Citation Nr: 0005728 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-18 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of a back injury, with arthritis and scoliosis, prior to March 18, 1997. 2. Entitlement to an evaluation in excess of 20 percent for residuals of a back injury, with arthritis and scoliosis, from March 18, 1997, to May 20, 1999. 3. Entitlement to an evaluation in excess of 40 percent for residuals of a back injury, with arthritis and scoliosis, beginning May 21, 1999. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The veteran had active service from November 1950 to November 1952. This matter originated with an appeal from a regional office (RO) rating decision of December 1991, which denied service connection for a back disorder. Subsequently, by rating decision of October 1992, service connection for residuals of a back injury with scoliosis and arthritis was granted, and assigned a noncompensable evaluation, and the veteran appealed the rating. By rating action of October 1994, he was granted a 10 percent rating for his back disability, effective November 21, 1991, the date of his claim for service connection. The case was remanded in December 1996 and again in March 1999. In October 1999, the RO assigned a 20 percent rating, effective March 18, 1997, and a 40 percent rating, effective May 21, 1999. However, the United States Court of Veterans Appeals (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet.App. 35, 38 (1993). Moreover, because the appeal is from the original grant of service connection, each of the "staged" ratings must be evaluated. See Fenderson v. West, 12 Vet.App. 119 (1999). FINDINGS OF FACT 1. For the period from November 21, 1991 to March 17, 1997, the veteran's back injury residuals were manifested by disc abnormalities, radiculopathy, pain consistent with sciatica and varying levels of limitation of motion. 2. For the period from March 18, 1997 to May 20, 1999, the veteran's back injury residuals were manifested by severe limitation of motion 3. Beginning May 21, 1999, the veteran's back disability has been manifested by signs of severe disc disease, such as limitation of motion and muscle spasm, without diminished ankle jerks or evidence of pronounced disease. CONCLUSIONS OF LAW 1. For the period from November 21, 1991 to March 17, 1997, the schedular criteria for a 20 percent evaluation for residuals of a back injury, with arthritis and scoliosis, were met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, Part 4, Code 5293 (1999). 2. For the period from March 18, 1997 to May 20, 1999, the schedular criteria for a 40 percent evaluation for residuals of a back injury, with arthritis and scoliosis, were met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, Part 4, Code 5293 (1999). 3. For the period beginning May 21, 1999, the criteria for an evaluation in excess of 40 percent for residuals of a back injury, with arthritis and scoliosis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, Part 4, Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's contentions regarding the increase in severity of his disability constitute a plausible or well- grounded claim. Shipwash v. Brown, 8 Vet.App. 218 (1995). The relevant facts have been properly developed, and, accordingly, the statutory obligation of the Department of Veterans Affairs (VA) to assist in the development of the appellant's claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1996). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1996). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1996); Schafrath v. Derwinski, 1 Vet.App. 589 (1991). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1996); Schafrath. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Additionally, because this appeal ensues from the veteran's disagreement with the rating assigned in connection with her original claim, separate, or "staged," ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet.App. 119 (1999). In this case, the veteran has been assigned a 10 percent rating for the period from November 21, 1991, the date of his claim, to March 17, 1997; a 20 percent rating from March 18, 1997, to May 20, 1999; and a 40 percent rating beginning May 21, 1999. Factual Background Service medical records show the veteran's treatment for low back pain in January 1951. In April 1952, he again complained of low back pain, this time with radiation into the hips. X-rays at that time were interpreted as showing scoliosis with moderate arthritic changes of the lumbar spine. In July 1952, low back pain was again noted, and he stated he had been hit in the back 18 months earlier. Two days later, it was reported that an X-ray had showed arthritis of the lumbar spine. In August 1952, continuous low back pain was noted. A consultation in September 1952 concluded that examination revealed mild scoliosis, but the arthritic changes were not seen. It was not clear whether the X-rays had been reviewed. Subsequent to service, the veteran underwent surgery for a ruptured disc of L-5, on the right, in September 1966. Records dated from February to July, 1990, show the veteran's treatment by R. Graham, M.D., for left wrist complaints. In May 1990, he underwent a left de Quervain release. He was also noted to have osteoarthritis in multiple joints, including both wrists, as well as the neck and back, which were a wear and tear type arthritis. In September 1991, the veteran was examined by C. Fox, M.D. As pertinent to his back, he related that he had had nearly constant pain in his back over the past year or two. On examination he could flex forward to 80 degrees, and was noted to arise from the examining table without rolling over. A consult for the Social Security Administration in September 1991 noted that the veteran had flexion in the back to 90 degrees, and no significant functional limitations and no focal neurological deficits. According to a treatment record from J. Gassaway,M.D., dated in January 1992, the veteran was trying to get VA disability due to his back, but he could not work due to his wrist. Treatment records and correspondence from C. Secrest, M.D., dated from July 1990 to October 1992 show the veteran's treatment for complaints including low back pain, thought to be typical of herniated nucleus pulposus syndrome with bilateral sciatica. He initially sought treatment in July 1990, primarily for left wrist complaints, but he also complained of recurrent low back pain typical of herniated nucleus pulposus with sciatica for the past two years. Although in June 1992, Dr. Secrest wrote that the low back injury was at least partially related to injury sustained in service, in October 1992, he noted that the veteran had continuing problems with back pain as a result of a motor vehicle accident in June 1991. According to a VA examination in November 1992, the veteran had normal range of motion in the lumbar spine "for age." He had no tenderness, and straight leg raising was negative bilaterally. Range of motion of the lumbar spine was flexion to 95 degrees, extension to 35 degrees, lateral flexion to 40 degrees bilaterally, and rotation to 35 degrees bilaterally. The pertinent diagnosis was minimal, nontraumatic degenerative arthritis, with "practically nothing" in the way of objective findings. However, a VA outpatient note later that month reported that the veteran moved slowly and with some discomfort. He had mild tenderness over the spinous processes at the lumbo- sacral junction. There was no spasm. Flexion was limited to 60 degrees, while extension and lateral bending were intact. Straight leg raising was equivocally positive at 30 to 45 degrees on the right, with pain mostly in the lower back. Deep tendon reflexes were 2+ bilaterally. The assessment was chronic low back pain, with nerve root compression to be ruled out. A computerized tomography (CT) scan in January 1993 disclosed postoperative changes and an L4 osteophyte. An evaluation in the neurosurgery clinic in January 1993 noted straight leg raising to be positive on the right at about 20 degrees, and negative on the left. Magnetic resonance imaging (MRI) in February 1993 disclosed only a small osteophyte at L2-3, with no evidence of cord or nerve root compression. On follow-up in April and May 1993, the veteran continued to complain of low back pain. In May, it was noted that straight leg raising was negative on the right and positive on the left. Deep tendon reflexes were equal bilaterally. According to a letter from P. Wisniewski, D.O., dated in February 1993, the veteran had right sciatic neuralgia, with significant weakness in the right leg; he was unable to do straight leg raising on that side. In March 1993, the veteran underwent a neurological evaluation by T. Windham, M.D., who noted that the veteran's posture, station and gait were good. He had mild loss of back motion. Straight leg raising was negative on the left and positive at 45 degrees on the right. Reflexes were all diminished, and the veteran had moderate weakness with extension of the right foot and ankle. The impression was lumbar disc rupture, and a myelogram was planned. The myelogram showed bulging of the anulus fibrosa at the L4-5 level with a possible calcified disc fragment in the right lateral recess. There was evidence of stenosis on the right at the L5-S1 level. Radiographic studies showed degenerative disc disease at the L5-S1 level with asymmetric posterior element and L5 suggesting a previous right laminectomy. Dr. Windham noted in follow-up that the studies did not reveal a surgical lesion. The studies revealed post-surgical changes and degenerative changes, which should be managed conservatively. According to an outpatient treatment note from E. Lowe, M.D., in March 1993, the veteran had low back pain with radiation into the right leg. He had severe weakness in dorsiflexion of the right great toe and foot, and some paresthesia over the dorsum of the right foot. He had severe restriction of motion in the low back, and an MRI had shown a bulging at the L4-S1 disc level as well as right stenosis at L5-S1. According to a decision of the SSA dated in August 1993, the veteran was disabled under the Social Security Act with the primary diagnosis noted to be degenerative arthritis of the right wrist, and the secondary diagnosis status post lumbar laminectomy. Dr. Wisniewski wrote again in June 1993, noting that the veteran had radiographic evidence of a bulging disc at the L4-5 level and possible stenosis at the next lower level. He had chronic low back pain and right leg pain due to sciatic neuralgia. Dr. Wisniewski felt that the veteran was disabled. The veteran again underwent a VA examination in November 1993, which noted that the veteran had little in the way of findings except some stiffness in the back. The MRI did not show any current active disc pathology, and the degenerative changes were at most minimal. A neurosurgery outpatient note dated later in November 1993 noted that an electromyogram in July 1993 had shown L4-5 radiculopathy, consistent with postoperative changes from the 1966 surgery. An MRI in February 1993 was interpreted as showing an osteophyte at L2-3, but no herniation or root compression evident. On examination, knee jerks were 2+ on the right and 1+ on the left. There was decreased dorsiflexion and plantar flexion on the right. Straight leg raising was positive at 30 degrees bilaterally. The assessment was no surgical lesion. According to an examination conducted by R. Barnett, M.D., in February 1994, the veteran walked with a cautious gait, and limped slightly on the left leg. He had 30 degrees of flexion, very little extension, and diminished lateral flexion. He had an absence of the Achilles reflex, and extremely limited straight leg raising bilaterally, worse on the right. X-rays reportedly showed hyperostosis of a significant degree and loss of the curvature. He obviously had extensive arthritis in the low back. Dr. Wisniewski wrote again in April 1994 that the veteran had chronic back pain due in part to osteoarthritis and in part to degenerative disc disease. He felt the veteran was unemployable. According to a VA examination in July 1994, the veteran stated that he had had to quit his job in 1990 due to low back pain. He continued to have some low back pain, with pain down the back of each leg to the foot, with burning on the sole of each foot, worse on the right. He had pain with coughing, sneezing, sitting, lying, standing or walking, bending or stretching. On examination, he walked well without a limp. The spine was straight, and there was no spasm. He complained of pain in the lower lumbar region on forwarding being at 35 degrees, backward extension at 1 degree, left lateral bending at 10 degrees, and right lateral bending at 15 degrees. He could walk on his heels and toes. Motor function and reflexes were intact. There was 1/4-inch atrophy of the thighs and 1/2-inch atrophy of the left calf. He complained of low back pain on maneuvers, which did not appear to be organic. He complained of tenderness from T9 to the sacrum which did not appear to be organic. The examiner noted that "there [was] much functional overlay, histrionics and attempts to deceive the examiner in the entire examination." X-rays showed slight narrowing of the L2 interspace with slight spurring, and marked spurring at the L4 upper border. There was a trace of left dorsolumbar scoliosis, and some spurring at the right L1 and L3 interspaces and the left L2 interspace. An MRI in February 1993 had shown some posterior spurring at the L2 and L4 interspace. The diagnosis was old injury of lower lumbar disc with persistent complaints and marked functional overlay. Physically, he was capable of a reasonable amount of standing, walking, stooping, and bending, and light lifting. In February 1995, F. L. Horn, M.D., wrote that the veteran had had low back pain, with an MRI in March 1993 having shown evidence of a bulging annulus fibrosa at the L4-5 level. He was having pain, stiffness, and soreness of his entire spine, lower back, and legs, felt to be consistent with sciatica, felt to be chronic and disabling. According to a VA examination in March 1997, the veteran stated that walking was more comfortable than any other position or activity. His right leg felt "heavy" at times, and he sometimes had radiation of pain into the right ankle from the back. On examination, he had a normal gait, with a level pelvis and no scoliosis. Flexion was to 30 degrees, extension to 5 degrees, right lateral bending to 10 degrees, left lateral bending to 10 degrees,, with no outward evidence of pain at the extremes of motion. Axial compression caused no pain. He was tender over the surgical scar. Straight leg raising was positive at 80 degrees on the right, and negative on the left. Deep tendon reflexes were active and equal in the knees and ankles bilaterally. There was no motor or sensory weakness in the lower extremities, and there was no evidence of atrophy. X-rays of the lumbar spine revealed slight narrowing of the L5-S1 disc with small osteophytes at every level. The impression was degenerative disc disease, multilevel, of the lumbar spine, and osteoarthritis of L5-S1, felt to be the result of aging. According to a pain clinic note dated in November 1997, the veteran was being treated for low back pain, secondary to arthritis. An MRI performed at North Mississippi Health Services in March 1999 disclosed a moderate diffuse disc bulge at L2-3, with end plate spurring resulting in relative stenosis; moderate diffuse disc bulge at L4-5, with end plate spurring resulting in relative stenosis and bilateral neural foraminal encroachment; and L5-S1 mild diffuse disc bulge without significant stenosis. VA pain clinic records dated in May and June 1999 show his treatment for severe back pain, with medication including Percocet and morphine sulfate. On a VA examination in September 1999, the veteran complained of back and leg pain, weakness in his legs, stiffness in his back, easy fatigability and lack of endurance. He stated that most of his pain was in his back, but about 40 percent was in the legs, and that his average pain was about a 6 on a scale of 10. Exacerbating or precipitating activities included sitting, standing and walking. Lying down alleviated the symptoms. He used a cane when walking, and a wheel chair for any distance traveled outside the house. He described his leg pain as beginning in his buttocks and radiating to just above the knee, occasionally to the ankle. On examination, there was mild lumbar tenderness at L5-S1. He had some paraspinous muscle spasm on the right, and sciatic notch tenderness bilaterally. He could not toe or heel walk, and he walked with a slightly antalgic gait. Flexion was to 45 degrees and extension to 5 degrees. Particularly, extension caused severe pain in his back and into his legs. He had negative straight raise on the left . Knee and ankle jerks were 2+ and symmetric. X-rays taken in July 1999 revealed disc space narrowing in the lumbar spine. The impression was degenerative joint disease of the lumbar spine, possible lumbar stenosis, given his radicular symptoms and pain on extension. A muscles examination in September 1999 noted that the veteran stated that activity made his pain worse, and that rest and morphine were the only alleviating factors. He stated that his back is still painful all of the time, and gets worse with activity. He stated he had flare-ups one to three times per week, during which he could not do anything and was bound to a wheelchair or bed. On examination, he had a flat lumbar area with loss of normal lordosis. He had areas of tenderness over the L5-S1 areas and T12-L1 areas. He had bilateral muscle spasms, and was mildly tender over the right sciatic notch. Straight leg raise was mildly positive bilaterally for leg pain. Passive range of motion was 0 degrees of extension, 30 degrees of flexion, 20 degrees of lateral bending bilaterally, and limited rotation. Active range of motion was to 45 degrees of flexion, 5 degrees of extension, 10 degrees of lateral bending to the left and 30 degrees of lateral bending to the right. He complained of pain with any motion of the spine. There was 5/5 strength in the bilateral quadriceps and hamstrings. He had 5- strength to ankle dorsiflexion and ankle plantar flexion on the left, and 4+ on the right. Deep tendon reflexes were 2+ and equal in the Achilles and patellar tendons. X-rays showed diffuse degenerative disc disease with moderate ankylosis, and appeared to have some spinal stenosis. The assessment was moderately severe disc disease of the thoracic lumbar spine, with a certain amount of spinal stenosis from the problem, which would need an MRI or CT scan to further assess. Analysis As a preliminary matter, regarding the weight and credibility of the evidence, the Board notes that the veteran has complained, in numerous written statements and in testimony at his hearing in May 1994, that the VA examinations in November 1992 and November 1993 were not accurate representations of what transpired during the course of the interviews. The veteran feels that these two examinations should be removed from the file. However, the Board notes that these reports reflect the examiners medical opinion, and as such, are part of the evidentiary record. However, in determining the weight to be assigned these examination reports, the Board has considered them in the context of the veteran's complaints, as well as the other evidence of record, particularly that contemporaneous to the identified examinations. In addition, the veteran has complained about the July 1994 examination report. However, the veteran's complaints regarding this report are addressed more to the conclusions reached, which the veteran feels were influenced by the earlier examinations, than the examination itself. Such contentions are speculative, and pertain to matters beyond the veteran's competence. See, e.g., Grottveit v. Brown, 5 Vet.App. 91 (1993). Moreover, the examination findings and conclusions are specific to the examination, and reasons for the conclusions reached were provided. The fact that the veteran does not feel that the findings were favorable to his claim is not a sufficient basis on which to disregard the findings. The veteran's disability, although called "residuals of a back injury, with arthritis and scoliosis," has been evaluated under diagnostic code 5292-5293. Code 5293 pertains to intervertebral disc syndrome, provides that postoperative, cured intervertebral disc syndrome is noncompensable. Mild intervertebral disc syndrome warrants a 10 percent rating. For moderate intervertebral disc syndrome with recurring attacks, a 20 percent rating is merited, and severe disease with recurring attacks, with intermittent relief warrants a 40 percent rating. Pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief, warrants a 60 percent rating. 38 C.F.R. Part 4, Code 5293 (1999). Moreover, VA has determined that limitation of motion must be considered when evaluating disability pursuant to diagnostic code 5293, and that a separate rating under diagnostic code 5292, limitation of motion of the lumbar spine is not for application. VAOPGCPREC 36-97 (Dec. 1997). Additionally, because disc disease can cause loss of range of motion because of the nerve defects and resulting pain associated with injury to the sciatic nerve, 38 C.F.R. §§ 4.40 and 4.45, which pertain to factors such as functional limitation due to pain, weakened movement, and excess fatigability, must be considered when a disability is evaluated under this diagnostic code. Johnson v. Brown, 9 Vet. App. 7 (1996). However, when evaluating functional loss due to pain, "adequate pathology" is contemplated. 38 C.F.R. § 4.40 (1999). Prior to March 18, 1997 Ever since service, when there was conflicting evidence as to whether the veteran had arthritis, there has been conflicting evidence regarding the nature and severity of the veteran's back pathology. Concerning the degree to which the veteran's back disability is service-connected, because the medical evidence is ambiguous, and the RO has rated the back disability as service-connected, the Board will accept that the veteran's lumbar spine disability is service-connected, in its entirety. However, with regard to the manifestations and severity of the veteran's low back disability, the medical evidence has continued to contain significant variations in the findings. For the period from November 21, 1991 to March 17, 1997, during which the veteran has been assigned a 10 percent rating, two examinations in September 1991, and one examination in November 1992, showed forward flexion from 80 to 95 degrees. However, an outpatient treatment note dated in November 1992 showed pain on motion, and flexion was only possible to 60 degrees. In February 1994, a private doctor found only 30 degrees of forward flexion. Similarly, a private neurological evaluation in March 1993 noted "mild" loss of back motion, while another private examination that month described "severe" restriction of motion in the low back. Similar discrepancies are shown in reports of weakness, gait abnormalities, and straight leg raising tests. Deep tendon reflexes ranged from full to diminished to, in February 1994, absent. In view of these inconsistencies, it is significant to note that a VA examiner in July 1994 believed there to be a significant functional overlay to the veteran's complaints, noting that much of the pain did not appear to be organic. As a result, and because of the discrepancies of symptoms, we must accord greater weight to symptoms in which the variations have not been extreme, particularly objective symptoms, and symptoms which are consistent with the level of objective findings. The veteran did not evince any muscle spasms during this period. Radiographic studies, while showing a bulging disc and evidence of stenosis, as well as an osteophyte, did not disclose cord or nerve root compression. However, while limitation of motion has varied, there has been some limitation of motion on virtually all of the evaluations subsequent to September 1991. Moreover, electromyogram findings in November 1993 showed radiculopathy, and the veteran's pain, in February 1995, was felt to be consistent with sciatica. Consequently, the evidence is more reflective of "moderate" disc syndrome during this time period, and, accordingly, a 20 percent rating is warranted. However, in view of the absence of consistent evidence of more severe symptoms, an evaluation in excess of 20 percent is not warranted during this time period. March 18, 1997 to May 20, 1999 For the period from March 18, 1997 to May 20, 1999, for which the veteran has been assigned a 20 percent rating, the medical evidence consists of a VA examination in March 1997, a pain clinic note dated in November 1997, and an MRI scan report dated March 1999. The VA examination showed severe limitation of motion; however, there was no pain on motion. Deep tendon reflexes were active, and there was no motor or sensory weakness, or evidence of atrophy in the lower extremities. Degenerative changes in the lumbar spine were felt to be slight. The MRI showed disc bulging and stenosis involving more discs than previously, and foraminal encroachment was shown at L4-5. Thus, based on the MRI findings and the severe limitation of motion, the veteran should be assigned a 40 percent evaluation for the period beginning March 18, 1997. See 38 C.F.R. Part 4, Code 5292 (1999). However, in view of the absence of manifestations associated with disc disease on physical examination, an evaluation in excess of 40 percent is not warranted for that time period. Beginning May 21, 1999 Regarding whether an evaluation in excess of 40 percent is warranted for the period beginning May 21, 1999, VA pain clinic records dated in May and June 1999 show his treatment for severe back pain. However, the VA examinations in September 1999 disclosed limitation of motion less severe than in the earlier examination. Moreover, although he had symptoms of disc disease such as muscle spasm, radiation of pain on extension, and sciatic notch tenderness, he walked with only a slight limp, and his deep tendon reflexes, including ankle jerks, were 2+ and symmetric on both examinations. Accordingly, his disc disease is not in excess of the symptoms contemplated for "severe" disease. Additionally, a question as to which of two evaluations to apply has not been presented, and the disability picture does not more nearly approximate the criteria required for the next higher rating. 38 C.F.R. § 4.7 (1994). Moreover, although the veteran has complained of factors such as functional limitation due to pain, weakened movement, and excess fatigability, such factors have been taken into consideration in the assigned evaluations, and functional loss in excess of that is not supported by "adequate pathology." See 38 C.F.R. § 4.40; Johnson. Preliminary review of the record reveals that the RO expressly declined referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extra-schedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). ORDER An evaluation of 20 percent for residuals of a back injury, with arthritis and scoliosis, is granted for the period from November 21, 1991 to March 17, 1997, subject to regulations governing the payment of monetary benefits. An evaluation of 40 percent for residuals of a back injury, with arthritis and scoliosis, is granted for the period from March 18, 1997 to May 20, 1999, subject to regulations governing the payment of monetary benefits. An evaluation in excess of 40 percent for residuals of a back injury, with arthritis and scoliosis, beginning May 21, 1999, is denied. JEFF MARTIN Member, Board of Veterans' Appeals