Citation Nr: 1756882 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-07 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar prior to April 13, 2017. 2. Entitlement to an initial rating higher than 20 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar as of April 13, 2017. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from January 1975 to October 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a central office hearing before the undersigned Veterans Law Judge in June 2016. A transcript of the hearing is associated with the claims file. In January 2017, the Board denied the Veteran's claim for an earlier effective date and remanded the issue of an increased rating for further development. In a June 2017 rating decision, the Appeals Management Center increased the Veteran's rating for degenerative disc disease, lumbar spine, status post fusion L4-L5 with scar to 20 percent effective April 13, 2017. FINDINGS OF FACT 1. Prior to April 13, 2017, the Veteran's degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar was manifested by pain, limitation of extension to no less than 20 degrees, limitation of forward flexion to no less than 80 degrees, a combined range of motion of 180 degrees, and subjective complaints of neurological symptoms. 2. As of April 13, 2017, the Veteran's degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar had manifested by pain, limitation of extension to no less than 10 degrees, limitation of forward flexion to no less than 60 degrees, a combined range of motion of 135 degrees, and subjective complaints of neurological symptoms. CONCLUSIONS OF LAW 1. Prior to April 13, 2017, the criteria for an initial rating higher than 10 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar have not all been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5239 (2017). 2. As of April 13, 2017 the criteria for an initial rating higher than 20 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar have not all been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5239 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2014); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Initial Rating The Veteran was originally granted service connection for degenerative disc disease lumbar spine, status post fusion L4-L5 with scar in the May 2010 rating decision on appeal. At that time, this disability was rated 10 percent effective July 8, 2009. The Veteran has appealed that initial rating. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Disabilities of the spine are rated under the under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) found at 38 C.F.R. § 4.71a. Intervertebral disc syndrome can, alternately, be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes also found at § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of injury or disease. The General Formula provides that an evaluation of 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 not greater than 235 degrees; or, 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. 38 C.F.R. § 4.71a. A 20 percent rating is warranted for: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine is assigned a 50 percent rating. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). The General Formula directs raters that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the cervical spine is 340 degrees, and the normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 60 percent evaluation is assigned where there are 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 Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 40 percent rating is assigned where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. Id. Note (1) states that for purposes of evaluations of intervertebral disc syndrome, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id. at Note (2); see also 38 C.F.R. § 4.71, Plate V. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a General Formula at Note (2). The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003, on the basis of limitation of motion as per the diagnostic codes for the specific joint. If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating can be assigned for x-ray evidence of 2 or more major joints or 2 or more minor joint groups and a 20 percent rating can be assigned if such involvement includes occasional incapacitating episodes. Id. Note (1) under Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with rating based on limitation of motion. A September 2009 VA treatment record notes chronic back stiffness and aching pain. The Veteran denied radiation of pain or paresthesias down the extremities, weakness, and bladder and bowel incontinence. His posture was satisfactory. He complained of discomfort at end ranges motion in all directions. No active radiculopathy was found. A December 2009 VA treatment record shows the Veteran's report of worsening lumbar pain with radicular pain down backs of thighs bilaterally. He continued to deny weakness or change in bladder and bowel control. A January 2010 VA treatment record notes the Veteran's complaints of chronic persistent low back pain for the last two years that extended down both lower extremities anteriorly. He denied any muscle weakness or bladder and bowel incontinence. His posture was satisfactory. He complained of discomfort at end ranges in all directions. Despite his complaints of intermittent bilateral leg pain, he was neurologically intact. A February 2010 VA EMG was normal despite the Veteran's complaints of back pain radiating down to his right toe for five days and right leg pain. In February 2010 the Veteran underwent a VA examination in conjunction with the underlying service connection claim. At that time, the Veteran reported limitation of walking to 100 feet, which he stated took 15 minutes to accomplish. He reported symptoms of stiffness, fatigue, spasms, decreased motion, and numbness. He did not experience paresthesia. He had weakness of the spine, leg, and foot. He reported an associated bowel symptom of constipation. He reported erectile dysfunction in that he could not achieve and maintain an erection. He also reported an associated bladder symptom in that he urinated ten times per day at one-hour intervals and three times at night again at two-hour intervals. He did not experience incontinence or urinary retention. He reported urinary urgency. He reported moderate, constant, daily pain in the L4-L5. The pain traveled to the legs. This pain was spontaneous and could be exacerbated by physical activity, rain, and snow. At the time of pain, most days he was able to function with medication. During flare-ups he experienced pain, weakness, and inability to bend. His treatment was Percocet, which caused drowsiness. He had been hospitalized for a laminectomy in January 1991. He described residuals of pain and aches. In the prior twelve months this disability had not resulted in any incapacitation. Additionally, he reported inability to perform simple house chores that required lifting or bending, have problems sitting and lying for long periods, and napping a lot during the day time. The Veteran's back scar was linear, superficial, and measured 14 cm x .2 cm. It was not painful on examination. There was no skin breakdown, underlying tissue damage, edema, inflammation, or keloid formation. It did not limit the Veteran's motion. There was no limitation of function due to this scar. Physical examination found his posture and gait within normal limits. He did not require any assistive device for ambulation. There was no evidence of radiating pain on movement. Muscle spasm was absent. There was diffuse lumbosacral tenderness. Spinal contour was preserved thought there was tenderness. There was no guarding of movement. He had full range of motion without objective evidence of pain. Repetitive testing was possible with pain, but without additional loss of motion. He was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. He had normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. There was symmetry of spinal motion with normal curves of the spine. Neurological examination revealed no sensory deficits from L1-L5 or S1 when pin prick and feather were used. There was no lumbosacral motor weakness. His reflexes were normal with no signs of pathologic reflexes. There were no signs of lumbar intervertebral disc syndrome (IVDS) with chronic and permanent nerve root involvement. There were no non organic physical signs. X-rays showed degenerative arthritis and status post L4-L5 fusion. A June 2010 VA treatment record shows the Veteran's complaints of low back pain with recurrent radicular pain to back of thighs without weakness or change in bladder and bowel control. Examination was normal. In a June 2010 letter, Dr. F.S. of the Spine Care Center noted the Veteran's subjective symptoms of difficulty sitting or standing for prolonged periods. His symptoms and pain medication caused difficulty performing activities of daily living including causing lack of concentration, loss of focus, and difficulty with day to day activities. This physician found that the Veteran was unable perform physical or sedentary work as a result of this subjective pain and felt that it would be unsafe for the Veteran to do so. In this and his June 2009 letter, Dr. F.S. noted forward flexion limited to 20 degrees, extension to 10 degrees, and bilateral lateral flexion to 5 degrees. This is consistent with the August 2005 range of motion findings of the Jackson Clinics physical therapist and there is no indication in the record that these measurements were retaken. The Board finds Dr. F.S.'s reliance on range of motion testing from several years prior to the effective date of the Veteran's grant of service connection to be disingenuous in light of the much improved ranges of motion noted during this period by both his office and VA. As such, the range of motion measurements cited in his June 2009 and June 2010 letters are of no probative value. A July 2010 VA treatment record notes the Veteran's complaints of chronic low back pain. Pain extended down both lower extremities to posterior knee area. Sitting, standing, and walking aggravated the pain. The Veteran did not walk long distances because of pain in the back and foot. He denied any muscle weakness bladder and bowel incontinence. His back pain had not changed significantly from one year earlier. A MRI showed multilevel degenerative changes resulting in mild central and foraminal stenosis at L3-L4 and post-surgical changes at L4-L5 without recurrent stenosis or disc herniation. His posture was satisfactory. He complained of discomfort at end ranges of motion in all directions. Despite his complaints of intermittent bilateral leg pain, he was neurologically intact. Private treatment records from the Spine Care Center from July 2010 to January 2011 note full range of motion and no evidence of scoliosis. A July 2010 private treatment record shows complaints of an aching, dull, tingling type sensation. The Veteran's pain medication caused some daytime sedation. He also reported periodic mild constipation of unknown etiology that had been present at the time of his cancer treatment in the recent past and remained the same. Physical examination found preserved strength in all extremity muscle groups against resistance and decreased sensation in bilateral lateral extremities. An October 2010 private treatment record notes the Veteran's report of aching low back pain radiating to his bilateral lower extremities. He rated this pain as 6 out of 10 on average and 8 out of 10 with activity. He was at 7 out of 10 at the time of this appointment. He specifically denied weakness, numbness, bladder dysfunction, bowel incontinence, paresthesia, dysesthesia, foot drop, and frequent falls. Medication improved the pain. The pain was consistently aggravated by standing, bending, lying down, stress, lifting, and twisting. He was able to meet his activities of daily living. This pain continued to be located primarily in the cervical spine with some pain in the lumbar spine and bilateral knees. He reported side effects of his medications including sedation, dry mouth, and constipation. This medication generally controlled his pain with the exception of that flare-up two weeks earlier. Physical examination found preserved strength in all extremity muscle groups against resistance and decreased sensation in bilateral lateral extremities. Private treatment records from November 2010 note on going back pain for several years that radiated down the legs and occasionally was associated with paresthesias of the feet. The Veteran described stiffness in the low back lasting for over an hour in the morning. Straight leg raise was positive bilaterally. This record does not reflect range of motion testing of the lumbar spine. A January 2011 private treatment record shows the Veteran's report of aching, shooting, and dull pain in his lower back that he rated as 6 out of 10. He stated that he found his medication ineffective. Physical examination found preserved strength in all extremity muscle groups against resistance and decreased sensation in bilateral lateral extremities. Private treatment records from the Spine Care Center from April 2011 to August 2014 note preserved strength in all extremity muscle groups against resistance, decreased sensation in bilateral lateral extremities, antalgic gait, and positive straight leg testing. There was no evidence of scoliosis. He had restricted, but not measured, range of motion and a well-healed surgical scar. A July 2011 private treatment record shows the Veteran's report of 8/10 pain. This was an aching, shooting type sensation with a burning in the right lateral thigh. He reported an increase in pain that day due to weather changes. He reported increased daily activities with use of medication. He had some constipation that he attributed to a history of cancer in his intestinal tract. An April 2011 private treatment record notes that the Veteran was then having more pain in his lumbar spine than in his cervical spine. The back pain was radiating down the bilateral extremities about the L5 dermatomal line to the knee and the left side following about the S1-S2 line wrapping under the groin to the inner left thigh and running down the ankle area. He described the pain as aching, shooting, dull, and electrical and rated it 7 out of 10. Pain was increased with sitting, bending, and walking. On physical examination, his lumbar spine appeared normal. There was no discoloration, drainage, or inflammation. He was tender to palpation of the lumbar spine. He had pain with bending to touch his toes, but not with lateral rotation. Straight leg raises were positive bilaterally. He had decreased deep tendon reflexes of both patellar and Achilles bilaterally. He reported decreased sensation of the lateral aspects of both lower extremities. He denied bladder or bowel dysfunction. He reported side effects to his medication consisting of sedation, dry mouth, and constipation. In November 2011 the Veteran underwent another VA examination in conjunction with this claim. At that time, he reported limitation of walking to 50 feet, which he stated took 15 minutes to accomplish. He reported symptoms of stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness. He reported an associated bowel symptom of constipation. He reported erectile dysfunction in that he could not achieve and maintain an erection. He also reported an associated bladder symptom in that he urinated eight times per day at two-hour intervals and four times at night again at two-hour intervals. He did not experience incontinence or urinary retention. He reported urinary urgency. He reported severe, constant, daily pain in the L4-L5 and into the buttocks, thighs, and calves. The pain traveled to the buttocks, front, and sides of legs. This pain was spontaneous and could be exacerbated by physical activity, stress, sitting, and standing. At the time of pain, he experienced functional impairment of inability to function in a normal manner due to medication and limitation of motion of the joint, which was described as inability to bend and limited movement. In the prior twelve months this disability had not resulted in any incapacitation. Additionally, he reported inability to perform day to day activities due to lack of concentration. The Veteran reported experiencing flare-ups impacting the ability of the back to function, which he described as inability to lead a normal life due to the pain. Physical examination found his posture and gait within normal limits. He regularly used braces in relation to his lower back disability and occasionally used a cane in relation to back, ankles, and knees. He had full muscle strength and no muscle atrophy. His initial range of motion was forward flexion to 80 degrees with objective evidence of pain at 75 degrees, extension to 20 degrees with objective evidence of pain at 20 degrees, bilateral lateral flexion to 20 degrees with objective evidence of pain at 15 degrees, and bilateral lateral rotation to 20 degrees with objective evidence of pain at 20 degrees. The Veteran was able to perform repetitive use testing without additional loss of motion. He had localized tenderness or pain to palpation for joints and/or soft tissue from L1 to L4. He did not have guarding or muscle spasm. He did not have diminished function of the lower extremities. A neurological examination of the lower extremities found his motor function within normal limits. Sensation to pinprick/pain, touch, position, vibration and temperature were intact bilaterally. His reflexes were normal bilaterally. Peripheral nerve involvement was not evident during examination. All the lower extremity deep tendon reflexes were normal. The sensation to light touch (dermatomes) was all normal. Straight leg testing was positive. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He did not have any other neurologic abnormality or findings related to a back condition. He did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The Veteran was diagnosed with status post lumbar spine surgery now with degenerative joint disease. The Veteran's back and ankle pain and pain medication affected his ability to walk and focus on tasks. His associated scar was not painful or unstable and did not affect a total area of greater than 39 square cm (6 square inches). It measured 12 cm x .3 cm. The accompanying radiology report found evidence of a prior surgery L4-S1 and narrowing of disc height at L4-L5 and L5-S1. A December 2011 through August 2014 private treatment record document the Veteran's reports of low back pain radiating to his lower extremities. VA treatment records from April 2015 to December 2016 show the Veteran's complaints of chronic back pain. At his June 2016 hearing, the Veteran testified that his back had gotten much worse since the last VA examination. He stated that he had radiation down his legs sometime to the ankles, shooting pain, and numbness. He reported that he was unable to do yard work, run, walk for long periods (15 to 20 minutes or less than a very slow half mile), ride a stationary bicycle, or sit for more than a few minutes without adjusting. He had not been prescribed bed rest. In a July 2016 statement, the Veteran stated that he experienced frequent muscle spasms which had caused incapacitating episodes in the last twelve months, but had not sought a doctor's note for bed rest because he was not employed. After a review of the pertinent evidence, the Board determines that a rating higher than that already assigned is not warranted for the period prior to April 13, 2017. Based on the above, the Veteran's back disability has been manifested by pain, limitation of extension to no less than 20 degrees, limitation of forward flexion to no less than 80 degrees, a combined range of motion of 180 degrees, and subjective complaints of radiculopathy. When these symptoms are applied to the rating criteria, they are consistent with the current 10 percent rating. 38 C.F.R. § 4.71a, DC 5239. A higher rating requires forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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. Id. This level of impairment is not shown on the record. Despite his report of muscle spasm, there is no objective evidence of this symptom and no finding that his reported spasms were severe enough to result in an abnormal gait or abnormal spinal contour. Instead, he was consistently found not to have scoliosis. Thus, a rating higher than the current 10 percent is not warranted prior to April 13, 2017. The record reflects flare-ups of severe pain with increased activity like concert-going and snow shoveling and with cold weather. The Veteran also reported frequent flare-ups due to prolonged, sitting, standing, or walking, and due to stress. Despite this, repetitive use testing failed to result in additional loss of range of motion. The record does not contain any quantified measure of the Veteran's additional loss of range of motion during flare-ups. While the Veteran sought private treatment during a flare-up in January 2016, that record does not include range of motion testing. The Board sought to account to this in the January 2017 remand instruction. As noted below, however, the Veteran denied flare-ups at the time of his April 2017 VA examination and, thus, no opinion was provided as to the additional degrees of limitation of motion equivalency during a flare-up. Therefore, the Board finds that the preponderance of the evidence is against a schedular rating higher than 10 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar prior to April 13, 2017. Hence the appeal as to a higher rating for this disability as of April 13, 2017 must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. B. As of April 13, 2017 On April 13, 2017, the Veteran underwent another VA examination in conjunction with this claim. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore it is adequate for VA purposes. The Veteran was diagnosed with degenerative disc disease status post lumbar spine fusion with scar and severe lumbar spondylosis. The Veteran reported current symptoms of muscle spasms, low back pain with radiation down bilateral legs into ankle area, right worse than left. He did not report flare-ups of the back. He reported functional impairment of difficulty performing activities of daily living due to pain medication, significantly decreased range of motion of the lumbar spine. The Veteran could not sit or stand for long periods of time. His range of motion was measured as forward flexion from zero to 60 degrees, extension from zero to 10 degrees, right lateral flexion from zero to 15 degrees, left lateral flexion from zero to 20 degrees, and bilateral lateral rotation from zero to 15 degrees. Pain was noted on forward flexion, extension, and bilateral lateral flexion. This caused additional functional loss. There was evidence of pain with weight-bearing. There was objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue of the lumbar spine. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The Veteran was not being examiner immediately after repetitive use over time or during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. This examiner was unable to determine, without resorting to mere speculation, whether pain, fatigability, or incoordination significantly limited functional ability after repetitive use over time or during a flare-up. The examiner was unable to describe any such additional limitation of functional ability in terms of range of motion because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The Veteran had muscle spasm resulting in abnormal gait or abnormal spinal contour. He also had localized tenderness and guarding not resulting in abnormal gait or abnormal spinal contour. He had decreased muscle strength in the bilateral lower extremities, but no muscle atrophy. His reflexes were absent in the bilateral knees and ankles. Sensory exam results were normal. Straight leg testing was negative. The Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran did not have IVDS. He regularly used a cane as a normal mode of locomotion due to back and knee pain. The Veteran's back disability did not result in functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to his back disability. Imaging studies confirmed arthritis. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. This disability impacted the Veteran's ability to work in that it caused severe limitation of motion and the inability to lift or carry heavy objects. His pain medication impacted his activities of daily living. The April 2017 examination report includes the remark that joint testing per Correia v. McDonald requirements was performed as medically appropriate. After a review of the pertinent evidence, the Board determines that a rating higher than that already assigned is not warranted for the period beginning April 13, 2017. Based on the above, the Veteran's back disability has been manifested by pain, limitation of extension to no less than 10 degrees, limitation of forward flexion to no less than 60 degrees, a combined range of motion of 135 degrees, and subjective complaints of radiculopathy. When these symptoms are applied to the rating criteria, they are consistent with the current 20 percent rating. 38 C.F.R. § 4.71a, DC 5239. A higher rating requires forward flexion of the thoracolumbar spine not greater than 30 degrees or ankylosis of the thoracolumbar spine. Id. This level of impairment is not shown on the record. Likewise, the record does not show a diagnosis of IVDS and so rating under DC 5243 based on physician-prescribed bed rest is not warranted. See 38 C.F.R. § 4.71a. Thus, a rating higher than the current 20 percent is not warranted as of April 13, 2017. The Board has considered the examination report's explanation regarding flare-ups and repeated use; specifically, the statements that the examiner could not report a range of motion limitation during flare-ups or after repeated use without resorting to speculation. The explanation underlying this determination is compelling. The report further explained precisely what would be needed to make other than a speculative determination. In considering this explanation the Board has also considered the recent case of Sharp v. Shulkin, 29 Vet. App. 26 (2017). Given the Veteran's denial of flare-ups at the time of his April 2017 examination, the Board can find no inadequacy in the examination reports addressing flare ups, nor did find that any additional rating is warranted base on flare-ups. Therefore, the Board finds that the preponderance of the evidence is against a schedular rating higher than 20 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar as of April 13, 2017. Hence the appeal as to a higher rating for this disability as of April 13, 2017 must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. C. Separate Compensable Ratings - Neurologic Abnormalities and Scar The Board has considered whether the Veteran's back disability has any associated objective neurologic abnormalities that would entitle the Veteran to separate compensable ratings. 38 C.F.R. § 4.71a, DC 5243-5239, Note 1. In this case, despite the Veteran's subjective complaints of radiculopathy of the bilateral lower extremities, the objective medical evidence has not associated these symptoms with the Veteran's back disability. The Board has also considered whether a compensable rating is warranted for the Veteran's associate surgical scar. This scar is not painful or unstable, and did not cover a total area greater than six square inches. As such, there is no basis for a compensable rating for this scar. See 38 C.F.R. § 4.118, DC's 7801, 7802, 7804, 7805. Thus, the Board does not find evidence to support separate compensable ratings for associated objective neurologic abnormalities or surgical scar. D. Extraschedular The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of low back disability are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Here, in July 2010, the Veteran claimed individual unemployability based on hit back, foot, ankle, and knee disabilities and was awarded TDIU effective August 14, 2009 in a March 2012 rating decision. This is not a bar to further consideration of TDIU. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that there could be a situation where a veteran had a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability or disabilities in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an "additional" disability of 60 percent or more ("housebound" rate). See 38 U.S.C. § 1114 (s); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011) (discussing VA's "well-established" duty to maximize a claimant's benefits). In this case, however, neither the claimant nor the record has raised the question of unemployability due to service-connected back disability alone. Rather, in his VA Form 21-8940, the Veteran contended that his pes planus, bilateral knee disability, and Achilles tendonitis together with his back disability rendered him unemployable. Therefore no further discussion of a TDIU is necessary. (CONTINUED ON NEXT PAGE) ORDER An initial rating higher than 10 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar prior to April 13, 2017 is denied. An initial rating higher than 20 percent for degenerative disc disease, lumbar spine, status post fusion L4-L5, with scar as of April 13, 2017 is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs