Citation Nr: 1804188 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 05-38-955A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent prior to April 27, 2017 and in excess of 40 percent from April 27, 2017 for a back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Brozyna, Associate Counsel INTRODUCTION The Veteran served on active military duty from December 1988 to December 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the December 2006 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2008, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In September 2008, June 2011, and September 2012, the Board remanded the issue on appeal for further development. In a December 2013 decision, the Board denied the claim for an increased rating for a back strain. The Veteran subsequently appealed this issue to the United States Court of Appeals for Veterans Claims (Court). In September 2014, the Court, pursuant to a Joint Motion for Partial Remand (JMR), vacated the Board's decision to the extent that it denied a higher rating for a back strain and remanded the issue for readjudication. In a December 2014 decision, the Board again denied the claim. The Veteran appealed to the Court. In September 2015, the Court, pursuant to a JMR, vacated the Board's decision and remanded the matter for further development and readjudication. In February 2016 and February 2017, the Board remanded the claim for further development. The RO granted additional increased ratings of 40 percent effective April 27, 2017 for the Veteran's back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 in a July 2017 rating decision. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The issue has been updated on the title page to reflect the new staged ratings. The issue of entitlement to a total disability rating based on individual unemployability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. This issue has also been updated on the title page. FINDINGS OF FACT 1. The record shows that, between May 8, 2006 and April 27, 2017, the service-connected back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 has been manifested by some limitation on motion, abnormal spinal contour, functional loss due to flare-ups of pain, fatigability, and pain on movement with two reported episodes of incontinence during this period. 2. For the period beginning on April 27, 2017, the Veteran's service-connected back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 has been manifested by some limitation on motion, abnormal spinal contour, functional loss due to flare-ups of pain, fatigability, and pain on movement. It was not productive of unfavorable ankylosis of the entire thoracolumbar spine or the entire spine; or, incapacitating episodes, or bowel or bladder impairment attributable to the lumbar spine disorder. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating effective May 8, 2006 for back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 has been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2017). 2. The criteria for a rating in excess of 40 percent, beginning April 27, 2017, for back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Duties to Notify and Assist The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. In October 2006, VA notified the Veteran of information and evidence needed to substantiate an increased rating claim, to include notice of what part of that evidence is to be provided by the Veteran and notice of what part VA will attempt to obtain. VA has also fulfilled its duty to assist the Veteran and has obtained identified and available evidence to substantiate an increased rating claim. In a February 2017 decision, this matter was remanded to the RO for further development. The Board finds there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 147 (1999). II. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board also observes that disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, supra. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Back Strain The Veteran seeks a higher rating for his service-connected back strain back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5, rated at 20 percent prior to April 27, 2017 and rated at 40 percent from April 27, 2017. The Veteran's back strain with a history of minimal diffuse bulge at L2-3, L3-4, and L4-5 is rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.71a. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): 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 normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. The Veteran submitted a claim for service connection for a back disability in December 1998. VA has acknowledged the Veterans' in-service back injuries via the grant of service-connection from August 1999. The claim now comes before the Board through a May 8, 2006 increased rating claim. See Informal Claims receipt date May 8, 2006. As noted above, disability evaluations are based upon symptoms demonstrated in the evidence during the periods of the claim. The Board has reviewed the Veteran's statements from both him and his representative, lay statements, VA examination reports, and treatment records for evidence of symptoms related to his back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). The Board finds that the lay evidence referencing the Veteran's flare-ups is analogous to the 40 percent rating requirements. The Board also finds that a preponderance of the evidence is against a rating in excess of 40 percent. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, the Board assigns a 40 percent rating effective May 8, 2006 for his service-connected back strain back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5. Beginning with the Veteran's statements, he contends that his back has caused him a great deal of pain and difficulty in his day to day living activities. See VA 9 Appeal to Board of Appeals February 2008 at 1. At the March 2008 Hearing, the Veteran indicated he continued to have inflammation and swelling, noting that his back was locking up more. See Hearing Testimony at 14. The Veteran also noted he has not noticed any bowel problems. Id. at 17. In a correspondences dated April 2010, it was noted that the Veteran's back injury flared up and caused inflammation which irritated the sciatic nerve and caused him to miss over a week of work. See Correspondences dated April 2010 at 1. It was further noted that the Veteran's back condition is responsible for 24 to 48 days of incapacity to work every year. See Appellate Brief receipt date May 2011 at 2. In addition, the Veteran indicated that his radiologist explained that his back injury is at least a disability rating of 40 percent. See Notification Letter receipt date November 2012 at 2. The Veteran continued to relay having ongoing symptoms of debilitating pain, severe back spasms, swelling, and stiffness with reports of spinal column popping, limited flexibility, and two episodes of incontinence. Id. at 3. The Veteran also relayed that he was unable to perform range of motion during the January 2014 Compensation and Pension examination due to a sciatic flare-up that affected his entire back. See Correspondence receipt date October 2014 at 3. He further relayed that the Emergency Room prescribed him a steroid injection and additional steroid medication. Id. The Board finds that the Veteran is competent to report experiencing back pain, severe back spasms, swelling, stiffness, limited flexibility, and episodes of incontinence, which is within the realm of his personal experience. 38 C.F.R. § 3.159; See Layno v. Brown, 6 Vet.App. 465, 469-71 (1994). His reports regarding back pain and severe back spasms, swelling, stiffness, limited flexibility and episodes of incontinence are credible and probative, as they are internally consistent and consistent with contemporaneous medical records. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Turning to lay statements, the Veteran had several lay statements submitted in support of his claim. VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). In a statement dated April 2010, a friend noted he was aware of the Veteran's severe back disabilities and all the efforts he makes to try and work and maintain employment despite the pain he suffers. See Lay Statement receipt date April 2010. Another friend indicated she has assisted the Veteran by cleaning his apartment, helping with laundry, cooking, taking out the trash, sometimes driving him to the grocery store and to doctor appointments due to the severity of his back injury and discomfort. See Lay Statement receipt date April 2010. She also indicated that when the Veteran's back locks up and flares up he is in severe pain to the point of being unable to stand or sit for long periods. Id. A former supervisor noted he learned that due to the Veteran's back injury he was put on light duty status so he could attend his physical therapy sessions. See Lay Statement receipt date August 2012. Another friend indicated the Veteran's back goes out on him often putting him in a debilitative state causing him to be bed ridden for weeks at a time. See Lay Statement receipt date November 2012 at 1. This friend noted that the Veteran relayed he is unable to do household chores or prepare his own food when he experiences these pains and severe muscle spasm flare-ups. Id. The provided lay statements are both competent and credible, as they concern the lay-observable impact of his symptoms, and are provided some probative weight. Turning to the medical evidence, VA Treatment records from January 2005 - May 2006 indicated the Veteran had chronic low back pain with occasional sciatica down the leg that has limited his ability to workout. See Medical treatment records receipt date October 2006 at 13-14. A November 2006 VA examination indicated the Veteran's back strain had been intermittent with remissions and had been treated with nsaid, muscle relaxers, and pain medications, taken as needed. See VA Examination receipt date November 2006 at 7. The examination results indicated the Veteran had moderate effects on his usual daily activities of chores, exercise, and sports. Id. at 16. VA Treatment records from March 2007 - December 2008 indicated continued chronic low back pain. See Medical treatment records receipt date December 2008. An August 2009 Magnetic Resonance Image indicated dehydration of the L4-5 disc with mild bulging and central annular tear with mild foraminal narrowing and no nerve root defect was seen. See Medical treatment record receipt date September 2009. A December 2009 VA examination indicated the Veteran is being treated for low back pain with traction, physical therapy, and medication. See VA Examination receipt date December 2009 at 2. The examiner indicated the response to treatment was good and that the Veteran did not have a history of urinary or fecal incontinence. Id. The examiner noted there are moderate flare-ups of the spinal conditions with the frequency being every 2-3 weeks for a duration of 1-2 days. Id. It was noted that the Veteran had objective abnormalities of the thoracic sacrospinalis to include pain with motion left and right and tenderness left and right. Id. at 3. It was further noted that there are no incapacitating episodes due to IVDS. Id. at 4. The examiner also reported that there is no objective evidence of pain on active range of motion and indicated the following ranges of motion of the thoracolumbar spine: flexion 0 to 60 degrees, extension 0 to 15 degrees, left lateral flexion 0 to 25 degrees, left lateral rotation 0 to 20 degrees, right lateral flexion 0 to 25 degrees, and right lateral rotation 0 to 20 degrees. Id. The examiner concluded that the Veteran had moderate effects on his usual daily activities of exercise and sports, and a mild effect on traveling. Id. at 4-5. VA Treatment records from February 2009 - January 2010 reported left sided back spasm, chronic low back pain, right sided soreness, an exacerbation of lower back pain in 2002, a flare-up occurring in August 2009, participation in a walking program, and reports of the Veteran experiencing severe pain (10/10) that affected his ability to walk. See Medical treatment records receipt date January 2010. In a September 2011 VA examination the Veteran relayed that he has constant back pain with pain radiating into his anterior thighs intermittently. See VA Examination receipt date September 2011 at 4-5. The examiner noted there were severe flare-ups of the spinal conditions occurring every 2-3 weeks for a duration of 1-2 days. Id. at 5. The examiner also noted the following ranges of motion of the thoracolumbar spine: forward flexion 0 to 90 degrees; extension 0 to 30 degrees; right and left lateral flexion 0 to 30 degrees; left and right lateral rotation 0 to 30 degrees. Id. at 6. A December 2012 VA examination indicated the Veteran had a diagnosis of degenerative disk disease and strain. See VA Examination receipt date December 2012 at 1. The Veteran relayed that he had flare-ups, experienced bad muscle spasms, and that these episodes are debilitating and he goes to bed. Id. at 2. The examiner noted the Veteran has not been ordered by an M.D. to bedrest, therefore these episodes are not incapacitating. Id. The examiner also reported the following ranges of motion of the thoracolumbar spine: forward flexion 90 degrees or greater; extension 30 degrees or greater; right and left lateral flexion 30 degrees or greater; left and right lateral rotation 30 degrees or greater. Id. at 2-4. No objective evidence of painful motion was noted. Id. It was further noted that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes) and he did not have IVDS. Id. at 9. The examiner also noted the Veteran's thoracolumbar spine condition did not impact his ability to work and found that the Veteran had a normal lumbar spine. Id. at 12. VA Treatment records from May 2013 - December 2013 reported chronic low back pain and that the Veteran completed back brace training. See Medical treatment records receipt date December 2013. VA Treatment records from January 2014 indicated the Veteran arrived to his exam in a wheelchair and relayed he was having significant back pain. See Medical treatment records receipt date February 2016 at 1. VA Treatment records from May 2014 -June 2015 continued to indicate complaints and assessments of low back pain. See CAPRI receipt date February 2016. VA Treatment records from February 2016 - March 2016 indicated the Veteran participated in chronic low back pain classes. See CAPRI receipt date April 2016. In an April 2016 VA Disability Benefits Questionnaire the examiner opined that the opinions regarding functional limitations during flare-ups or repeated use over a period of time are not feasible as they rely strictly on subjective data. See VA Examination receipt date April 2016 at 1-2. The VA examiner further opined that the widely varying opinions given per other examiners regarding functional limitations during flare-ups or repeated use greatly demonstrated the purely subjective nature of reporting functional limitations during flare-ups or repeated use and concluded that she would also be resorting to mere speculation in rendering such opinions. Id. In an April 2016 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire the examiner indicated that the Veteran had current symptoms of daily moderate low back pain along with stiffness, spasms, intermittent left leg numbness, and tingling occurring every other month lasting for one week. See VA Examination receipt date April 2016 at 1-2. The Veteran relayed that his back pain is worse intermittently for unknown reasons. Id. at 2. The VA examiner also indicated that the Veteran relayed having flare-ups. Id. The examiner indicated the Veteran had abnormal ranges of motion and indicated the following ranges: forward flexion 0 to 70 degrees, extension 0 to 10 degrees, right and left lateral flexion of 0 to 20 degrees, and right and left lateral rotation 0 to 20 degrees. Id. The examiner further indicated that she is unable to say without mere speculation if the Veteran's pain, weakness, fatigability or incoordination significantly limits his functional ability with flare-ups. Id. at 4. The examiner indicated there is no ankylosis of the spine and noted that the Veteran does not have IVDS of the thoracolumbar spine. Id. at 6. She further noted the Veteran's thoracolumbar spine (back) condition impacts his work noting it interferes with prolonged standing, walking, lifting, and carrying. Id. at 9. The Veteran was noted as having last worked in 2010 part-time with the Red Cross. Id. at 10. An August 2016 private chiropractic treatment report indicated a diagnosis of chronic back pain with bulging discs; L2-L3, L3-L4, L4-L5 with significant hyperlordosis. See Third party correspondence receipt date August 2016 at 2. The chiropractor opined it is as likely as not that the Veteran's ongoing back issues are related to the 3 bulging discs having frequent contact with the sciatic nerve causing irritation which can cause debilitating pain and weakness. Id. He further opined, that associated with his chronic back strain and bulging disc, he will in all likelihood have regular on-going flare-ups that will continue to progress in frequency, duration, and intensity. Id. The flare-ups were noted to present with muscle spasms, neck pain, functional loss due to pain, fatigue weakness, sleep disturbances, or lack of endurance and coordination. Id. VA Treatment records from February 2012 - February 2017 indicated reports of chronic low back pain with notes indicating the Veteran has tried physical therapy, yoga, Tai Chi, and had been moved to the clinic. See CAPRI receipt date March 2017 at 49. Treatment records indicated there was no incontinence of bladder or bowel. Id. at 55 and 94-95. Per a December 2016 progress note it was indicated that the Veteran is no longer working as a driver but was offered a position as a contractor in Qatar and that he would consider it. Id. at 17. In an April 2017 VA examination the Veteran relayed he had flare-ups of the thoracolumbar spine (back) with severe pain about every other week. See CAPRI receipt date May 2017 at 6. He further relayed that the flare-ups can last for up to a week, that he stays home during that time, and if severe he will see a chiropractor during that time. Id. at 6. The examiner indicated the Veteran had abnormal ranges of motion of the thoracolumbar spine and indicated the following ranges: forward flexion 0 to 30 degrees, extension 0 to 10 degrees, right and left lateral flexion of 0 to 15 degrees, and right and left lateral rotation 0 to 15 degrees. Id. at 7. The April 2017 VA examiner further indicated that the range of motion contributes to a functional loss noting pain with range of motion. Id. With regard to flare-ups, the examiner indicated the examination is consistent with the Veteran's statements describing functional loss during flare-ups and that she is unable to say without mere speculation if pain, weakness, fatigability with flare-ups significantly limits functional ability with repeated use over a period of time without mere speculation. Id. at 8. It was further indicated that the Veteran did not have ankylosis of the spine or IVDS of the thoracolumbar spine. Id. at 11. VA Treatment records from May 2017 - June 2017 indicated there was no incontinence of bladder or bowel. See CAPRI receipt date July 2017 at 22. In addition, back pain was indicated throughout the above records. VA Treatment records covering the periods of May 2005 - September 2017 indicated there was no incontinence of bladder or bowel. See CAPRI receipt date September 2017 at 16. In addition, back pain was indicated throughout the above records. III. Rating for Period prior to April 27, 2017 Based on the foregoing, the Board finds the Veteran is entitled to an initial rating in excess of 20 percent prior to April 27, 2017 for his back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5. Beginning on May 8, 2006, the date of the claim, and prior to April 27, 2017, the medical evidence did not indicate the Veteran had forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or, unfavorable ankylosis of the entire thoracolumbar spine; or, unfavorable ankylosis of the entire spine to warrant an increased rating above 20 percent for his back strain. See Informal Claims receipt date May 8, 2006; 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. See DeLuca, supra. However, even though the medical evidence did not indicate the ranges of motions required for a higher disability rating, the lay evidence of record relayed functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Therefore, a rating of 40 percent with an effective date of May 8, 2006, for the Veteran's back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 is warranted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. IV. Rating for Period beginning on April 27, 2017 In the present case, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The April 2017 VA examiner indicated that the Veteran did not have ankylosis of the spine or IVDS of the thoracolumbar spine. CAPRI receipt date May 2017 at 11. In addition, as indicated in the foregoing, the evidence of record related to this rating period generally indicated reports of chronic low back pain, flare-ups of back pain about every other week, abnormal ranges of motion of the thoracolumbar spine, and functional loss due to pain with range of motion. See Infra at 9-16 (containing the Veteran's statements from both him and his representative, lay statements, VA examination reports, and treatment records for evidence of symptoms related to his back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5). Further, the clinical evidence does not establish and the Veteran has not alleged, that his thoracolumbar spine was ankylosed or that he experienced such symptoms as difficulty talking due to limited line of vision, difficulty breathing or eating, atlantoaxial or cervical subluxation or dislocation, or nerve root stretching, as is required for unfavorable ankylosis for VA compensation purposes. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Under these circumstances, a rating in excess of 40 percent beginning April 27, 2017 is not warranted for back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5. The Board has also considered whether the Veteran's service-connected back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 has resulted in intervertebral disc syndrome (IVDS) with incapacitating episodes as contemplated under Diagnostic Code 5243. In this regard, the December 2009 VA examiner, the December 2012 VA examiner, the April 2016 VA examiner, and the April 2017 VA examiners found that there were no incapacitating episodes due to IVDS. See VA Examination receipt date December 2009 at 4; See VA Examination receipt date December 2012 at 9; See VA Examination receipt date April 2016 at 6; and See CAPRI receipt date May 2017 at 11. Moreover, the VA examinations and clinical records fail to show any evidence of incapacity episodes due to back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 set forth in Code 5243, i.e., requiring bed rest prescribed by a physician. While a friend indicated the Veteran's back puts him in a debilitative bed ridden state for weeks at a time and the Veteran relayed flare-ups, bad muscle spasms, and debilitating episodes when he goes to bed, the 2012 VA examiner noted the Veteran had not been ordered by an M.D. to bedrest, and the records do not indicate any orders for bed rest. See Lay Statement receipt date November 2011 at 1; See VA Examination receipt date December 2012 at 1-2. Therefore these episodes are not incapacitating. As noted, the Veteran does not allege, and the record does not reflect a diagnosis of IVDS during the appeal period. Absent these indications, by definition, there have not been any incapacitating episodes under Diagnostic Code 5243. Therefore, a higher rating is not warranted under Diagnostic Code 5243 for intervertebral disc syndrome resulting in incapacitating episodes. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected low back disability with the established criteria found in the rating schedule. The Board finds that the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (providing ratings on the basis of ankylosis and limited flexion). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In this regard, the Veteran's 40 percent rating (formerly 20 percent) effective May 8, 2006 and 40 percent rating after April 27, 2017, contemplate the functional limitations as well as pain caused by the Veteran's low back disability. Total disability rating based on individual unemployability (TDIU) The Court held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a seperate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which the entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in this case, the evidence has not shown that the Veteran's service connected low back disability has rendered him unemployable. Rather, the most recent back examiners found the Veteran's disability would impair load bearing activities and an April 2016 examiner noted interference with prolonged standing, walking, lifting, and carrying. CAPRI receipt date May 2017 at 13-14; C&P Exam receipt date April 2016. In summary, the evidence did not indicate that his disability would markedly impact his ability to work. Accordingly, there is no need for further analysis with respect to this matter. In conclusion, after reviewing the overall record, entitlement to a 40 percent initial rating from May 8, 2006 for a back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 is warranted. However, a preponderance of the evidence is against a rating in excess of 40 percent from April 27, 2017. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A separate rating for fecal incontinence has been considered and is rejected by the Board. Throughout the claim period, there are two reported instances of fecal incontinence, dated in 2009, and none reported since that time. No diagnosis of a chronic disability has been made and as it has been an infrequent occurrence, the Board finds that it does not rise to the level of a separate compensable disability under DC 7332. ORDER Entitlement to a 40 percent initial rating from May 8, 2006 for a back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 is granted. A rating in excess of 40 percent from April 27, 2017 for a back strain with history of minimal diffuse bulge at L2-3, L3-4, and L4-5 is denied. REMAND Accordingly, the case is REMANDED for the following action: Provide a VA Form 21-8940 to the Veteran and ask him to provide information regarding his employment and financial information from 2010 forward. Ask the Veteran to provide IRS tax returns from 2010 through 2017 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2010 thru 2017 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs