Citation Nr: 0003722 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 95-03 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD W. Yates, Associate Counsel INTRODUCTION The appellant served on active duty from August 1969 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. That rating decision, in pertinent part, granted service connection for low back syndrome with degenerative disc disease at L4-L5 and L5-S1 and assigned thereto an initial disability rating of 20 percent, effective November 1993. In February 1997, the Board issued a decision that denied an increased initial disability evaluation for the appellant's service-connected degenerative disc disease of the lumbar spine. Thereafter, the appellant filed a timely appeal of the Board's decision with the United States Court of Appeals for Veterans Claims (the Court). In July 1997, the appellant's representative and counsel for VA filed a Joint Motion to Vacate and Remand the Board's decision and requested a stay of proceedings pending a ruling on the motion. In July 1997, the Court issued an Order that granted the motion and vacated the Board's decision of February 1997. The case was then remanded for further development, readjudication and disposition in accordance with the Court's Order. In March 1998, the Board remanded this case for additional examinations of the appellant and medical opinions. Following the requested development, the RO, in April 1999, issued a rating decision granting an increased initial disability rating of 40 percent, effective November 1993, for the appellant's service-connected degenerative disc disease of the lumbar spine. The appellant has maintained disagreement with this newly assigned initial disability rating. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected degenerative disc disease of the lumbar spine is manifested by: forward flexion from 45 to 60 degrees; backward extension from 5 to 15 degrees; bilateral rotation to 20 degrees; bilateral lateral bending to 20 degrees; no muscle atrophy or fasciculations; bilateral lower extremity strength of 5/5; normal sensation to light touch and pinprick; 2+ reflexes, symmetrical at knees and ankles; and complaints of intermittent severe back pain. X- ray examination of the lumbar spine revealed an impression of mild degenerative changes with narrowing intervertebral disc spaces at L4-L5 and L5-S1. 3. The veteran's service-connected degenerative disc disease of the lumbar spine does not result in more than severe intervertebral disc syndrome disability. CONCLUSION OF LAW The criteria for an increased initial disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 3.321(b)(1) and Part 4, including 4.7, 4.10, 4.40, 4.45, 4.71a and Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Considerations The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The initial assignment of a disability rating following the award of service connection is part of the original claim, and the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218 (1995). All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted, in pertinent part, that there is a "distinction between an original rating and a claim for an increased rating" and that this distinction "may be important . . . in terms of determining the evidence that can be used to decide whether the original rating on appeal was erroneous . . . ." Fenderson, at 126. Fenderson held that the rule articulated in Francisco v. Brown did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Francisco, the Court held that although VA regulations require review of the entire recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over current medical findings, and when an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. In Fenderson, however, the Court held that when a veteran appealed the initial rating assigned for a disability, "staged" ratings could be assigned for separate periods of time based on the facts found. Fenderson, at 126. Based upon this distinction, the Court in Fenderson held that the RO had never properly provided the appellant with a statement of the case (SOC) concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson, at 132, emphasis in the original. The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for the issuance of a SOC. Id. As in Fenderson, the RO in this case identified the issue on appeal as entitlement to an increased disability evaluation for the appellant's service-connected degenerative disc disease of the lumbar spine, rather than as a disagreement with the original rating award. However, the RO's October 1994 SOC and April 1999 supplemental SOC provided the appellant with the appropriate, applicable law and regulations and an adequate discussion of the basis for the RO's assignment of an initial disability evaluation. Moreover, the appellant's various pleadings herein indicate an awareness that his appeal involves an initial disability rating. Consequently, the Board sees no prejudice to the appellant in recharacterizing the issue on appeal to properly reflect the appellant's disagreement with the initial disability evaluation assigned to his service-connected degenerative disc disease of the lumbar spine. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Factual Background The veteran served on active duty in the United States Navy from August 1969 to July 1973. The RO has retrieved the veteran's service medical records and they appear to be complete. The veteran's pre-induction examination, dated January 1969, noted essentially normal findings throughout. A review of the veteran's service medical records revealed multiple complaints of low back pain from March 1972 through June 1972. The veteran's discharge examination, dated June 1973, noted that the veteran's spine was normal. Private medical treatment records received from S. Miller, M.D., A. Collins, D.C., and the Crystal River Chiropractor Center, show intermittent treatment for low back pain since 1978. This treatment consisted primarily of manipulation and medication and had moderate success. A treatment report, dated May 1993, noted that the veteran "[i]s now running a restaurant . . . and works 12-16 hours a day 7 days a week." A November 1993 treatment record noted the veteran's complaints of back pain. The report also noted that the veteran's history of having "almost been in bed for two months, however he goes to work part of the time and has to stand up all the time." Physical examination revealed soreness in the low back and bilateral muscle spasms. A chiropractic treatment report, dated November 1993, noted that the veteran was "feeling some better," but was still experiencing back pain. In March 1994, a VA examination of the spine was conducted. The report of this examination noted that the veteran's back pain had required three months of bed rest back in December. The report also stated that the veteran "now has somewhat recovered but he lives with back pain with occasional mild radiation of the hips bilaterally. He denies leg weakness or numbness. No bowel or bladder complaints." Physical examination revealed that the veteran was somewhat overweight, with no postural abnormality and no fixed deformity. Range of motion testing of the lumbar spine revealed forward flexion to 50 degrees, backward extension to 0 degrees, and rotation to the right and left to 25 degrees. The report indicated that the veteran had moderate pain on motion in all directions. No muscle spasm was noted, and his neurological examination was normal. X-ray examination of the lumbosacral spine revealed moderate narrowing of the L4- L5 and L5-S1 disc spaces, with no compression fractures, subluxations, or focal destructive lesions. Diagnoses of lumbar spondylosis with evidence of disc disease at L4-L5 and L5-S1 and pain syndrome are noted. In March 1994, a VA examination of the stomach was conducted. The report of this examination, in pertinent part, noted that the veteran owns a restaurant "and apparently has long hours." A treatment summary report, dated December 1994, was submitted by S. Miller, M.D. In his report, Dr. Miller noted the veteran's complaints of back pain flair-ups about every 6 months. The report also stated that the veteran "has been working managing a restaurant at a motel here. He has to use a cane most of the time." In April 1995, a hearing was conducted before the RO. At the hearing, the veteran testified that his back went out every three to four months causing him to be bedridden anywhere from two weeks to three months. He complained of back pain and limitation of motion, which had resulted in a decrease in his working hours from 10 hours per day down to 5 or 6. He indicated that he had missed eight months of work in the last 15 months. He also noted that he had played golf only twice in the past year, and that both instances caused back pain for five days. The veteran's wife was also at the hearing and testified that the veteran's back pain requiresd complete bed rest. An undated statement submitted by the veteran after his hearing indicated that he was "on total bed rest" from September 20, 1993 to December 20, 1993; January 1, 1994 to February 25, 1994; June 1, 1994 to July 3, 1994; September 15, 1994 to September 20, 1994; and December 2, 1994 to December 7, 1994. Lay statements from the veteran's spouse, brother, friends and employees were also submitted and support the veteran's contention that he had missed work as a result of his low back disorder. Medical treatment reports, dated January 1994 through December 1998, were retrieved from the VA medical center in Tampa, Florida. A review of these records revealed treatment for a variety of conditions. A treatment report, dated July 1994, noted the veteran's complaints of low back pain. Physical examination revealed a good range of motion of the lower back. The report also noted that the veteran's motor strength was 5/5. The report concluded with a diagnosis of low back pain of musculoskeletal origin. A treatment report, dated January 1996, noted the veteran's history of back pain dating back to the 1970's. The report noted that the veteran "has 1 - 2 episodes/year, rarely does exercises." A treatment report, dated July 1996, noted the veteran's complaints that "back ache seems to relate to work - helping friend do some painting." The report noted that the veteran was "concerned about finances - not working full time." A diagnosis of situational depression was listed. A May 1997 treatment report noted the veteran's complaints of on and off back pain. The report noted that the veteran's weight was back up. A treatment report, dated June 1998, noted the veteran's complaints of on and off low back pain, now bothering him with radiculopathy. The report stated that "this happens 2-3x/year." The report also noted that the veteran is unhappy because he cannot bowl or play golf. Medical treatment reports, dated June 1998 through January 1999, were retrieved from the Suncoast Chiropractic and Neurological Clinic. A review of these treatment reports indicated that the veteran had injured his neck and upper back in an automobile accident in December 1997. An examination report, dated October 1998, noted the veteran's complaints of headaches, depression and pain in the neck, shoulders and middle back. Physical examination revealed pain and restriction in the veteran's neck, shoulder and bilateral upper and mid back. The examiner concluded that "[i]t is my medical opinion that [the veteran] has suffered permanent impairment of the cervical, upper, mid, and lower thoracic regions of the spine solely as a result of the injuries received in a motor vehicle accident of 12-9-97." The examiner also indicated that it is likely that this accident aggravated the veteran's pre-existing low back injury. A treatment summary report, dated January 1999, noted that the veteran ""expressed that he carries daily pain in his low back that was neither increased by the car accident nor decreased through his course of care." The report also indicated that the veteran's "low back was addressed during treatment only as it related to the middle and upper back, but never to specifically treat any injury that was sustained during the course of his military service." In January 1999, the veteran submitted a statement in support of his claim. In his statement, the veteran indicated that his back had been a significant problem ever since his discharge from the service. He also stated that "[i]n 1997 I started feeling good and helped my accountant refinish some house in the low income area of crystal. . . . I was gonna play golf on Wednesday dec 13th for the first time since 1995." He also noted, however, that he was involved in an automobile accident on his way to the golf course. In April 1999, a VA examination for the spine was conducted. The report of this examination stated: He continued with back problems on and off throughout the years and occasionally still will have what he terms throwing out his back and have to basically be incapacitated for some time. At this moment in time, sitting in the chair with the examiner, he says he has no pain in his low back or legs whatsoever. He says that this tends to come and go. Physical examination of the veteran's back revealed: Range of motion of his back is 60 degrees forward flexion, 15 degrees hyperextension, 20 degrees rotation to the left and to the right and 20 degrees of lateral bending both right and left. He is able to tandem walk on his heels and toes without much difficulty. He has 5/5 motor strength throughout his lower extremities, including hip flexors, quadriceps, hamstrings, ankle dorsiflexors and plantar flexors. He has 2+/4 bilateral symmetric reflexes, quadriceps, gastrocnemius. Sensation is grossly intact in all dermatomes, L5-S1. Babinski are downgoing toes. He has no clonus. Passive stretch testing was straight leg raise without abnormalities or significant findings. X-ray examination of the spine revealed an impression of mild degenerative changes with narrowing intervertebral disc spaces at L4-L5 and L5-S1. The examiner also commented: This examination today revealed no real radiculopathy type abnormality or nerve compression type lesion. He had normal strength, sensation and neurologic function in both extremities. He does have degenerative disk disease as evidenced on X-ray which has been seen before in previous studies. He can at times have some herniation of the degenerative disks which could cause acute symptoms. He does give an appropriate story and the examiner feels comfortable with his history and with his diagnosis. Is consistent that he can be quite incapacitated at times and then have other times where he is relatively non-disabled and symptom free. This again, is possibly related to injuries he had while in the military, but also can be age-related or activity related. In April 1999, a VA examination for muscles was conducted. The report of this examination noted the veteran's complaints of intermittent episodes of worsening back pain which had started to radiate down in the left buttocks region. The veteran denied any leg problems such as numbness or weakness. The veteran indicated that his back pain was aggravated after walking 50 to 100 feet. The report also noted that the veteran worked approximately three to four hours a day at his deli business and that he was also writing a book. Physical examination revealed: Cranial nerves II-XII are intact. Motor testing reveals 5/5 strength throughout with some mild give-way weakness in the left leg. There is no muscle atrophy or fasciculations noted. Cerebellar testing reveals normal finger-to-nose, heel-to- shin and gait. Sensory testing revealed intact pinprick, position, vibration and temperature sensations throughout. Reflexes were 2+ and symmetrical throughout with bilateral down-going toes. The examiner noted that the veteran's previous magnetic resonance imaging examination, performed in 1993, revealed "a herniated disk at the L4-5 level, but otherwise, his neurological examination objectively is relatively intact. I do not have any doubt that the patient probably does suffer from low back pain related to degenerative arthritic changes in that region." A VA examination for peripheral nerves was also conducted in April 1999. Physical examination revealed: The patient has approximately 45 degrees of flexion, which is roughly half-normal, however, he does have normal range of motion in all other modalities, including extension, lateral rotation and lateral bending. Strength of the lower extremities is 5/5 bilaterally including iliopsoas, quadriceps, hamstrings, dorsiflexion, plantar flexion, extensor hallucis longus. Sensation is intact to light touch and pinprick in the bilateral lower extremities. Reflexes are 2+ and symmetric at knees and ankles. The report concluded with an impression that the veteran likely has "myofascial low back pain, which is exacerbated by heavy activity, however, should minimally impair this veteran with activities of daily living. III. Analysis Review of the appellant's claim requires the Board to provide a written statement of the reasons or bases for its findings and conclusions on material issues of fact and law. 38 U.S.C.A. § 7104(d)(1) (West 1991). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. See Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Furthermore, as the Court has pointed out, the Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record or adequate quotation from recognized medical treatises. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, the Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) and cases cited therein. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service-connected disabilities are rated in accordance with a schedule of ratings, which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1998). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life, including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part or system in self- support of the individual. 38 C.F.R. § 4.10 (1998). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1998). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that 38 C.F.R. §§ 4.40, 4.45 and 4.59 were not subsumed into the diagnostic codes under which a veteran's disabilities are rated. Id.. Therefore, the Board has to consider the "functional loss" of a musculoskeletal disability under 38 C.F.R. § 4.40, separate from any consideration of the veteran's disability under the diagnostic codes. DeLuca, 8 Vet. App. at 206. Functional loss may occur as a result of weakness or pain on motion of the affected body part. 38 C.F.R. § 4.40 (1998). VA regulation 38 C.F.R. § 4.40 describes functional loss and indicates that: Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 these elements. The 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (1998). The factors involved in evaluating, and rating, disabilities of the joints include: weakness; fatigability; incoordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45 (1998). Specifically, § 4.45 states that: As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45 (1998). These factors do not specifically relate to muscle or nerve injuries independently of each other, but rather, refer to overall factors which must be considered when rating the veteran's joint injury. DeLuca, 8 Vet. App. at 206-07. VA regulations also specifically address painful motion and state: With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the 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 maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (1998). The veteran's service-connected degenerative disc disease of the lumbar spine is currently rated as 40 percent disabling under Diagnostic Code 5293, relating to intervertebral disc syndrome. In determining the proper evaluation for degenerative disc disease, consideration is given to the following: postoperative results of surgery, persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc(s), and the frequency and severity of attacks. The veteran's current disability rating of 40 percent contemplates a severe intervertebral disc syndrome with recurring attacks, with intermittent relief. 38 C.F.R. Part 4, § 4.71a-26, Diagnostic Code 5293 (1999). The next higher rating of 60 percent contemplates a pronounced intervertebral disc syndrome with persistent symptoms. The ratings criteria outlined in Diagnostic Code 5293, suggest that intervertebral disc syndrome is a disorder characterized by certain neurological symptoms and that attacks of these symptoms recur with greater or lesser frequency and that these attacks are punctuated by periods of intermittent relief of varying duration. See VA O.G.C. Prec. Op. 36-97 at 2 (Dec. 12, 1997) ("[Diagnostic Code] 5293, codified at 38 C.F.R. 4.71a, describes disability due to [Intervertebral Disc Syndrome] in terms of 'symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of diseased disc."'). The greater the frequency of the attacks and the lesser the duration of the intermittent periods of relief, the higher the rating. In addressing Diagnostic Code 5293, VA General Counsel has concluded that this rating section involves a component of limitation of range of motion, and therefore, a veteran could not receive a separate rating for intervertebral disc syndrome and also be rated under Diagnostic Code 5292, relating to limitation of motion of the spine, because to do so would constitute evaluation of an identical manifestation of the same disability under two different diagnoses. See 38 C.F.R. §§ 4.7, 4.14 (1999); VAOPGCPREC 36-97 (December 12, 1997). However, because Diagnostic Code 5293 does contain a limitation of motion component, the Board must apply 38 C.F.R. §§ 4.40, 4.45, and 4.59 and consider the claimant's functional loss and clearly explain what role the claimant's assertions of pain played in the rating decision. See VAOPGCPREC 9-98 (August 14, 1998); Smallwood v. Brown, 10 Vet. App. 93, 99 (1999). After a thorough review of the evidence of record, the Board concludes that the initial disability rating of 40 percent assigned to the veteran's service-connected degenerative disc disease of the lumbar spine is appropriate and that a higher initial disability evaluation is not warranted. The veteran's most recent VA examination for the spine, performed in April 1999, noted a range of motion of the spine consisting of forward flexion to 60 degrees, extension to 15 degrees, bilateral rotation to 20 degrees, and bilateral lateral bending to 20 degrees. The report noted that the veteran was able to tandem walk on his heels and toes without much difficulty and that he has 5/5 motor strength throughout his lower extremities. The report also noted that the veteran performed passive stretch testing and straight leg testing without abnormalities or significant findings. X-ray examination of the spine, performed in April 1999, revealed an impression of mild degenerative changes with narrowing intervertebral disc spaces at L4-L5 and L5-S1. The veteran's April 1999 VA examination for muscles noted that motor strength testing revealed 5/5 strength throughout with some mild give-away weakness. The report also indicated that no muscle atrophy or fasciculations were found. It also noted that sensory examination revealed intact pinprick, position, vibration and temperature sensation throughout. The veteran's April 1999 VA examination for peripheral nerves noted that "[s]ensation is intact to light touch and pinprick in the bilateral lower extremities. Reflexes are 2+ and symmetric at knees and ankles." A medical treatment report, dated July 1994, noted that the veteran's back exhibited a good range of motion and that the veteran's motor strength was 5/5. A treatment report, dated May 1997, noted that the veteran complained of off and on back pain. The veteran's previous VA examination of the spine, performed in March 1994, revealed only moderate pain on motion, with only "occasional mild radiation of the hips bilaterally." Physical examination at that time revealed no muscle spasm or neurological deficits in the lower extremities, and the veteran denied having any weakness or numbness in his legs. Accordingly, the veteran does not show any objective symptoms of a severe pronounced intervertebral disc syndrome, with persistent symptoms. In evaluating the appellant's claim, the Board also considers functional impairment of the lumbar spine due to pain, including the extent to which the veteran's pain has been shown to adversely affect the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (1998). Functional loss contemplates the inability 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 (1999). See also DeLuca, supra. The objective findings of record do not show any wasting or atrophy of the muscles which would provide evidence of any disuse of the lumbar spine. The report of the veteran's VA examination for muscles, performed in April 1999, noted that "[t]here is no muscle atrophy or fasciculations noted." The report also noted that sensory testing was normal and that "[r]eflexes were 2+ and symmetrical throughout. The report of the VA examination for peripheral nerves, conducted in April 1999, noted 5/5 strength in the veteran's lower extremities. The report also noted that range of motion testing of the lumbar spine revealed only 45 degrees of flexion, roughly half normal, and a "normal range of motion in all other modalities." Although the VA examiner commented that the veteran likely has "myofascial low back pain, which is exacerbated by heavy lifting," he also stated that this condition "should minimally impair this veteran with activities of daily living." In his prior VA examination for the spine, performed in March 1994, the veteran denied any leg weakness or numbness. A treatment report, dated July 1994, noted that the veteran's motor strength was 5/5 and that his lumbar spine exhibited a good range of motion. Although the veteran has indicted that the symptoms of his service-connected degenerative disc disease of the lumbar spine, including intermittent severe pain, have required occasional periods of total bed rest, there is no medical evidence of record prescribing prolonged periods of bed rest as treatment for this condition. Moreover, there is some evidence which contradicts the veteran's assertions of being on "total bed rest." Specifically, the veteran submitted an undated statement claiming that he was on total bed rest from September 20, 1993 to December 20, 1993. However, a medical treatment report from Dr. Miller, dated November 1993, noted that the veteran "manages a restaurant" and "goes to work part of the time." There is simply no showing of pronounced intervertebral disc syndrome with persistent symptoms. The report of a VA examination of the stomach performed in March 1993 noted that the veteran "owns a restaurant . . . and apparently works long hours." A January 1996 treatment report noted that the veteran's back "has 1 - 2 episodes/year." A treatment report, dated July 1996, noted that the veteran complained of back ache, which "seems to relate to work - helping friend do some painting." A May 1997 treatment report noted the veteran's complaints of on and off back pain. A letter from the veteran, dated January 1999, noted that "[i]n 1997 I started feeling good and helped my accountant refinish some house in the low income area of crystal." The letter also noted that his back felt well enough to arrange to play golf in December 1997. The report of his April 1999 VA examination for the spine noted that "[a]t this moment in time, sitting in the chair with the examiner, he says that he has no pain in his low back or legs whatsoever." The Board has considered potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this regard, a higher rating is not available under Diagnostic Codes 5295, relating to lumbosacral strain, or Diagnostic Code 5292, relating to limitation of motion of the lumbar spine. The Board therefore concludes that the initial disability evaluation currently assigned accurately reflects the degree of disability produced as a result of the appellant's lumbar spine pathology, including complaints intermittent severe back pain. The evidence for and against the claim is not in relative equipoise; therefore no reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b)(West 1991); 38 C.F.R. § 3.102 (1998). During the pendency of this appeal, the Board issued a remand, dated March 1998, instructing the RO, in pertinent part, to consider whether referral for an extraschedular evaluation was appropriate under 38 C.F.R. § 3.321(b)(1) (1999). Unfortunately, the RO has failed to document its consideration of this issue. In Stegall v. West, 11 Vet. App. 268, 271 (1999), the Court held "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand order." The Stegall case, however, involved an increased rating claim in which there was insufficient medical evidence to make a proper decision, despite a prior remand from the Board requesting a specific examination for this purpose. Accordingly, the Court in Stegall held that the Board had committed prejudicial error, in that specific case, by failing to ensure compliance with its remand order for a medical evaluation. Id. at 171. In this case, the RO has failed to document its consideration of whether referral for an extraschedular evaluation was appropriate under 38 C.F.R. § 3.321(b)(1) (1999). However, the Board concludes that a remand in this matter solely to complete this action is unwarranted. The RO's failure to document its consideration of this issue will not result in prejudice to the veteran. Bagwell v. Brown, 9 Vet. App. 337 (1998). The question of an extraschedular rating is a component of the veteran's claim for an increased rating, and the veteran and his representative have had a full opportunity to present the veteran's increased rating claim to the RO in this matter. See Id. As the Court concluded in Bagwell, the Board's consideration of an extraschedular rating claim in the first instance will not result in prejudice to the appellant. Id., at 339. Hence, the Board concludes that a remand is not required under the facts presented by this case. Consequently, the Board will consider factors relating to the assignment of an extraschedular rating. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (1990). "The governing norm in these exceptional cases 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." Id. In this regard, the schedular evaluations in this case are not inadequate. A higher rating, to 60 percent, is provided for certain manifestations of the service-connected degenerative disc disease of the lumbar spine, but the medical evidence reflects that those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture. It is not shown by the evidence that the appellant has required hospitalization in the remote or recent past for his low back disability. In addition, the Board has searched the record to ascertain the extent of the veteran's employment impairment due to back pain. A March 1993 treatment report noted that the veteran had been working 15 hours a day for 3 days. In May 1993, it was noted that the veteran was running a restaurant and working 12 - 16 hours a day 7 days a week. In October 1993, the veteran's private chiropractor noted bilateral, non-radiating, lumber pain, with moderate range of motion and moderate muscle spasm. A November 1993 treatment report noted that the veteran worked part of the time. That treatment report also noted only a mild to moderate muscle spasm. A January 1996 treatment report noted that the veteran has only one to two episodes of back pain per year. A treatment report, dated July 1996, noted that the veteran complained of back ache after "helping friend do some painting." A May 1997 treatment report noted that the veteran complained of on and off low back pain. A letter from the veteran, dated January 1999, the noted that "[i]n 1997 I started feeling good and helped my accountant refinish some house in the low income area of crystal." The letter also noted that he had arranged to play golf for the first time since 1995. The report of his April 1999 VA examination for the spine noted that "[a]t this moment in time, sitting in the chair with the examiner, he says that he has no pain in his low back or legs whatsoever." Thus, while it appears that the veteran has missed work due to back pain, the industrial impairment is not shown to so unusual as to render impractical the schedular rating criteria providing ratings from noncompensable, to 10 percent for a mild intervertebral disc syndrome, to 20 percent for a moderate syndrome with recurring attacks, to 40 percent for a severe syndrome with recurring attacks and intermittent relief to 60 percent when the syndrome is pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. The Board finds that this case does not warrant referral for consideration of an extraschedular evaluation. ORDER Entitlement to an initial disability evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals