Citation Nr: 1757754 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 13-26 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right ankle/foot disorder, to include as secondary to the service-connected lumbar scoliosis, right knee chondromalacia, or left knee strain, status post meniscus tear, or as due to a qualifying chronic disability to include undiagnosed illness. 2. Entitlement to an increased disability rating (or evaluation) in excess of 10 percent for lumbar scoliosis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran (Appellant); E.S. ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1989 to May 1997, from June 2003 to December 2003, from April 2005 to June 2006, and from September 2008 to November 2009. This appeal comes to the Board of Veterans' Appeals (Board) from January 2010 and July 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and Seattle, Washington, respectively. The current agency of original jurisdiction (AOJ) is the VA RO in Seattle, Washington. A claim for service connection for a right ankle disorder was received in October 2009. The January 2010 rating decision, in pertinent part, denied service connection for a right ankle disorder. A December 2012 report of general information notes that the Veteran wanted to file "a claim for lower back pain and piercing spasms, [that] may be secondary to [the] current[ly] service[-]connected scoliosis," which was construed as an increased rating claim for the service-connected lumbar scoliosis. A July 2015 rating decision granted a 10 percent disability rating for lumbar scoliosis effective December 27, 2012 (the date the increased rating claim was received by VA). As noted in May 2016, while the Veteran originally filed a claim for service connection for a "right ankle condition," the Board expanded the scope of the claim to include all right ankle and foot disorders (apart from the already service-connected bilateral pes cavus). Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by the veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). As discussed below, the Veteran had service in the Southwest Asian Theater of operations during the Persian Gulf War. With respect to the issue of service connection for a right ankle/foot disorder, the Board finds that the evidence of record at least reasonably raises the theory of presumptive service connection as due to a qualifying chronic disability to include undiagnosed illness under 38 U.S.C. § 1117 (2012) and 38 C.F.R. § 3.317 (2017), so has recharacterized this issue on the title page to reflect consideration of this service connection theory. In May 2016 the Board, in pertinent part, remanded the issues on appeal for additional development. As discussed in detail below, the Board is granting service connection for undiagnosed right ankle and foot joint pain, constituting a full grant of the benefit sought on appeal regarding this issue; therefore, any discussion with regard to compliance with the remand instructions with respect to this issue is rendered moot. With respect to the issue of an increased disability rating for lumbar scoliosis, pursuant to the May 2016 Board remand instructions, the Veteran was afforded VA examinations in December 2016 and January 2017 to assist in determining the current severity and impairment of the service-connected lumbar scoliosis. The VA examiners were directed to diagnosis all current lumbar spine disabilities and, to the extent possible, to distinguish the symptomatology associated with the service-connected lumbar scoliosis from that associated with all other identified non-service-connected lumbar spine disorders. The Board finds that the December 2016 and January 2017 VA examination reports are thorough and adequate and in compliance with the Board's remand instructions; therefore, the Board finds that there has been substantial compliance with the prior Board remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). A March 2017 VA examination report has been associated with the claims file. While the most recent supplemental statement of the case (dated in March 2017) does not include review of this evidence, the VA examination relates to the issue of service connection for sleep apnea, which is not in appellate status before the Board. As such, the Veteran is not prejudiced by the Board's decision without AOJ consideration of this evidence in the first instance. In January 2016, the Veteran and E.S. testified at a Board videoconference hearing at the local RO in Seattle, Washington, before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing is of record. A December 2012 report of general information notes that the Veteran wanted to file "a claim for lower back pain and piercing spasms, [that] may be secondary to [the] current[ly] service connected scoliosis." A March 2016 VA examination report notes diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome separate from the (service-connected) lumbar scoliosis. The March 2016 VA examiner opined that the intervertebral disc syndrome is less likely than not proximately due to lumbar spine scoliosis. A January 2017 VA examination report notes diagnoses of thoracic scoliosis and lumbar degenerative joint disease separate from the service-connected lumbar scoliosis. The AOJ has not yet adjudicated the issues of service connection for intervertebral disc syndrome, degenerative arthritis/degenerative joint disease of the spine, and thoracic scoliosis, as secondary to the service-connected lumbar scoliosis. In May 2016, the Board referred these issues to the AOJ for adjudication, which does not appear to have been completed; therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran had service in the Southwest Asian Theater of operations during the Persian Gulf War. 2. The Veteran has a current qualifying chronic disability characterized by symptoms of right ankle and foot joint pain that has manifested to a compensable degree during a six month period since service. 3. For the entire rating period from December 27, 2012, the lumbar scoliosis has been manifested by symptoms of forward flexion to 40 degrees, painful motion, and flare-ups causing limitations with lifting and bending. 4. For the entire rating period from December 27, 2012, the lumbar scoliosis has not been manifested by ankylosis, incapacitating episodes requiring physician ordered bed rest having a total duration of at least 4 weeks during a 12 month period, or forward flexion of the thoracolumbar spine to 30 degrees or less. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for presumptive service connection for undiagnosed right ankle and foot joint pain as due to a qualifying chronic disability have been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an increased disability rating of 20 percent, and no higher, for lumbar scoliosis have been met for the entire rating period from December 27, 2012. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5239 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2015). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board is granting service connection for undiagnosed right ankle and foot joint pain, constituting a full grant of the benefit sought on appeal; therefore, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist with respect to this issue. With respect to the issue of an increased disability rating for lumbar scoliosis, in this case, notice was provided to the Veteran in November 2013, prior to the initial adjudication of the claim in July 2015. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability ratings and effective dates. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, service personnel records VA treatment records, private treatment records, VA examination reports, a copy of the January 2016 Board hearing transcript, and lay statements. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With respect to the lumbar scoliosis, the Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in September 2014, March 2016, December 2016, and January 2017. The Board finds that the VA examination reports are thorough and adequate and provide a sound basis upon which to base a decision with regard to the increased rating issue decided herein. The VA examiners personally interviewed and examined the Veteran, including eliciting a history, conducted physical examinations, and specifically addressed the symptoms and impairment listed in the relevant criteria in the potentially applicable diagnostic codes. The VA examiners differentiated symptomatology and lumbar spine disorders that are not due to the service-connected lumbar scoliosis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (stating that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). Further, the January 2017 VA examination report includes joint testing for pain on both active and passive motion, and in weight-bearing and non-weight-bearing. As the orthopedic disability at issue is the thoracolumbar spine, there is no opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran and his sister, E.S., testified at a hearing before the Board in January 2016 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veterans Law Judge, in pertinent part, took testimony with respect to the issue of an increased rating for lumbar scoliosis. (The Veterans Law Judge also took testimony with respect to service connection for a right foot/ankle disorder granted herein.) In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board hearing, the Veterans Law Judge advised the Veteran as to the issues on appeal. With respect to the increased rating for lumbar scoliosis on appeal decided herein, the Veteran's Law Judge specifically asked and the Veteran testified regarding symptoms, limitations, and problems associated with the lumbar spine disability, including pain. As the Veteran presented evidence of symptoms and functional impairments due to the lumbar scoliosis and there is additionally medical evidence reflecting clinical measures and assessments of the severity of the lumbar scoliosis, there is both lay and medical evidence reflecting on the degree of disability, and there is no overlooked, missing, or outstanding evidence as to this issue. Moreover, neither the Veteran nor the representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and the Board can adjudicate the issues based on the current record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection for a Right Ankle/Foot Disorder Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2017). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In this case, the Board finds that the weight of the evidence is against a finding that the Veteran has current diagnosed right ankle/foot disability and the right ankle and foot joint pain is not a "chronic disease" under 38 C.F.R. § 3.309(a) (2017). As such, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) or manifesting within one year of service separation at 38 C.F.R. § 3.307 (2017) do not apply. Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Laypersons are competent to report objective signs of illness. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The service personnel records and DD Form 214 reflect that the Veteran served in Southwest Asia from May 2005 to May 2006, and from October 2008 to August 2009; therefore, the Veteran in this case is a "Persian Gulf veteran" as defined by 38 C.F.R. § 3.317. A "qualifying chronic disability" for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317(a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317(b). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran essentially contends that he fractured his right ankle/foot when he fell down a ladder during service in 1993 and has continued to have symptoms of right ankle pain and swelling since the in-service injury. See November 2009 VA examination report, January 2016 Board hearing transcript at 3-5. In a November 2010 written statement, the Veteran contended that, while the right ankle does not cause constant problems, it does occasionally bother him. Alternatively, in a November 2015 written statement, through the representative, the Veteran contended that the right ankle/foot disability was aggravated by the service-connected lumbar spine and right and left knee disabilities. As noted above, the Veteran had service in the Southwest Asian Theater of operations during the Persian Gulf War. As pertinent here, a "qualifying chronic disability" for VA purposes is a chronic disability resulting from an undiagnosed illness. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(A). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, joint pain. 38 C.F.R. § 3.317(b). Nexus evidence is not required. Gutierrez, 19 Vet. App. at 10. November 2009 and February 2014 VA examination reports note that x-rays of the right ankle and foot were within normal limits. The November 2009 VA examiner noted a "diagnosis" of a healed right talus fracture with subjective factors of occasional pain on the top of the foot when running and no objective factors. The February 2014 VA examiner noted that there was no pathology to render a diagnosis of any current right ankle disabilities, but noted right foot metatarsalgia. Metatarsalgia is "pain and tenderness in the metatarsal region" of the foot. Dorland's Illustrated Medical Dictionary 1162 (31st ed. 2007). While the February 2014 VA examiner "diagnosed" the Veteran with right foot metatarsalgia, the Board finds that this is a reflection of the reported right foot pain and is not a diagnosed or identifiable underlying disability. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Further, while the February 2014 VA examination report notes a "diagnosis" of a healed right talus fracture, the Board finds this is documentation of a previous injury that resolved, rather than notation of a current right ankle/foot disability. The service treatment records document a closed right navicular (bone of the foot) fracture, see May to August 1993 service treatment records, which resolved without residuals. See May 1994 and March 1997 physical examination reports (noting a history of a right ankle fracture in 1993 without sequelae that was not considered disabling (NCD)); see also March 2003 report of medical history (noting a full recovery following the 1993 right metatarsal fracture). The other evidence of record further supports a finding that the Veteran does not have a current diagnosed or identifiable underlying right ankle/foot disability. At the December 2016 VA examination, the Veteran reported right foot pain every two weeks that can last for several hours to an entire day. The Veteran reported piercing pain that causes him to adjust his step. The Veteran denied receiving treatment or taking any pain medication related to the claimed right foot disorder. The December 2016 VA examiner opined that the Veteran does not have a current right ankle or right foot disability. The VA examiner noted that, although there is a documented right tarsal navicular fracture during service in 1993, there are no permanent residuals or chronic disability associated with the healed fracture. The VA examiner further noted that the available records are silent for complaints of, diagnosis of, or treatment for a chronic right ankle disability. The VA examiner noted that physical examination at the time of the December 2016 VA examination resulted in normal objective findings. In Joyner v. McDonald, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Court in its holding that pain alone was not a disability even as an undiagnosed illness. 766 F.3d 1393, 1395 (Fed. Cir. 2014). The Federal Circuit specifically noted that the plain language of 38 U.S.C. § 1117 makes clear that pain, such as joint pain, may establish an undiagnosed illness that causes a qualifying chronic disability. Id. As detailed above, the Veteran, throughout the course of this appeal and to healthcare professionals, has consistently reported right ankle and foot pain. The Veteran is competent to report any symptoms that come to him through the senses including painful limitation of motion and stiffness. The evidence reflects symptoms of right ankle and foot joint pain consistent with compensable disability ratings of 10 percent. 38 C.F.R. § 4.71a (2017). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the Veteran's symptoms of right ankle and foot pain and resulting functional impairment do not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. 1. The Board finds that the criteria for a 10 percent disability rating by analogy to Diagnostic Code 5003, applying the principles of 38 C.F.R. § 4.59, for painful motion that is manifested to a noncompensable degree, is supported by the evidence in this case. In statements made throughout the course of this appeal and to healthcare professionals, the Veteran has consistently reported right ankle and foot pain that causes him to adjust his step while walking as well as pain, swelling, and inflammation after performing physical activities. See e.g., January 2016 Board hearing transcript, December 2016 VA examination report. At the February 2014 VA examination, the Veteran reported weekly pain in the right ankle as well as instability and pain in the right foot. At the October 2009 VA examination, the Veteran reported that he has to "take it easy" on days when the right ankle is painful and stop whatever he is doing to prevent the pain from increasing. The Veteran reported occasional pain on the top of the foot when running. Based on the above, and resolving reasonable doubt in the Veteran's favor, presumptive service connection for undiagnosed right ankle and foot joint pain, as due to a qualifying chronic disability, is warranted. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The grant of presumptive service connection as due to a qualifying chronic disability renders moot other theories of service connection. Increased Rating for Lumbar Scoliosis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as in this case, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The Board has considered, and found inappropriate, the assignment of "staged" ratings for any part of the increased rating period. The Veteran is in receipt of a 10 percent disability rating for the lumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5239. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243), unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25 (2017). 38 C.F.R. § 4.71a. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Under the General Rating Formula, a 10 percent disability rating is assigned for 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. A 20 percent disability rating is assigned for 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) 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. 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. Diagnostic Code 5243 provides the following Notes: Note (1): 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Throughout the course of this appeal, the Veteran has contended that the service-connected lumbar scoliosis has been manifested by more severe symptoms than contemplated by the 10 percent disability rating assigned. See generally March 2014 notice of disagreement, November 2015 written statement from the representative. In a January 2015 written statement, the Veteran contended that an increased disability rating was warranted because the low back pain had worsened to the point that it caused him to miss work. Initially, while the evidence of record reflects multiple lumbar spine disabilities, the only current service-connected lumbar spine disability is lumbar scoliosis. As noted above, the Board has referred the issues of service connection for intervertebral disc syndrome, degenerative arthritis/degenerative joint disease of the spine, and thoracic scoliosis to the AOJ for initial adjudication. Where a veteran is diagnosed with multiple disabilities, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider, 11 Vet. App. at 182 (per curiam), citing Mitchem, 9 Vet. App. at 140 (stating that the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so, although the Board may not ignore such distinctions where they appear in the medical record). In this case, the Board finds that the symptoms and impairment associated with the service-connected lumbar scoliosis can be differentiated from the symptoms and impairment associated with the non-service-connected intervertebral disc syndrome, degenerative arthritis/degenerative joint disease of the spine, and thoracic scoliosis. December 2014 private treatment records note that the Veteran's lumbar spine "went out" and an MRI report reflected a large free-fragment disc herniation on the right at L5-S1 with caudal migration of the disc material. See also April 2015 private treatment record. The Veteran underwent lumbar spine surgery in 2015. The March 2016 VA examination report notes that the Veteran has other lumbar spine disabilities beyond lumbar scoliosis, specifically intervertebral disc syndrome and degenerative arthritis of the spine. The March 2016 VA examiner opined that the intervertebral disc syndrome is less likely than not proximately due to the lumbar spine scoliosis based on medical records containing x-ray and MRI reports of the lumbar spine in 2015 reflecting degenerative joint disease/disc bulging/protrusion/extrusion that was not found on x-ray of the lumbar spine in 2009. The March 2016 VA examiner opined that the lumbar scoliosis does not contribute to the current diagnosed intervertebral disc syndrome, but rather that the intervertebral disc syndrome is a complication of the non-service-connected degenerative joint disease/disc bulging/protrusion/extrusion of the lumbar spine. The VA examiner opined that the non-service-connected degenerative joint disease is not a progression of the service-connected lumbar scoliosis, but rather from post-service wear and tear. The reasonable inference of the March 2016 VA examiner's opinion is that the symptoms and impairment noted at the time of the March 2016 VA examination are not attributable to the service-connected lumbar scoliosis, but rather are attributable to the non-service-connected degenerative joint disease, disc bulging, protrusion, and extrusion of the lumbar spine. This inference is further supported by the findings noted at the time of the December 2016 and January 2017 VA examinations. The December 2016 VA examination report notes diagnoses of lumbar scoliosis and right S1 radiculopathy status post right L5 to S1 microdiscectomy. The VA examiner indicated that the symptoms and functional impairment, including low back pain and left leg paresthesias (noted in a January 2016 VA treatment record), associated with the thoracolumbar spine were not related to the service-connected lumbar scoliosis, which was currently asymptomatic. The VA examiner further indicated that the right S1 radiculopathy had resolved. The January 2017 VA examination report notes diagnoses of lumbar degenerative joint disease and thoracic scoliosis. The VA examination report notes that the previously diagnosed lumbar scoliosis had resolved. The VA examiner opined that the thoracic scoliosis and lumbar degenerative joint disease (arthritis) are new and separate conditions apart from the resolved scoliosis. The reasonable inference of the VA examiner's finding that the lumbar scoliosis had resolved is that the symptoms and functional impairment recorded at the time of the January 2017 VA examination are attributable to the non-service-connected lumbar degenerative joint disease and non-service-connected thoracic scoliosis and not to the service-connected lumbar scoliosis. Based on the above, the Board finds that the evidence of record differentiates the symptomatology of the service-connected lumbar scoliosis from the symptomatology of the non-service-connected intervertebral disc syndrome, degenerative arthritis/degenerative joint disease of the spine, and thoracic scoliosis. See Mittleider at 182. As such, the Board will only consider symptoms and impairment attributed to the lumbar scoliosis in considering whether an increased disability rating in excess of 10 percent is warranted for any part of the increased rating period from December 27, 2012. VA and private treatment records dated throughout the course of the appeal and the Veteran's own statements through the course of this appeal reflect consistent reports of chronic low back pain. A June 2013 private treatment record notes that the Veteran reported lower lumbar back pain while running for the previous four to five days. An assessment of acute lumbosacral strain was rendered. In March 2014 written statements, the Veteran reported constant/weekly back pain that affected his work. See also July 2015 written statement (Veteran reports excruciating back pain). At the January 2016 Board hearing, the Veteran reported ongoing back pain on a daily or weekly basis. See Board hearing transcript at 16-19. At the September 2014 VA examination, the Veteran reported ongoing flare-ups of low back pain and sudden twinges. The Veteran reported that on some days he is unable to get out of bed or perform activities as well as difficulty bending over. The Veteran reported piercing pain during flare-ups if he moves into certain positions as well as difficulty sitting for long periods of time. A diagnosis of lumbar scoliosis was noted. Upon physical examination in September 2014, range of motion testing revealed flexion to 90 degrees with objective evidence of painful motion at 40 degrees, extension to 30 degrees with objective evidence of painful motion at 10 degrees, right lateral flexion to 30 degrees with objective evidence of painful motion at 10 degrees, left lateral flexion to 30 degrees with objective evidence of painful motion at 20 degrees, right lateral rotation to 30 degrees with objective evidence of painful motion at 30 degrees, and left lateral rotation to 30 degrees with objective evidence of painful motion at 20 degrees. No additional limitation of motion was noted upon repetition. Functional impairment of pain on movement was noted as well as localized tenderness for joints and/or soft tissue of the thoracolumbar spine. No muscle spasm, guarding, intervertebral disc syndrome, or episodes of incapacitation over the previous 12 month period were noted. The September 2014 VA examiner noted contributing factors of pain, weakness, fatigability, and/or incoordination. Additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time was also noted with the additional limitation affecting lifting. The VA examiner was unable to provide the degree of additional limitation of motion without resorting to mere speculation because the examination showed only mild pain during range of motion testing and no significant loss of motion during repetitive use. The VA examination report notes that flare-ups caused limitations for prolonged lifting or bending. As discussed above, the symptoms documented at the March 2016, December 2016 and January 2017 VA examination reports, including findings related to limitation of motion, have been specifically attributed to non-service-connected lumbar spine disabilities, specifically, intervertebral disc syndrome, degenerative arthritis/degenerative joint disease of the spine, and thoracic scoliosis. As such, such findings cannot serve as a basis for a higher rating for the service-connected lumbar scoliosis. See Mittleider at 182. After a review of all the evidence, the Board finds that, for the entire rating period from December 27, 2012, the lumbar scoliosis has been manifested by forward flexion limited to 40 degrees, painful motion, and flare-ups causing limitations with lifting and bending, which more nearly approximate the criteria for a 20 percent disability rating under Diagnostic Code 5239. 38 C.F.R. §§ 4.3, 4.7, 4.71a. Range of motion testing at the September 2014 VA examination reflected flexion to 90 degrees with objective evidence of painful motion at 40 degrees. See VAOPGCPREC 9-98 (interpreting that painful motion is considered limited motion at the point that the pain actually sets in). The Board further finds that an increased disability rating in excess of 20 percent under Diagnostic Code 5239 for lumbar scoliosis is not warranted for any part of the increased rating period from December 27, 2012. The next higher rating in excess of 20 percent (40 percent) under the General Rating Formula for Diseases and Injuries of the Spine requires forward flexion of the thoracolumbar spine limited at 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. As noted above, range of motion testing conducted at the September 2014 VA examination records lumbar spine forward flexion to 90 degrees with objective evidence of painful motion at 40 degrees. The Board finds that this does not more nearly approximate limitation of flexion to 30 degrees or favorable ankylosis of the entire thoracolumbar spine, as needed for the next higher (40 percent) disability rating. (To the extent that the March 2016 VA examination report notes lumbar spine forward flexion to 30 degrees, this has been attributed to the non-service-connected degenerative joint disease with disc bulging, protrusion, and extrusion of the lumbar spine; as such, this measure cannot serve as a basis for an increased disability rating for the lumbar scoliosis currently on appeal.) For these reasons, a disability rating in excess of 20 percent for the lumbar scoliosis is not warranted under the General Rating Formula for the Spine for any part of the increased rating period from December 27, 2012. 38 C.F.R. § 4.71a. The Board has considered whether a higher disability rating for the lumbar scoliosis is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca. In this case, there is no question that the lumbar scoliosis has caused painful motion, which has restricted overall motion. The Veteran has consistently reported chronic lumbar spine pain; however, as noted above, taking into account additional functional limitation due to pain, the VA examination reports indicate ranges of motion for the entire rating period that do not more nearly approximate the 40 percent criteria. Based on the above, the degree of functional impairment does not warrant a higher rating based on limitation of motion for the lumbar scoliosis. The Board further finds that a higher (40 percent) disability rating is also not warranted under the formula for rating Intervertebral Disc Syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The VA examination reports note no incapacitating episodes of intervertebral disc syndrome during any 12 month period. Further, the March 2016 VA examiner specifically attributes the intervertebral disc syndrome to the non-service-connected degenerative joint disease. The Board finds that the weight of the evidence of record is against finding that the lumbar scoliosis has been manifested by at least 4 weeks of incapacitating episodes requiring physician ordered bed rest over a 12 month period (as required for a higher 40 percent rating), and the Veteran has not alleged otherwise. 38 C.F.R. §§ 4.3, 4.7. Further, the Board finds that a separate rating for neurological impairment associated with the lumbar scoliosis not warranted for any part of the initial rating period. As discussed above, the instances of sciatica and lower extremity paresthesias have been attributed to non-service-connected degenerative joint disease with disc bulging/protrusion/extrusion of the lumbar spine and right S1 radiculopathy status post right L5 to S1 microdiscectomy. See March 2016, December 2016, and January 2017 VA examination reports. The VA examination reports note no bowel or bladder dysfunction, radicular pain, or any or any other signs of symptoms due to radiculopathy attributable to the lumbar scoliosis. Based on the evidence of record, the Board finds that a separate rating for neurological impairment associated with lumbar scoliosis is not warranted for any part of the increased rating period. Finally there is no evidence of record of any scars associated with the lumbar scoliosis nor has the Veteran asserted otherwise. While the March 2016 VA examination report notes a scar on the back, this is attributable to the microdiscectomy the Veteran underwent to the treat the right S1 radiculopathy in 2015 and not the service-connected lumbar scoliosis. Based on the evidence of record, the Board finds that the Veteran is not entitled to a separate compensable rating under Diagnostic Codes 7800 through 7805 for scars related to the service-connected lumbar scoliosis. 38 C.F.R. § 4.118. Extraschedular Referral Considerations The Board has considered whether referral for an extraschedular rating is warranted for the lumbar scoliosis for any part of the increased rating period. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2017). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate; therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular rating is, therefore, adequate, and no referral is required. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the lumbar scoliosis is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The lumbar scoliosis has been manifested by forward flexion to 40 degrees, painful motion, and flare-ups causing limitations with lifting and bending. The schedular rating criteria specifically provides ratings painful arthritis (Diagnostic Code 5003, 38 C.F.R. § 4.59), muscle spasms of the spine (Diagnostic Codes 5235 to 5242) and limitation of motion (Diagnostic Codes 5235 to 5242 (spine)), including motion limited due to orthopedic factors such as pain and stiffness (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), which are incorporated into the schedular rating criteria. As for functional impairment with respect to forward or lateral bending, such impairment is specifically contemplated in the schedular rating criteria. Forward flexion is explicitly part of the schedular rating criteria and a schedular rating may be based on forward flexion alone. Lateral bending is part of the schedular rating criteria under combined range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Spine Disabilities, Plate V. Further, as to functional impairment with respect to lifting, the lifting of day-to-day objects (to the extent the lifting is performed by the back rather than only arms and shoulders) may suggest lifting of the objects in the position of slight forward flexion, although simply lifting objects may equally involve minimal back flexion or movement when lifting by primarily using the legs, arms, and shoulders. As noted above, to the extent that lifting requires forward flexion or lateral bending, forward flexion and lateral bending are part of the schedular rating criteria. To the extent that bending and lifting causes incidental pain in the lumbar area, such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Burton at 4 (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant's disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). In this case, comparing the disability level and symptomatology of the lumbar scoliosis to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the lumbar scoliosis, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of a rating claim when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal. A March 2017 VA examination report notes that the Veteran has worked as a marine machine supervisor from 2006 to present. While the Veteran reported missing some work due to low back pain, see e.g., January 2015 written statement, the Veteran has not contended that he is unemployed because of service-connected disabilities, and the other evidence of record does not so suggest; thus, the Board finds that Rice is inapplicable in this case because neither the Veteran nor the evidence suggests unemployability due to the service-connected disabilities. ORDER Service connection for undiagnosed right ankle and foot joint pain as due to a qualifying chronic disability is granted. An increased disability rating of 20 percent, but no higher, for lumbar scoliosis is granted. ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs