Citation Nr: 0703769 Decision Date: 02/06/07 Archive Date: 02/14/07 DOCKET NO. 04-20 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased rating for spondylolysis, L5-S1, with bilateral sciatica (low back disability), currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from July 1970 to February 1972 and from September 1974 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, that increased the evaluation of the veteran's low back disability to 20 percent, effective December 18, 2000. FINDINGS OF FACT 1. For the period from September 23, 2002, to May 3, 2004, the revised criteria that became effective September 23, 2002, are more favorable to the veteran's claim. 2. For the period since April 26, 2005, the criteria for evaluating spine disorders, that were in effect when the veteran filed his claim for an increased rating in September 2001, are more favorable to the veteran's claim. 3. Throughout the course of this appeal, the veteran's low back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 4. Throughout the course of this appeal, the veteran's low back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 5. Prior to September 23, 2002, the veteran's low back disability was manifested by no more than moderate intervertebral disc disease with recurring attacks. 6. Prior to September 23, 2002, even considering the veteran's pain and corresponding functional impairment, his low back disability was productive of no more slight limitation of motion of the lumbar spine. 7. Prior to September 23, 2002, the veteran's low back disability was not productive of muscle spasm on extreme forward bending and loss of lateral spine motion. 8. From September 23, 2002, to May 3, 2004, the veteran's low back disability was not manifested by more than moderate intervertebral disc disease with recurring attacks. 9. From September 23, 2002, to May 3, 2004, even considering the veteran's pain and corresponding functional impairment, his low back disability was not manifested by more than slight limitation of motion of the lumbar spine. 10. From September 23, 2002, to May 3, 2004, the veteran's low back disability was not productive of muscle spasm on extreme forward bending and loss of lateral spine motion. 11. At no time during the course of this appeal has the veteran's low back disability been productive of listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. 12. Since May 3, 2004, the veteran's low back disability has been manifested by severe intervertebral disc syndrome with recurring attacks and intermittent relief, and no more than moderate limitation of motion of the lumbar spine. 13. Resolving all reasonable doubt in the veteran's favor, since April 26, 2005, his low back disability has been manifested by moderate to moderately severe limitation of motion, and given his complains of experiencing constant pain that have been objectively demonstrated, it is at least as likely as not he has had functional loss due to pain resulting in additional impairment analogous severe limitation of motion of the lumbar spine. 14. The veteran's low back disability is not manifested by incapacitating episodes of intervertebral disc disease requiring bedrest prescribed by a physician. 15. The veteran's low back disability is not productive of bowel or bladder impairment. CONCLUSIONS OF LAW 1. Prior to September 23, 2002, the criteria for an evaluation in excess of 20 percent evaluation for low back disability were not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a; Diagnostic Codes 5285, 5286, 5292, 5293, 5295 (2001). 2. From September 23, 2002, and May 3, 2004, the criteria for a separate 10 percent evaluation for low back disability have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a; Diagnostic Codes 5292, 5293, 5295 (2002). 3. From September 23, 2002, and May 3, 2004, the criteria for a separate 10 percent evaluation for right-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2006). 4. From September 23, 2002, and May 3, 2004, the criteria for a separate 10 percent evaluation for left-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2006). 5. From May 3, 2004, to April 25, 2005, the criteria for single 40 percent evaluation for low back disability have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a; Diagnostic Codes 5235-5243, 5285, 5286, 5292, 5293, 5295 (2001, 2002, 2006). 6. With resolution of all reasonable doubt in the veteran's favor, since April 26, 2005, the criteria for a separate 40 percent evaluation for low back disability have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a; Diagnostic Codes 5235-5243, 5285, 5286, 5292, 5293, 5295 (2001, 2002, 2006). 7. Since April 26, 2005, the criteria for a separate 10 percent evaluation for right-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2006). 8. Since April 26, 2005, the criteria for a separate 10 percent evaluation for left-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. In a June 2002 letter, the RO explained to the veteran that he needed to submit medical evidence showing that his low back disability had "increased in severity." See Overton v. Nicholson, 20 Vet. App. 427, 440-41 (2006). In addition, pursuant to 38 C.F.R. § 3.159(b), the notification should also include the request that the claimant provide any evidence in his possession that pertains to the claim. In a June 2002 and August 2004 letters, VA informed him that he could file and/or identify medical and/or lay evidence in support of his claims, and essentially requested that he submit any evidence in his possession that could substantiate his claim. VCAA notice requirements also apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because service connection was granted for low back disability prior to the appeal, the first three Dingess elements were already; in any event, in a March 2006, VA advised him of these criteria. With respect to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request have been associated with the claims folder. 38 U.S.C.A. § 5103A. VA has associated with the claims folder the veteran's pertinent VA outpatient treatment records, dated since July 2000, and he was afforded VA spine examinations to determine the nature, extent, severity and manifestations of his low back disability in August 2002, May 2004 and in April and November 2005. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Therefore, the veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Background In a March 1998, the RO granted service connection for spondylolysis L5-S1 and assigned an initial noncompensable rating under hyphenated Diagnostic Code 5299-5292, effective November 3, 1997. In a June 1999 rating decision, the RO increased the evaluation of the disability to 10 percent, effective November 3, 1997. In September 2001, the veteran filed this claim for an increased rating for his low back disability. The RO associated VA outpatient treatment records, dated from July 2000 to November 2001, which reflect that the veteran was seen on numerous occasions for treatment of his low back disability. Entries dated prior to December 2000 show that he was seen for complaints of pain; however, beginning in December 2000, examiners noted that his low back disability was manifested by L-5 radiculopathy. An October 2001 examiner reported that the veteran had shooting pain radiating from his low back to his hips and feet, with complaints of numbness in his thigh and the dorsum of his right foot. In November 2001, an examiner indicated that the veteran's low back disability was worsening and that he was treating the condition with Vicodin, Motrin and Flexeril; the veteran also complained of having radiculopathy into both lower extremities. Range of motion studies revealed that the veteran had bilateral rotation and left lateral flexion within normal limits and had approximately 70 percent of range of motion on right lateral flexion; the examiner did not report the veteran's range of motion for forward flexion. Straight leg raising was within normal limits, but the veteran was weaker on the right side. In August 2002, he was afforded a formal VA spine examination. The veteran complained of having pain and bilateral radiculopathy that was worsened by physical activity. The examiner noted that the veteran treated the disability with Vicodin two to three times per day. She indicated that the veteran rose "very guardedly" from the examination room, "splinting his back." The examiner noted that he walked rigidly, "protecting his back." The examination revealed paravertebral muscle tenderness without spasm. The veteran had forward flexion to 80 degrees, which produced pain to his lower lumbar musculature. The veteran had back extension to 35 degrees, without pain. He had lateral bending bilaterally, and rotation, to 35 and 40 degrees, respectively, with only a minor pulling of the musculature. Sensation was intact to light touch, pressure, palpation and vibration, and straight leg raising was negative bilaterally. Based on her physical examination and December 2001 MRI findings, the examiner diagnosed the veteran as having chronic low back pain due to degenerative joint disease with neural foraminal stenosis explaining recurrent bilateral sciatica. She also diagnosed him as having grade I anterior spondylolisthesis of L5-S1. The examiner estimated that the veteran has a "20 percent DeLuca factor during flare-ups due to increased pain and reduced range of motion. Based on the above, in an October 2002 rating decision, the RO recharacterized the disability as spondylolysis L5-S1 with bilateral sciatica and increased his rating to 20 percent under hyphenated Diagnostic Code 5299-5293, effective December 18, 2000. The veteran appealed, asserting that his low back disability warranted a rating of at least 50 percent. On May 3, 2004, the veteran was again formally examined by VA. At the outset of the report, the examiner noted that the veteran's medication regimen had been changed and that the disability now required oxycodone and Vicodin for pain control. He also noted that the veteran changed careers due to his low back disability. The examiner indicated that physical activity aggravated the condition, and the veteran denied having bowel or bladder problems; however, he complained of having chronic low back pain that radiated to his lower extremities. The examiner reported that percussion and palpation revealed pain and radiculopathy. Range of motion studies revealed that he had forward flexion to 45 degrees, backward extension to 10 degrees, lateral flexion bilaterally to 45 degrees, and rotation bilaterally to 40 degrees. The diagnosis was degenerative joint disease, L5-S1. Although the examiner noted that the veteran grimaced while he walked, he did not otherwise comment on the impact of the DeLuca factors, i.e., additional functional loss due to pain, weakness, excess fatigability, or incoordination during periods of flare-up. In March and May 2004 statements, the veteran reported that due to increasing symptoms, his medication regimen had been changed and he was now treating the disorder with oxycodone. He maintained that his condition warranted an evaluation of 40 percent. VA outpatient treatment records, dated from January 2002 to October 2004, show the veteran was seen for complaints of low back pain and bilateral neuropathy. He was seen for treatment of his chronic low back pain, especially on physical activity, and which compromised his ability to engage in sexual relations. In October 2004, a physician indicated that the veteran had left paraspinous tenderness and mild spasm. Examiners consistently reported that the low back disability was not productive of either bowel or bladder impairment and the veteran was diagnosed as having spinal stenosis, mild degenerative changes, and a mild disc bulge at L5-S1. On April 26, 2005, the veteran was again formally evaluated by VA. The physician noted the veteran's complaints of low back pain that radiated to his lower extremities, with intermittent numbness in his thighs. The examiner noted that the veteran was going to school and was no longer working as a security guard because the position he had "ceased to exist" in April 2004. The physician reported that the veteran used a wooden cane to ambulate and that he had a moderate antalgic gait. He was able to toe and heel walk and had sensation to light touch in his feet and legs. He had forward flexion to 45 degrees, backward extension to 15 degrees, with pain, right lateral flexion to 20 degrees, with pain, lateral flexion bilaterally to 30 degrees, with pain. Straight leg raising was positive at 60 degrees. He had absent ankle jerk bilaterally. The physician noted that an EMG study performed five years earlier revealed right L2-L4 radiculopathy, and a May 2004 X- ray disclosed grade I spondylolisthesis with early degenerative joint disease of the posterior elements of at L5-S1. The examiner diagnosed the veteran as having lumbar contusion and strain with spondylolisthesis of the spine, mild degenerative joint disease of the lumbar spine, and sciatica. He added that during periods of exacerbation with excessive use, the veteran would experience a 20 percent worsening of his low back. The physician further stated that the veteran had incapacitating episodes approximately two days per week that persisted for 30 to 45 minutes. In response to the RO's May 2005 determination that his low back disability continued to warrant no more than a 20 percent rating, the veteran reported that he was currently taking Tramadol during the day and morphine sulfate and nortriptyline at night for pain relief. He added that these medications make it difficult for him to find employment. The veteran stated that although bed rest would likely help with reducing his low back symptomatology, given his family responsibilities he was not able to do so more than approximately an hour at a time. In October 2005 written argument, the veteran's representative maintained that his low back disability warranted separate compensable ratings under Diagnostic Code 8520 to compensate the veteran for his sciatic neuropathy. In November 2005, the veteran was most recently formally evaluated by VA. After discussing the veteran's pertinent medical history and noting that the veteran recently changed jobs so that he now was employed in a more sedentary position, the physician noted that the veteran complained of having low back pain "24/7," ranging from 3/10 on a good day to as severe as 15/10. She reported that the veteran had pain that radiated into his bilateral buttocks, calves, ankles and feet; the veteran stated it was worse on the right than the left side. The veteran described the pain as a hot burning sensation most of the time, although at times he stated the pain was sharp and "stabbing" in both legs. He denied having stiffness or spasm but complained of tenderness. The examiner observed that the veteran's current treatment regimen included Nortriptyline, 25 mg. at bed time, Tramadol, 100 mg., twice daily for pain, and rarely, Vicodin. She added that he formerly treated his disability with Vicodin, OxyContin and morphine sulfate. The veteran reported that he had flare-ups approximately once every two years, during which time he had no range of back motion. Due to the disability he stated he was unable to engage in numerous physical activities, including noting that he was unable to engage in intimate relations with his spouse during the prior 14 months due to his back pain. The examiner indicated that the veteran had no bowel or bladder symptomatology. The examination revealed that the veteran had a stiff gait, with tenderness in the lumbar spine. There was no muscle spasm, and range of motion studies revealed that, with pain, the veteran was able to accomplish forward flexion to 60 degrees, backward extension to 20 degrees, lateral flexion bilaterally to 35 degrees. The examiner indicated that the veteran had excruciating pain if he attempted forward flexion beyond that noted above. He had ankle jerk bilaterally and straight leg raising was positive at 65 degrees on the right, and was negative at 85 degrees on the left. The diagnosis was lumbar spondylolysis with spondylolisthesis of L5-S1, with bilateral sciatica. Subsequent to offering this impression, as to the DeLuca factors, the examiner opined that the veteran had a 20 degree loss of forward flexion, a 15 degree loss of backward extension, a 20 degree loss of bilateral flexion and rotation on repetitive use. She added that additional range of motion loss following pain was a 60 degree loss of forward flexion, a 30 degree loss of lateral flexion, a 35 degree loss of lateral rotation. The examiner also reported that the veteran had no degree of impairment due to his bilateral sciatica. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Effective September 23, 2002, VA revised the criteria for evaluating spinal disorders under Diagnostic Code 5293, intervertebral disc syndrome. 67 Fed. Reg. 54,345-54,349 (2002). VA again revised the criteria for evaluating spine disorders, effective September 26, 2003. See 68 Fed. Reg. 51,454-51,458 (2003). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 2002) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). As discussed above, the veteran's low back disability is currently rated as 20 percent disabling under former Diagnostic Code 5293. Under that code, a 20 percent evaluation required moderate intervertebral disc syndrome, with recurring attacks. A 40 percent evaluation contemplated severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief. Finally, a maximum evaluation of 60 percent evaluation required 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, and little intermittent relief. Former Diagnostic Code 5292 provided that a 10 percent evaluation was warranted for slight limitation of lumbar spine motion. A 20 percent rating required that the veteran had moderate limitation of motion of the lumbar spine; a maximum 40 percent evaluation required severe limitation of motion. Former Diagnostic Code 5295 provided that a 10 percent evaluation was warranted for characteristic pain on motion. A 20 percent evaluation required muscle spasm on extreme forward bending and loss of lateral spine motion, and a maximum evaluation of 40 percent was warranted when the disability was productive of severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space or some of the above with abnormal mobility on forced motion. Under an amendment to the rating schedule effective on September 23, 2002, the rating formula for evaluating intervertebral disc syndrome was changed. Under Diagnostic Code 5293, as amended, intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation. The revised criteria provide that a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. For purposes of evaluations under revised Diagnostic Code 5293 (now 5243, see below), an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. As noted above, effective September 26, 2003, VA again revised the criteria for rating spinal disorders. These revisions consist of a new rating formula encompassing such disabling symptoms as pain, ankylosis, limitation of motion, muscle spasm, and tenderness. These changes are listed under Diagnostic Codes 5235-5243, with Diagnostic Code 5243 now embodying the recently revised provisions of the former Diagnostic Code 5293 (for intervertebral disc syndrome). Effective September 26, 2003, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine is 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 evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2006). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2) (2006). In addition, with respect to the veteran's bilateral low back sciatic radiculopathy, under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation requires moderate incomplete paralysis of the sciatic nerve; a 40 percent evaluation requires moderately severe incomplete paralysis; a 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy; an 80 percent evaluation requires complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Prior to September 23, 2002 Based on a careful review of the lay and medical evidence, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent for the veteran's low back disability prior to September 23, 2002. In reaching this conclusion, the Board observes that the VA outpatient treatment records and the formal VA examination results show that the veteran's intervertebral disc disease was productive of moderate disability with recurring attacks that were treated by a regimen of pain medications. In this regard, the Board notes that the veteran's bilateral sciatic neuropathy supports the 20 percent criteria under former Diagnostic Code 5293. The Board concludes, however, that an evaluation in excess of 20 percent is not warranted during this period, and observes that although there was evidence of spasm, there was no indication of an absent ankle jerk or other neurological findings suggestive of severe intervertebral disc syndrome. Indeed, the August 2002 VA examination report reflects that the veteran did not have muscle spasm, sensation was intact bilaterally, and straight leg raising was negative bilaterally. As such, the Board finds that the veteran's low back disability does not more nearly approximate the criteria for a 40 percent rating under former Diagnostic Code 5293 for severe intervertebral disc disease with recurrent attacks with intermittent relief. With respect to a higher rating based on loss of range of motion of the lumbar spine, a November 2001 outpatient examiner reported range of motion findings showing only mild limitation of motion of the lumbar spine, and the August 2002 VA examiner reported range of motion findings that reflect mild limitation of motion, even when pain and the DeLuca factors are considered. Further, there is no evidence that the disability is manifested by listing of the whole spine to the opposite side, positive Goldthwatie's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Indeed, the veteran does not contend otherwise. Thus, a higher rating under former Diagnostic Code 5295 is not warranted. As such a higher rating under the regulations in effect prior to September 23, 2002, is not warranted. From September 23, 2002, to May 2, 2004 The VA outpatient treatment records dated during this period, as well as the August 2002 VA examination report, show that the veteran's intervertebral disc disease continued to be productive of bilateral sciatic neuropathy and no more than slight limitation of motion of the lumbar spine. As discussed above, the rating criteria effective September 23, 2002, provide that intervertebral disc disease is rated either based on the criteria set forth in Diagnostic Code 5243 (formerly Diagnostic Code 5293), or by combining under 38 C.F.R. § 4.25 separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Here, although the veteran's low back disability warrants a 20 percent evaluation under former Diagnostic Code 5293, it is more beneficial to the veteran to have his low back disability separately rated under the revised criteria by assigning independent evaluations for his orthopedic and neurologic manifestations. Because his low back disability was manifested by slight limitation of motion of the lumbar spine, the condition warrants a separate 10 percent rating under former Diagnostic Code 5292. Even considering his low back pain and functional impairment, the preponderance of the evidence is against a finding that the disability is productive of moderate limitation of motion. Similarly, under former Diagnostic Code 5295, because the condition was not manifested by muscle spasm on extreme forward bending and loss of lateral spine motion, the preponderance of the evidence is against entitlement to a separate evaluation in excess of 10 percent. The veteran's bilateral sciatic neuropathy, which supported the 20 percent rating assigned under former Diagnostic Code 5293, however, may now be separately rated as discrete neurologic manifestations of the service-connected disability. Here, given the lay and medical evidence consistently showing that the veteran's intervertebral disc disease is productive of bilateral lower extremity sciatic radiculopathy, the Board concludes that the evidence supports the veteran's entitlement to a separate 10 percent evaluations, and no more, under Diagnostic Code 8520, for disability comparable to mild incomplete paralysis of the sciatic nerve of his right and left lower extremities. The assignment of three separate 10 percent evaluations is consistent with 38 U.S.C.A. § 1155 and is favorable to the veteran. 38 C.F.R. § 4.26 provides that, when a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to the degree of disability. The bilateral factor is applied to such bilateral disabilities before other combinations are carried out, and the rating for such disabilities, including the bilateral factor, is treated as one disability for the purpose of arranging in order of severity and for all further combinations. Here, applying the bilateral factor to the veteran's sciatic neuropathy results not in two single 10 percent ratings but in one 21 percent rating because 10 percent combined with 10 percent, as per 38 C.F.R. § 4.25, yields a 19 percent rating, 10 percent of which is 1.9 percent, which when added to the 19 percent rating equals 20.9 percent, and is rounded up to 21 percent. The application of 38 C.F.R. § 4.25 then results in an overall 29 percent rating under the new criteria because when the 10 percent rating for limitation of motion of the lumbar spine is then added. As such, the assignment of three separate 10 percent ratings does not violate 38 U.S.C.A. § 1155 because it does not result in a rating reduction due to the application of new rating criteria. It also follows that 38 C.F.R. § 3.105(e) does not apply since there will be no reduction in the amount of compensation paid to the veteran. See VAOPGCPREC 71-91, 57 Fed. Reg. 2316 (1992). The Board has also considered whether a higher rating is available under any of the revised criteria. There is no indication in either the medical evidence or in statements written by the veteran that he suffered from incapacitating episodes having a total duration of at least four but less than six weeks per year. Thus, a higher evaluation under Diagnostic Code 5243 is not warranted. Further, and applying the revised criteria contained in the general rating formula for spine disabilities, the record does not show that the veteran has limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, and certainly, his thoracolumbar spine is not ankylosed. Thus, a higher rating was not warranted. Since May 3, 2004 Beginning on May 3, 2004, the Board finds that the veteran's low back disability is manifested by severe intervertebral disc disease with intermittent relief. Indeed, the Board observes that this finding is consistent with the veteran's contention in March and May 2004 correspondence regarding the timing of the worsening of his low back disability. The May 3, 2004, VA examiner reported that the veteran changed careers due to his low back disability, which he was treating with oxycodone. The VA outpatient treatment records notes show that the veteran continued to suffer from bilateral sciatic neuropathy, and had muscle spasm. Further, the May 2004 VA examiner reported that percussion and palpation revealed pain and radiculopathy. Thus, with resolution of all reasonable doubt in the veteran's favor, the Board finds that the disability warrants a 40 percent rating under former Diagnostic Code 5293. The Board further concludes, however, that a higher rating under this former code is not warranted as the veteran's ankle jerk was generally present and he neither complained of having recurrent muscle spasm, nor was muscle spasm generally found on either outpatient or formal evaluation. The Board observes that the lay and medical evidence dated during this period shows that the veteran continued to have essentially mild to moderate limitation of motion of the low back accompanied by pain. Considering the DeLuca factors, i.e., functional loss due to pain, weakness, excess fatigability, or incoordination during periods of flare-up, however, the Board finds that the veteran had overall moderate limitation of motion of the low back, which would warrant a separate 20 percent rating under former Diagnostic Code 5292. Because he did not have forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, however, an evaluation in excess of 20 percent for orthopedic manifestations under the new criteria are not met. Because the veteran is now being evaluated under the diagnostic code for intervertebral disc disease, separate 10 percent ratings are no longer permitted for his bilateral sciatic neuropathy. The application of the bilateral factor contained in 38 C.F.R. § 4.26 and the combined ratings table in 38 C.F.R. § 4.25 yields a 21 percent for his bilateral sciatic neuropathy, when added to 20 percent for limitation of motion results in a 37 percent combined rating, which is less than a single 40 percent evaluation. Thus, rating the veteran's low back disability under the former criteria is beneficial to the veteran. In reaching this determination, the Board observes that it is consistent with the veteran's contentions, as set forth in his March and May 2004 statements, where he reported that due to increasing symptoms, his medication regimen had been changed and he was now treating the disorder with oxycodone, and that his low back disability warranted an evaluation of 40 percent. Since April 26, 2005 Based on the results of the April and November 2005 VA examinations, and resolving all reasonable both in the veteran's favor, the Board concludes that the veteran's low back disability warrants a separate 40 percent rating under former Diagnostic Code 5292 for severe limitation of motion of the lumbar spine, as well as separate 10 percent evaluations under Diagnostic Code 8520 for bilateral sciatic neuropathy of the lower extremities. The Board further finds that the veteran's intervertebral disc syndrome warrants no more than a 40 percent rating under former Diagnostic Code 5293. In reaching these determinations, the Board notes the April 2005 VA physician noted that veteran used a wooden cane to ambulate and had a moderate antalgic gait. His forward flexion to 45 degrees, backward extension to 15 degrees, with pain, right lateral flexion to 20 degrees, with pain, lateral flexion bilaterally to 30 degrees, with pain. Although these range of motion findings are consistent with moderate limitation of motion, the examiner opined that during periods of exacerbation with excessive use, the veteran would experience a 20 percent worsening of his low back, which applying the DeLuca factors, results in disability that more nearly approximates severe limitation of motion under former Diagnostic Code 5292. This finding is also consistent with the evidence showing that the veteran was treating his low back disability with Tramadol during the day and morphine sulfate and nortriptyline at night for pain relief. In this regard, the Board finds it significant that various VA examiners objectively assessed his severe level of low back pain as reflected by the prescription of narcotic pain medications to treat this condition. In this regard, the Board observes that the November 2005 VA examiner reported that the veteran complained of having low back pain "24/7," and described his pain as severe as 15 on a 1-10 scale. The physician observed that the veteran's current treatment regimen included Nortriptyline, 25 mg. at bed time, Tramadol, 100 mg, twice daily for pain, and rarely, Vicodin. She added that he formerly treated his disability with Vicodin, OxyContin and morphine sulfate. The examination revealed that the veteran had a stiff gait, with tenderness in the lumbar spine, and although he was able to accomplish forward flexion to 60 degrees, backward extension to 20 degrees, lateral flexion bilaterally to 35 degrees, the examiner noted that he exhibited excruciating pain if he attempted forward flexion beyond that noted above. Significantly, the physician opined that the veteran had moderate to severe limitation of motion on physical activity, and had none during flare-ups. The Board again notes that, during this period the veteran's medication regimen included OxyContin and Vicodin, as well as morphine sulfate, and was subsequently amended to include Tramadol, an opiate (narcotic) analgesic. See http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a695011 .html#why Thus, the Board finds that the veteran's low back disability warrants the maximum 40 percent rating under former Diagnostic Code 5292, and thus a higher evaluation under former Diagnostic Code 5295 is not available. Further, the Board finds that the preponderance of the evidence is against entitlement to a 60 percent rating under former Diagnostic Code 5293. Although ankle jerk was absent on the April 2005 examination, the veteran's ankle jerk was generally present and he neither complained of having recurrent muscle spasm, nor was muscle spasm generally found on either outpatient or formal evaluation. Thus, given the absence of objective findings of muscle spasm on the April and November 2005 VA examinations, as well as the presence of his ankle jerk on the latter formal VA examination, the Board concludes that the disability picture most closely approximated that for severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief. There are no other former diagnostic codes under which the veteran's disability could be evaluated that would yield a higher rating. In the absence of evidence of, or disability comparable to, residuals of a vertebral fracture without cord involvement but with abnormal mobility requiring a neck brace (jury mast) (Diagnostic Code 5285), or ankylosis of the whole spine (Diagnostic Code 5286), there is no basis for evaluation under any other potentially applicable diagnostic code providing for a higher evaluation. Further, the Board notes that there is no basis for a separate evaluation for additional disability, such as demonstrable deformity of a vertebral body, which has not been revealed by the record. See Diagnostic Code 5285. With respect to the revised regulations, there is no indication that he has suffered from incapacitating episodes having a total duration of at least six weeks per year. As such, entitlement to an evaluation in excess of 40 percent under Diagnostic Code 5243 is not warranted. Further, given the range of thoracolumbar spine range of motion findings reported above, the does not have unfavorable ankylosis of the thoracolumbar spine, and thus a higher rating under the revised general rating criteria for the spine is not warranted. Because the medical evidence continues to show, however, that the veteran's low back disability is productive of bilateral sciatic neuropathy that radiates to his lower extremities, the Board concludes that the evidence supports entitlement to separate 10 percent evaluations, and no more, under Diagnostic Code 8520, for disability comparable to mild incomplete paralysis of the sciatic nerve of his right and left lower extremities. Extraschedular consideration The Board acknowledges that the veteran's low back disability is severely disabling and has caused him to change jobs. The Board finds, however, that the schedular criteria are not inadequate to evaluate the disability so as to warrant assignment of an evaluation higher than those granted in this decision on an extraschedular basis. In this regard, the Board notes that there is no showing that the disability under consideration has resulted in marked interference with employment. Indeed, although the veteran altered careers so that he is now employed in a sedentary position rather than working as a security guard, substantial interference with employment is contemplated in the current evaluations. In addition, there is no showing that the low back disability has necessitated frequent, let alone any periods of hospitalization, or that the disability has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Prior to September 23, 2002, an increased rating for spondylolysis, L5-S1, with bilateral sciatica, is denied. Subject to the law and regulations governing payment of monetary benefits, from September 23, 2002, to May 2, 2004, a separate 10 percent rating for spondylolysis, L5-S1, with bilateral sciatica, manifested by limitation of motion, is granted. Subject to the law and regulations governing payment of monetary benefits, from September 23, 2002, to May 2, 2004, a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the right lower extremity, is granted. Subject to the law and regulations governing payment of monetary benefits, from September 23, 2002, to May 2, 2004, a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the left lower extremity, is granted. Subject to the law and regulations governing payment of monetary benefits, from May 3, 2004, to April 25, 2005, a single 40 percent rating for spondylolysis, L5-S1, with bilateral sciatica, is granted. Subject to the law and regulations governing payment of monetary benefits, effective April 26, 2005, a separate 40 percent rating for spondylolysis, L5-S1, with bilateral sciatica, manifested by limitation of motion, is granted. Subject to the law and regulations governing payment of monetary benefits, effective April 26, 2005, a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the right lower extremity, is granted. Subject to the law and regulations governing payment of monetary benefits, effective April 26, 2005, a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the left lower extremity, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs