Citation Nr: 1752423 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 08-32 407 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to February 13, 2012, and a rating in excess of 20 percent from February 13, 2012, for Degenerative Joint Disease (DJD) of the lumbar spine (hereinafter a low back disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1985 to March 1998 and from April 1999 to March 2006, including service in Somalia. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in New York, New York (RO), which, in pertinent part, granted service connection for thoracic lumbar spine disability and assigned a 10 percent disability rating, effective April 26, 2006. The Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. This claim was previously remanded in January 2012 and June 2014 for additional action by the RO. During the pendency of the appeal, in a September 2012 rating decision, the RO granted a 20 percent rating for the Veteran's low back disability, effective February 13, 2012. In March 2016, the Board denied the Veteran's claim for entitlement to an initial evaluation in excess of 10 percent prior to February 13, 2012 and a rating in excess of 20 percent from February 13, 2012. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 Memorandum Decision, the Court set aside the Board's March 2016 decision and remanded the matter for further development. FINDINGS OF FACT 1. Prior to February 13, 2012, even considering factors such as leg or foot weakness, unsteadiness, fatigue, decreased motion, and pain on movement, the forward flexion in the Veteran's back was not shown to be functionally limited to 60 degrees or less, or functionally limited to a combined range of motion limited to 120 degrees or less. 2. At no time during the course of the appeal has the Veteran's forward flexion been functionally limited to 30 degrees or less. 3. The evidence of record does not show that the Veteran has ever had ankylosis in his lower back, or that he has been prescribed bed rest for at least two weeks during any 12-month period prior to February 2012, or for at least four weeks during any 12-month period during the course of his appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to February 13, 2012, for a low back disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2017). 2. The criteria for an initial rating in excess of 20 percent from February 13, 2012, for a low back disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.7, 4.71a, Diagnostic Codes 5237-5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify the Veteran of the information and evidence necessary to substantiate a claim. 38 U.S.C. § 5103(a) (2014); 38 C.F.R. § 3.159(b) (2017). In this case, required notice was provided and the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the VCAA. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). A VA examination or opinion must be adequate for adjudication purposes. See 38 C.F.R. § 4.2 (providing that if an examination report "does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes"); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Court has held that a VA examiner should note during initial ROM testing "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." Mitchell, 25 Vet. App. at 44. VA obtained all pertinent medical records and provided the Veteran with VA examinations for his back disability in July 2007, April 2008, March 2009, February 2012, July 2014, and June 2015. The Veteran contends that the June 2015 VA examination was inadequate because the examiner did not specify the degree to which pain limited the Veteran's range of motion (ROM). The Board notes that the June 2015 examiner stated that the Veteran exhibited pain on ROM testing, but the examiner did not specify at what point pain began during ROM. However, the July 2014 VA examination noted the specific degrees at which the Veteran experienced pain during ROM. The Board finds that the July 2014 VA examination was adequate and compliant with Mitchell, 25 Vet. App. at 44. Furthermore, the Board finds that the July 2014 VA examination and the June 2015 VA examination may be considered collectively in evaluation of the severity of the Veteran's back disability, as the ROM measurements taken at the examinations are markedly similar. Specifically, the Veteran exhibited forward flexion to 70 degrees and combined ROM of 170 degrees at the July 2014 examination, and forward flexion to 70 degrees and combined ROM of 165 degrees on initial ROM testing at the June 2015 examination. There is no indication that the Veteran has been prejudiced by any significant worsening in his back disability that has not been contemplated by the examinations provided. As there is no indication that any failure on the part of VA to provide additional assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran received an adequate examination prior to adjudication and thus, VA has satisfied its duty to assist. II. General Criteria - Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). III. Low Back Disability The Veteran contends that his service-connected low back disability warrants higher ratings than currently assigned. A 10 percent rating is effective for the period prior to February 13, 2012 and a 20 percent rating is effective from February 13, 2012. For the reasons that follow, the Board concludes that increased ratings are not warranted. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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. Id. A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Id. Normal range of motion of the thoracolumbar spine is forward flexion to 90 degrees, extension from zero to 30 degrees, left and right lateral flexion from zero to 30 degrees, and left and right lateral rotation from zero to 30 degrees. The combined range of motion refers to the sum of the forward flexion, extension, left and right lateral flexion, and left and right rotation. See 38 C.F.R. § 4.71a, General rating Formula for diseases and Injuries of the Spine, Note (2); see also 4.71, Plate V (2017). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, at Note (1). If intervertebral disc syndrome (IVDS) is present, a lumbosacral spine disability may also be rated under Diagnostic Code 5243. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher rating when all disabilities are combined. Id.; see also 38 C.F.R. § 4.25 (2017). The Formula for Rating IVDS provides a 10 percent disability rating with incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months; a 20 percent disability rating with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months; a 40 percent disability rating with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months; and a 60 percent disability rating with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Turning to the medical evidence of record, there is no indication that the Veteran was prescribed bed rest to treat incapacitating episodes of intervertebral disc syndrome for two weeks or more during any 12 month period, prior to February 2012. The Veteran was diagnosed with IVDS in July 2007. However, he had not experienced any incapacitating episodes requiring medically prescribed bed rest and the April 2008 VA examination report did not contain a diagnosis of IVDS. In September 2012, the RO issued a rating decision that increased the disability rating to 20 percent, effective February 13, 2012. The RO rationalized that during a February 2012 VA examination, the Veteran reported that he had been medically prescribed bed rest for incapacitating episodes of at least two weeks but less than four weeks within the 12 months preceding the examination. Since the February 2012 VA examination, however, the medical evidence does not show that the Veteran has been prescribed at least four weeks of bed rest during any 12 month period, so as to warrant a rating in excess of 20 percent under the Formula for Rating IVDS. As such, the Board will consider whether the Veteran is entitled to an initial rating in excess of 10 percent prior to February 13, 2012, and a rating in excess of 20 percent from February 13, 2012, under the General Rating Formula for Rating Diseases and Injuries of the Spine. Initial rating in excess of 10 percent prior to February 13, 2012 The Board finds that a rating in excess of 10 percent is not warranted prior to February 13, 2012. During a July 2007 VA examination, the Veteran reported severe, sharp low back pain upon waking in the morning, stating that the pain was constant and radiated towards the right lateral upper leg. He also reported a history of numbness, paresthesias, leg or foot weakness, unsteadiness, fatigue, decreased motion, stiffness, weakness, and spasms. The Veteran stated he was able to walk one to three miles. On examination, the Veteran's gait was within normal limits. Forward flexion was to 90 degrees, with pain; extension was to 20 degrees, with pain; left and right lateral flexion were found to be to 25 degrees, with pain; and left and right lateral rotation were found to be to 30 degrees, with pain. On repetitive testing, there was no additional limitation of motion. No ankylosis was noted. The examiner assigned a diagnosis of DJD of the lumbar spine. In his October 2007 Notice of Disagreement (NOD), the Veteran stated that his back had become more painful since the July 2007 examination and that it was very painful to sit in a car or on a plane for more than 45 minutes. He also reported difficulty with squatting to lift objects, putting on his shoes and socks, and sitting straight up, as he would sit in a tilted position due to the pain. In addition, he stated that his job required him to travel in a car for 45 minutes to five hours and conduct inspections of military facilities. In a Statement in Support of Claim dated October 2007, the Veteran reported back pain and a decrease in range of motion due to his knee injury. He further stated that he was limited in his ability to lift or carry objects or reach for items at floor level. The Veteran received a VA examination in April 2008 and reported constant low back pain, with stiffness and aching on a daily basis, and pain radiating into his buttocks. He also reported symptoms of decreased motion and spasms, but denied fatigue or weakness. The Veteran reported being able to walk 1/4 mile and could stand for only about 30 minutes at a time. On examination, the Veteran's gait was within normal limits. Forward flexion was noted to be to 75 degrees, with pain at 45 degrees; extension was to 27 degrees, with pain; left lateral flexion to 30 degrees, with pain at 20 degrees; right lateral flexion to 40 degrees, with pain at 22 degrees; and left and right lateral rotation to 45 degrees, with pain. Pain was noted on repetitive testing, but no additional limitation of motion was observed. The examiner opined that the Veteran's back disability significantly affected his occupational activities, including pain and problems with lifting and carrying. However, the examiner found that the Veteran's back condition had mild effects on chores, shopping, exercise, and recreation, and no effect on activities such as grooming, dressing, or bathing. In his October 2008 VA Form 9 Appeal, the Veteran stated that his entire back was in pain and discomfort all the time and his lower back was often the most painful. He reported having lost a week of work within the past two months due to his back pain and use of painkillers. In addition, he claimed he had difficulty walking with a normal stride as his feet would become either sore or numb when walking short distances. The Veteran also reported that his job required him to be on his feet most of the day to inspect military facilities, which aggravated his back pain. Additionally, he also stated that he had tripped on numerous occasions while climbing steps. During a March 2009 VA examination, it was noted that the Veteran lifted no more than 45 pounds at home. It was further noted that the Veteran's back disability appeared to be his greatest limitation, and his condition had persisted unchanged since his last VA examination. The Veteran presented to the emergency room (ER) in May 2009 with complaints of severe spasms and back pain. He again presented to the ER in April 2011 due to severe back pain. The Veteran reported pain while inhaling and stated that the back pain caused loss of productivity with his job and time away from work. Based on the evidence above, the Board finds that an initial disability rating for a low back disability in excess of 10 percent is not warranted prior to February 13, 2012. For a rating in excess of 10 percent, the evidence must show forward flexion functionally limited to 60 degrees or less; or the combined range of motion functionally limited to 120 degrees or less. During the subject period, the Veteran's forward flexion was, at most, limited to 75 degrees at the April 2008 VA examination and his combined range of motion was limited at most to 220 degrees at the July 2007 VA examination. The Board has also considered the Veteran's lay statements regarding the functional impact of his service-connected lumbar spine disorder. The Veteran is competent to report his own observations with regard to the severity of his low back disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has reported complaints of pain, weakness, stiffness, numbness, paresthesias, unsteadiness, fatigue, decreased motion, and spasms. In particular, he noted pain when sitting in a car or plane for more than 30 to 45 minutes, difficulty squatting to lift objects, and difficulty walking short distances with a normal stride due to soreness and numbness. These statements are credible and consistent with the rating assigned. The occurrence of lumbar pain while performing such activities is not an additional symptom, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. To the extent that the Veteran argues his symptomatology is more severe than shown on examination, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained healthcare professionals are of greater probative weight than the Veteran's more general lay assertions. The evidence of record indicates that the Veteran's claimed symptoms, to the extent that they limit his range of motion, were contemplated by the 10 percent rating for painful or limited motion and did not show that the Veteran's limited motion was so functionally limited to forward flexion limited to 60 degrees or combined range of motion limited to 120 degrees. As noted above, repetitive motion testing did not cause additional limitation of motion. The Board acknowledges that the Veteran's pain increased with repetitive motion testing. However, the Court has held that pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In the instant case, the evidence of record does not support a finding that the Veteran's back pain affects the normal working movements of the body. For example, the 2008 VA examiner opined that the Veteran's back disability had only mild effects on chores, shopping, exercise, and recreation, and no effect on traveling, feeding, bathing, dressing, grooming, toileting. The Board acknowledges that the Veteran experienced weakness, fatigue, and unsteadiness, but finds that these symptoms do not rise to the level of affecting the normal working movements of the body so as to constitute functional loss warranting a rating in excess of 10 percent, because the Veteran exhibited the strength, coordination, and endurance to conduct daily activities such as exercise, recreation, traveling, and grooming. Furthermore, the Veteran stated he was able to walk 1/4 mile in 2008 and up to three miles in 2007, as well as perform inspections of military facilities as part of his employment. As such, a rating in excess of 10 percent is not warranted based on limitation of motion prior to February 2012. The evidence of record also demonstrates that the Veteran's low back disability was not productive of ankylosis, and did not result in an abnormal gait or abnormal spinal contour. For these reasons, the evidence is against a finding that the Veteran's low back disability warrants an initial rating in excess of 10 percent under the disability rating schedule prior to February 13, 2012. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; DeLuca, 8 Vet. App. at 206-7. Rating in excess of 20 percent from February 13, 2012 The Board finds that a rating in excess of 20 percent from February 13, 2012 is not warranted. In February 2012, the Veteran received a VA examination and was diagnosed with DJD of the lumbar spine and IVDS. The Veteran reported that back pain caused him to miss work twice a month for the past year and a half, and he would miss one day of work during flare-ups. On examination, forward flexion was noted to be to 75 degrees, with pain at 20 degrees; extension to 20 degrees, with pain at 10 degrees; left and right lateral flexion to 20 degrees, with pain for both sides at 10 degrees; and left and right lateral rotation to 20 degrees, with pain for both sides at 10 degrees. On repetitive testing, there was no additional limitation of motion. As to functional loss, the examiner noted the following: less movement than normal; weakened movement; excess fatigability; incoordination/impaired ability to execute skilled movements smoothly; pain on movement; instability of station; disturbance of locomotion; and interference with sitting standing and/or weight-bearing. The examiner also found that there was tenderness to deep palpation in the left lumbosacral muscles next to the spine. While the examiner indicated that guarding or muscle spasm of the lumbar spine was present, it did not result in abnormal gait or spinal contour. The Veteran also had radicular pain into both buttocks and experienced at least two weeks, but less than four weeks of incapacitating episodes over the past 12 months due to IVDS. The examiner opined that the Veteran's back disability did not affect his employability other than missing many days of work, as he missed approximately 24 days of work each year due to back pain. The examiner noted that the Veteran was unable to do any heavy lifting, but emphasized that the nature of the Veteran's job was not physical. At a July 2014 VA examination, the Veteran reported that he experienced flare-ups and stated that he missed four to seven days of work a year due to his back issues. It was noted that during a flare-up, the range of motion was reduced by 10 degrees in each direction. On examination, forward flexion was noted to be to 70 degrees, with pain at 20 degrees; extension to 20 degrees, with pain at 10 degrees; left and right lateral flexion to 20 degrees, with pain at 10 degrees for both; and left and right lateral rotation to 20 degrees, with pain at 10 degrees for both. Pain was noted on repetitive testing, but no additional limitation of motion was observed. As to functional loss, the examiner noted the following: less movement than normal; weakened movement; excess fatigability; incoordination/impaired ability to execute skilled movements smoothly; pain on movement; instability of station; disturbance of locomotion; and interference with sitting standing and/or weight-bearing. No guarding, muscle spasm, ankylosis of the spine, or localized tenderness or pain to palpation for joints and/or soft tissue were noted. The Veteran also had radicular pain into both buttocks and experienced at least one week, but less than two weeks of incapacitating episodes due to IVDS during the 12 months preceding the examination. The examiner noted that the Veteran's back condition affected his ability to work in that he was unable to do any heavy lifting. The Veteran received a VA examination in June 2015 and reported flare-ups that reduced his range of motion and caused functional loss, such as back pain with prolonged standing, lifting, and walking. The Veteran reported missing approximately two days of work in the past year due to his back condition. On examination, forward flexion was noted to be to 70 degrees; extension to 15 degrees; left and right lateral flexion to 20 degrees; and left and right lateral rotation to 20 degrees. The examiner did not address the degrees at which the Veteran experienced pain. Pain was noted on repetitive testing, but no additional limitation of motion was observed. The Veteran was found to have an additional five degree loss of range of motion in each direction during flare-ups, and it was noted that the flare-ups caused functional loss in the form of pain, fatigue, weakness, lack of endurance, and incoordination. No guarding, muscle spasm, ankylosis of the spine, or localized tenderness or pain to palpation for joints and/or soft tissue were noted. Imaging studies of the thoracolumbar spine documented arthritis. The Veteran reported radicular pain and the examiner noted IVDS of the thoracolumbar spine. However, the Veteran did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician within the 12 months preceding the examination. As to functional loss, the examiner noted that the Veteran's back condition affected his ability to work in that he was unable to do work that requires heavy lifting of 30 pounds or more. The examiner ultimately opined that the Veteran's service-connected conditions did not prevent employment, as he had been working full-time in an antiterrorism position for the state and had missed only two days of work within the past year due to his back. The Board notes that extensive VA outpatient treatment records are also of record, indicating the Veteran receives treatment for a variety of medical conditions, including his low back disability. However, these treatment records do not demonstrate that the Veteran's low back disability is worse than described in the VA examination reports of record. Based on the evidence above, the Board finds that at no time from February 13, 2012 has the Veteran's forward flexion been shown to be limited to 30 degrees or less. The Board has considered whether the Veteran's forward flexion has been functionally limited to 30 degrees due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 202. The Board finds the Veteran competent to report his complaints of pain, weakness, numbness, paresthesias, fatigue, and lack of endurance. See Jandreau, 492 F.3d at 1376-77. The Veteran's flare-ups were found to reduce his range of motion by about 10 degrees at the July 2014 VA examination and by five degrees at the June 2015 VA examination. However, the evidence of record does not demonstrate that the Veteran's range of motion was so functionally limited that it restricted his forward flexion to 30 degrees or less. As set forth above, even if flexion was limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. See Mitchell, 25 Vet. App. at 36-38. Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In the instant matter, the evidence of record does not support a finding that the Veteran's back pain affects the normal working movements of the body. The July 2012 VA examiner noted that the Veteran was unable to do any heavy lifting and missed approximately 24 days of work per year due to his back disability. However, the examiner ultimately opined that Veteran's employability was otherwise not affected and emphasized that his job was not a physical job. The June 2015 VA examiner also indicated that the Veteran was unable to do any heavy lifting over 30 pounds, but noted that the Veteran had missed only two days of work in the past year and worked full-time in an antiterrorism job. The VA examinations do not support a finding that the Veteran's back pain affects the normal working movements of the body. It is evident that for the duration of his appeal, the Veteran's back pain has resulted in some functional loss. On examination, functional loss included less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The examiners also noted the Veteran's reduced range of motion during flare-ups and reported pain. Specifically, during the February 2012 and July 2014 VA examinations, the examiners estimated that during a flare-up, the range of motion was limited by an additional 10 degrees in each direction. However, even considering an additional 10 degree loss beyond the range of motion demonstrated, the Veteran's forward flexion would still greatly exceed 30 degrees in February 2012 and in July 2014. During the June 2015 VA examination, the Veteran reported an additional five degree loss of range of motion in each direction during flare-ups, but this, too, is insufficient to warrant a rating in excess of 20 percent, as the forward flexion would still significantly exceed 30 degrees. The Board acknowledges that the June 2015 VA examiner did not indicate the degree at which the Veteran experienced pain. Nevertheless, at each VA examination, the Veteran was able to maintain range of motion even after repetitive motion testing and in spite of pain. Moreover, the Veteran's forward flexion, when considering the estimated additional limitation of motion during flare-ups, was not shown to have been functionally limited to 30 degrees or less. Furthermore, there is no evidence of record demonstrating that the Veteran had favorable or unfavorable ankylosis in his lower back. As such, the Board finds that a rating in excess of 20 percent from February 13, 2012 for the Veteran's low back disability is not warranted. 38 C.F.R. § 4.71a, DCs 5235-5242. As noted above, the VA examiners considered the Veteran's reported pain when evaluating the Veteran's range of motion, and the Board has considered current disability ratings based on reported limitation of motion. There is no other evidence demonstrating that the Veteran has greater limitation of motion than recorded at the VA examinations, even considering additional limitations due to pain. The Board has also considered the functional loss noted during the VA examinations, including weakness, fatigability, and incoordination. In consideration of all pertinent disability factors, there is no appropriate basis for assigning a schedular rating in excess of 10 percent prior to February 13, 2012 or a rating in excess of 20 percent from February 13, 2012, for the functional impairment of the Veteran's lumbar spine. Id. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Radiculopathy Pursuant to Note One following the General Rating Formula for Diseases and Injuries of the Spine, associated objective neurologic abnormalities are to be rated separately under an appropriate Code. 38 C.F.R. § 4.71, DCs 5235-5243, Note One. The Veteran was awarded separate compensable ratings for bilateral radiculopathy associated with his low back disability in a November 2014 rating decision. Appellate review will be initiated by a notice of disagreement (NOD). 38 U.S.C. § 7105(a). An NOD must "be filed within one year from the date of mailing of notice of the result of initial review or determination," and it must be in writing. 38 U.S.C. § 7105(b)(1). The Veteran seeks an increased rating for his service-connected bilateral lower extremity radiculopathy. A March 2015 notification letter informed the Veteran of the November 2014 rating decision and provided in a separate section entitled (in bold print), "What You Should Do If You Disagree With Our Decision," as follows: If you do not agree with our decision, please download and complete VA Form 21-0958, "Notice of Disagreement." You can download the form at http://www.va.gov/vaforms or you can call us at 1-800-827- 1000. You have one year from the date of this letter to appeal the decision. The enclosed VA Form 4107, "Your Rights to Appeal Our Decision" explains your right to appeal. (emphasis in original). This paragraph clearly put the Veteran on notice that he needed to file a timely NOD in order to appeal the rating decision. The Veteran was informed of his appellate rights, but he did not file an NOD expressing his disagreement with the rating or the effective date assigned. Hence, the decision became final. 38 U.S.C. § 7105. The Veteran asserts that the March 2015 notification letter provided conflicting information as to how to appeal the November 2014 rating decision, and points to the language in the letter regarding how to withdraw an appeal as evidence of ambiguity. However, the Board finds that there is no indication that the RO sent the Veteran any misleading notices. See Noah v. McDonald, 28 Vet. App. 120, 132 (2016); see also Jernigan v. Shinseki, 25 Vet. App. 220, 230-231 (2012) (indicating that this presumption may not apply if a claimant detrimentally relied on a misleading notice). Additionally, the Veteran has not set forth any evidence that he detrimentally relied on the March 2015 letter when failing to file an NOD. Instead, the evidence of record demonstrates that the Veteran was aware that the instant claim for increased rating for lumbar spine disability was the only issue on appeal, as noted in his September 2015 Post-Remand Brief. Moreover, the June 2015 Supplemental Statement of the Case (SSOC) also listed the claim for increased rating for lumbar spine disability as the only issue presently on appeal. The March 2015 letter specifically informed the Veteran that he would need to submit VA Form 21-0958 in order to express disagreement with the rating decision. Moreover, the notification letter enclosed VA Form 4107, setting forth the Veteran's rights to appeal the decision. The Board finds that the Veteran failed to file an NOD and the November 2014 rating decision became final. As such, the neurological impairment ratings are not for consideration. V. Extraschedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 3.321(b)(1). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id. The Board finds that there is no medical evidence of an exceptional or unusual clinical picture due to the Veteran's low back disorder as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1). The Veteran's symptoms for his low back disability are pain, stiffness, weakness, and a decreased range of motion. Pain, stiffness, weakness, and decreased range of motion are precisely the type of symptoms which are encompassed by the rating criteria already assigned under Diagnostic Codes 5235-5243. The expected physical impact of such symptoms would include decreased mobility, including impairment of the Veteran's ability to engage in physical activity. The Veteran reported that he is limited in how long he can sit or stand, has difficulty walking with a normal stride, and experiences pain when lifting and carrying objects. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain on usage, including while doing an activity, is an expected symptom to be associated with a low back disorder, and it does not present an exceptional or unusual disability picture. There is no evidence of any further impairment outside of the norm for this disorder or which would not be contemplated by the rating criteria. Although the Veteran reported two incapacitating episodes during the period on appeal, one lasting at least one week and another lasting at least two weeks, the rating criteria still adequately accommodates this clinical picture. In this case, the medical evidence fails to show anything unique or unusual about the Veteran's lower back disability that would render the schedular criteria inadequate. The Veteran's main symptoms are pain and limitation of motion which are contemplated in the rating assigned, through consideration of Deluca factors and the schedular rating criteria. Additionally, while the Veteran has missed some work on account of his service-connected back disability, some interference with employment is contemplated by the compensable schedular ratings that have been assigned. That is, the Veteran was awarded compensable ratings because his back caused interference with work. As such, the Board finds that the schedular evaluations assigned for the Veteran's service-connected back disability are adequate in this case. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Veteran has not alleged that he is unemployable solely on account of his service-connected back disability. Moreover, in a June 2015 opinion, the VA examiner opined that the Veteran's back condition impacted his ability to do work requiring heavy lifting, but emphasized that the Veteran's service-connected conditions did not prevent employment, as he has been working full time and had only missed approximately two days of work in the preceding year. As such, the Board finds that Rice is inapplicable. ORDER An initial rating in excess of 10 percent, prior to February 13, 2012, for a service-connected lumbar spine disability is denied. A rating in excess of 20 percent, from February 13, 2012, for a service-connected lumbar spine disability is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs