective date assigned, and that decision is final. 38 U.S.C.A. § 7105. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A "staged" increased (to 40 percent, but no higher) rating is granted for the Veteran's fibromyalgia from September 29, 2006 to April 4, 2012, subject to the regulations governing payment of monetary awards. An increased (to 20 percent, but no higher) rating is granted for the Veteran's low back disability, from April 4, 2012 and subject to the regulations governing payment of monetary awards. A 40 percent rating for right lower extremity radiculopathy is granted from June 6, 2008 to June 25, 2008, subject to the regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs