Citation Nr: 0810164 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-08 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a disability rating higher than 20 percent for intervertebral disc syndrome (IVDS) of the lumbar spine. 2. Entitlement to a disability rating higher than 10 percent for neuropathy of the left lower extremity associated with the IVDS of the lumbar spine. 3. Entitlement to a disability rating higher than 10 percent for neuropathy of the right lower extremity associated with the IVDS of the lumbar spine. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from November 1990 to February 1991. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the veteran's claim for a rating higher than 20 percent for his low back disability. However, the RO granted service connection for neuropathy (loss of sensation) in his left lower extremity - associated with his low back disability, and assigned a separate 10 percent rating for that retroactively effective from the date of receipt of his claim for a higher rating for his low back disability. A more recent May 2006 RO decision during the pendency of the appeal also granted service connection for neuropathy (radicular symptoms) affecting his right lower extremity and assigned a separate 10 percent rating for that, too, retroactively effective as of March 7, 2006, the date of receipt of his claim for this additional disability. FINDINGS OF FACT 1. Under the revised criteria, the veteran's lumbar spine IVDS disability, even with consideration of his complaints of pain and other functional loss, does not cause forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. There also is no indication of incapacitating episodes having a total duration of at least 6 weeks during the past 12months. 2. The veteran's residual bilateral lower extremity radiculopathy is at most "mild". CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating higher than 20 percent for IVDS of the lumbar spine. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2007). 2. The criteria are not met for a disability rating higher than 10 percent for the associated neuropathy in the left lower extremity. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.124a, Diagnostic Code 8620 (2007). 3. The criteria are not met for a disability rating higher than 10 percent for the associated neuropathy in the right lower extremity. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.124a, Diagnostic Code 8620 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the veteran dated in December 2004, February 2005, and May 2006. These letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him of the information and evidence not of record that was necessary to substantiate his claims; (2) informing him of the information and evidence VA would provide; (3) informing him of the information and evidence he was expected to provide; and (4) requesting that he provide any evidence in his possession pertaining to his claims. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the May 2006 letter further advised the veteran of the disability rating and downstream effective date elements of his claims. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In Pelegrini II, the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Here, though, some of the VCAA notice mentioned was provided after the initial March 2005 AOJ decision. No matter, the Federal Circuit Court and Veterans Claims Court have since further clarified that VA can provide additional necessary notice subsequent to the initial AOJ adjudication, and then go back and readjudicate the claim, such that the essential fairness of the adjudication - as a whole, is unaffected because the appellant is still provided a meaningful opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (where the Federal Circuit Court held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, although the RO provided additional VCAA notice in May 2006, the RO did not subsequently go back and readjudicate the claim in a subsequent SSOC. So, in essence, based on the above caselaw, the timing defect in VCAA notice was not rectified. Regardless, the Court also recently held the failure of the claimant to submit additional evidence following proper notification may constitute a waiver of readjudication or render the error harmless. Medrano v. Nicholson, 21 Vet. App. 165, 173 (2007). Here, the veteran did not submit any additional evidence in response to the May 2006 VCAA Dingess notice letter. Therefore, the absence of a subsequent SSOC after this notice is not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication. Medrano, 21 Vet. App. at 173. It follows that a prejudicial error analysis by way of Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) for any timing error is simply not warranted here. Furthermore, to the extent it could be argued that there was a timing error, overall, the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims. Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post-decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). That is to say, the purpose of VCAA notice has not been frustrated. With respect to the increased rating claims, in Vazquez- Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008) the Court recently held that, at a minimum, a 38 U.S.C.A. § 5103(a) notice requires that the Secretary notify the claimant that, to substantiate such a claim, (1) the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0 percent to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Here, the general VCAA and Dingess notice letters of record are generally complaint with elements (1), (3), and (4) listed above in Vazquez-Flores. However, as to element (2), the Board acknowledges no VCAA notice letter of record addresses the specific criteria necessary for entitlement to a higher disability rating for the veteran's IVDS with associated neuropathy under Diagnostic Codes 5243 and 8620. In this regard, in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit Court held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1), concerning any element of a claim, is presumed prejudicial. Further, VA, not the veteran, has the burden of rebutting this presumption by showing the error was not prejudicial to the veteran in that it does not affect the essential fairness of the adjudication. To do this, VA can demonstrate that any defect was cured by actual knowledge on the part of the claimant (see Vazquez-Flores v. Peake, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim." In this vein, here, the veteran in his April 2006 substantive appeal (VA Form 9) discussed his specific symptomatology of difficulty with lumbar spine range of motion, with relevant pain and other functional loss, and loss of sensation in his left leg. Despite also mentioning previous lumbar spine criteria no longer applicable, he also showed knowledge of the currently applicable criteria. Specifically, he showed his knowledge that further functional loss and pain, which impacts his range of motion, could entitle him to a higher rating under Deluca if the VA physician had done further, repetitive testing. During the April 2003 and December 2004 VA examinations, the veteran related how his IVDS disability impacted his daily activities and occupation (as a farmer), and he reported experiencing neuropathy (numbness and pain) in both of his legs. He also mentioned experiencing weakness and numbness in his right leg when filing his claim for this additional disability in March 2006 on VA Form 21-4138. Therefore, any content defect was cured by his actual knowledge of the symptoms required for higher ratings for his IVDS and associated lower extremity neuropathy. Indeed, even his representative indicated in a March 2006 Statement of Accredited Representative in Appealed Case (in lieu of a VA Form 646) that the veteran's substantive appeal presented a "succinct summation" of his arguments. In short, the content error in the provision of the VCAA notice does not affect the essential fairness of the adjudication or otherwise frustrate the notice's intended purpose, and thus is not prejudicial. As for the duty to assist, the RO obtained the veteran's service medical records (SMRs), VA treatment records, and the reports of several VA examinations to determine the severity of his IVDS and associated lower extremity neuropathy. He has also submitted some private medical evidence and personal statements. Another VA examination is not required to decide his claims as other recent private and VA records simply do not reveal a worsening of his disability. In this regard, the record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2007). Neither the veteran nor his representative has stated that any additional evidence remains outstanding. So all things considered, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. Governing Laws and Regulations for Higher Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). While the veteran's entire history is considered when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A recent decision of the Court held that in determining the present level of a disability for any increased-evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from the time period one year before the claim was filed (in this case, November 2003) until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2007). The Board can also review earlier evidence to the extent it sheds light on the current level of severity of the disability. The net result of the decision in Hart is that VA adjudicators must consider whether a rating should be "staged" irrespective of whether the veteran is appealing a rating for an existing, established service-connected disability (e.g., here, the rating for his low back) or, instead, appealing ratings initially assigned following the grant of service connection (e.g., the additional, separate, ratings for his residual lower extremity neuropathy). See also Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). With any form of arthritis, painful motion is an important factor of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Higher Disability Ratings for the Lumbar Spine IVDS with Associated Bilateral Lower Extremity Neuropathy Historically, by way of an October 1992 rating decision, the veteran was granted service connection for aggravation of a pre-existing low back disability during his military service, specifically degenerative disc disease (DDD/IVDS). Records show he had low back surgery in 1989, prior to service, and additional low back surgery after service in 1993. His IVDS of the lumbar spine was originally evaluated as 10-percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (in effect prior to September 23, 2002). This 10 percent rating was effective from June 1, 1992. However, as of November 22, 1999, the rating for his IVDS was increased to 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003). Significantly, the criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). In this case, the veteran's claim for an increased rating was received in November 2004, subsequent to the final amendments. Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application. As alluded to above, the Board will determine whether he is entitled to a rating higher than 20 percent looking back to one year before his claim for an increased rating was received, that is, from November 2003. As of September 26, 2003, the amendments stipulate that the veteran's IVDS (preoperatively or postoperatively) is evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. According to the Formula for Rating IVDS Based on Incapacitating Episodes: A 20% rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40% rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60% rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note 2: If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003). As of September 26, 2003, IVDS can also be rated under the General Rating Formula for Diseases and Injuries of the Spine: 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 20% rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30% evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40% rating requires evidence forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50% evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100% rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Upon a complete review of the evidence of record, the Board finds no basis to award a disability rating greater than 20 percent for the veteran's IVDS of the lumbar spine under the most recent version of the rating criteria. 38 C.F.R. § 4.7. Specifically, as to orthopedic manifestations of his IVDS, the evidence of record does not demonstrate a higher 40 percent evaluation in that there is no evidence of forward flexion of the thoracolumbar spine 30 degrees or less and no evidence of favorable or unfavorable ankylosis of the thoracolumbar spine. Specifically, the range of motion in degrees recorded at VA examinations show, at worst, flexion limited to 50 degrees with consideration of pain and functional loss. See the report of his April 2003 VA examination (60 degrees of lumbar flexion limited by pain) and the report of his December 2004 VA examination (50 degrees lumbar flexion limited by pain). In addition, VA and private treatment records dated from 2003 to 2006 merely show complaints of low back pain and neuropathy, but do not provide evidence of a higher rating or a worsening of the disorder which would warrant further examination. As to functional loss due to his IVDS, the Board acknowledges that VA examinations of record, VA treatment records, and private medical evidence reveal functional loss factors of pain, stiffness, difficulty lifting, bending, sitting, or walking on uneven surfaces. The veteran reported no longer being able to hunt or fish. During periods of "flare-ups", his functional loss is greater. He reported in April 2003 that, on 10 occasions, he had to stop working due to his pain. With regard to his occupation as a farmer, his IVDS limited his ability to work full-time on his own farm, such that he could only do "light farming" in the employment of others. He has to take a lot of breaks when working. However, upon objective examination, there was no evidence of atrophy or weakness. He did not require the use of a back brace or cane. In addition, although pain limited his range of motion, the examiners accounted for this when determining his ranges of flexion discussed above. Importantly, the December 2004 VA examiner found that repetitive motion did not decrease the range of motion levels. All of the above factors of functional loss simply do not cause limitation of flexion to 30 degrees or less or anything remotely similar to ankylosis. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. As for the associated lower extremity neurological manifestations of his IVDS, the veteran has been awarded separate 10 percent ratings for this additional disability. Under Diagnostic Code 8620, mild incomplete neuritis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a (2007). When the involvement is only sensory, the rating should be for the mild or, at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2007). The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In this case, the above medical evidence shows the veteran experiences radicular pain, sensory loss, and numbness in his right and left lower extremities. According to his March 2006 claim, he also experiences weakness in his right lower extremity. Although consistently present, his bilateral lower extremity neuropathy is not characterized by foot drop, constant weakness, bowel or bladder impairment, muscle atrophy, loss of strength, or loss of reflexes. In fact, VA treatment records dated from 2003 to 2006 document normal neurological examinations with normal reflexes. Consequently, his radicular pain and some loss of sensation in his lower extremities are, at most, mild in degree, warranting only the separate 10 percent ratings currently assigned. 38 C.F.R. § 4.7. Combining under 38 C.F.R. § 4.25 (the combined rating table), with consideration of the 1.9 percent bilateral factor, the separate evaluations of the veteran's chronic orthopedic and neurologic manifestations of his IVDS (i.e., 20, 10, and 10 percent) yields a 40-percent combined rating for his IVDS and associated disabilities. As to incapacitating episodes of his IVDS, in order to warrant a higher rating, his level of incapacitating episodes must surpass his 40 percent combined orthopedic and neurological evaluations. That is, the evidence must show incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Here, irrespective of his assertions, there is no objective evidence of bed rest prescribed by a physician to support concluding the veteran has experienced any incapacitating episode. His VA and private treatment records do not refer to incapacitating episodes, certainly not of the frequency required for a higher rating. He has been prescribed Tylenol, physical therapy, and steroid injections. There was no mention of specifically prescribed bedrest by a physician. In summary, the Board finds that the preponderance of the evidence is against a disability rating greater than 20 percent under the most recent criteria for the veteran's lumbar spine IVDS. 38 C.F.R. § 4.3. In addition, the Board finds that the preponderance of the evidence is against disability ratings greater than 10 percent for his associated bilateral lower extremity neuropathy. Id. Hart & Fenderson Consideration There has never been occasion since the effective date of his awards when the veteran's low back and lower extremity disabilities have exceeded their current ratings. So there is no basis for "staging" his ratings. Extra-Schedular Consideration Finally, although it is possible to assign an extra-schedular evaluation, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether it is warranted. An extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) may be assigned when there is evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest the veteran is not adequately compensated by the regular rating schedule. See VAOPGCPREC 6-96. In this case, there is no evidence of any recent hospitalization associated with the disabilities in question, much less frequent hospitalization. Indeed, to the contrary, the veteran's evaluation and treatment has been primarily on an outpatient basis, not as an inpatient. In addition, although the Board acknowledges that his IVDS and lower extremity neuropathy disabilities somewhat limit his ability to work as a farmer, he still is able to engage in "light farming" for others, albeit with difficulty. Furthermore, he also has a significant cardiovascular disorder that he has received treatment for. The Board finds no evidence that his service- connected disabilities markedly interfere with his ability to work, meaning above and beyond that contemplated by his separate schedular ratings of 20, 10, and another 10 percent. See, too, 38 C.F.R. § 4.1 indicating that, generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. The standard for extra-schedular consideration is quite high. Sanchez-Benitez v. West, 13 Vet. App. 282, 287 (2000); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995) and VAOPGCPREC 6-96. ORDER The claim for a disability rating higher than 20 percent for IVDS and arthritis of the lumbar spine is denied. The claim for a disability rating higher than 10 percent for neuropathy of the left lower extremity associated with the IVDS of the lumbar spine is denied. The claim for a disability rating higher than 10 percent for neuropathy to the right lower extremity associated with the IVDS of the lumbar spine is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs