Citation Nr: 0827689 Decision Date: 08/15/08 Archive Date: 08/22/08 DOCKET NO. 97-25 070 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent prior to April 20, 2005 for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain. 2. Entitlement to an initial staged rating in excess of 40 percent from April 20, 2005 for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from July 1973 to April 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. A June 2006 Statement of the Case (SOC) included the issue of entitlement to an effective date prior to September 25, 1996 for the grant of service connection for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain. However, on the veteran's August 2006 Substantive Appeal the veteran stated that he did not wish to appeal that issue to the Board. Accordingly, this issue is not in appellate status before the Board. The Board notes that a July 2007 Supplemental Statement of the Case (SSOC) incorrectly indicated that the veteran has had a 40 percent rating in effect since April 30, 2002, instead of from April 20, 2005. The Board finds that this deficiency is harmless and results in no prejudice to the veteran. Furthermore, the arguments advanced by the veteran's attorney in an August 2007 statement indicate that the veteran's attorney had actual knowledge of the applicable time periods for the 20 and 40 percent initial ratings. FINDINGS OF FACT 1. For the period prior to September 23, 2002, the veteran's lumbar spine disability caused severe limitation of motion of the lumbar spine. 2. From September 23, 2002, until April 20, 2005, the veteran's lumbar spine disability caused severe limitation of motion of the lumbar spine, mild incomplete paralysis of the left sciatic nerve, and no disability of the right sciatic nerve. 3. From April 20, 2005, the veteran's lumbar spine disability has resulted in pronounced intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain from September 25, 1996 to September 23, 2002, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5292, 5293, 5295 (effective prior to September 23, 2002). 2. The criteria for an initial staged rating of 50 percent for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain from September 23, 2002 to April 20, 2005, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (effective prior to September 23, 2002); Diagnostic Codes 5292, 5293, 5295 (effective from September 26, 2003); Diagnostic Codes 5235-5243 (2007). 3. The criteria for an initial staged rating of 60 percent for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain from April 20, 2005, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (effective prior to September 23, 2002); Diagnostic Codes 5292, 5293, 5295 (effective from September 26, 2003); Diagnostic Codes 5235- 5243 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and implemented at 38 C.F.R. § 3.159 (2007), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a November 2005 letter to the veteran from the Agency of Original Jurisdiction (AOJ) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to an increased rating, and the division of responsibility between the veteran and VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), this letter essentially satisfied the notification requirements of the VCAA by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claim; (2) informing the veteran about the information and evidence VA would seek to provide; and (3) informing the veteran about the information and evidence he was expected to provide. The Board notes that a "fourth element" of the notice requirement, requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim, was recently removed from the language of 38 C.F.R. § 3.159(b). See 38 C.F.R. § 3.159, as amended by 73 Fed. Reg. 23353-23356 (Apr. 30, 2008). The Board acknowledges that complete VCAA notice was only provided to the veteran after the initial unfavorable decision in this case, rather than prior to the initial decision as typically required. However, in a case involving the timing of the VCAA notice, the United States Court of Appeals for Veterans Claims (Court) held that in such situations, the appellant has a right to a VCAA content- complying notice and proper subsequent VA process. Pelegrini v. Principi, 18 Vet. App. 112 (2004). After the November 2005 VCAA-compliant letter was issued to the veteran he was afforded an opportunity to respond, and the AOJ then subsequently reviewed the claim and issued a Statement of the Case to the veteran in June 2006 and a Supplemental Statement of the Case to the veteran in July 2007. Under these circumstances, the Board finds that any defect in the VCAA notice has been cured and thus resulted in no prejudice to the veteran. Pelegrini v. Principi, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Also, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements apply to all five elements of a service connection claim, including the disability rating and effective date of the award. The veteran was provided this notice in June 2006 and February 2007 letters. As such, any notice deficiencies related to the rating or effective date were subsequently remedied. Thus, the Board finds no prejudice to the veteran in processing the issuance of a final decision. See Bernard v. Brown. That notwithstanding, it is well to observe that service connection for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain has been established and initial ratings have been assigned. The veteran has been awarded the benefits sought, and his claim has been substantiated. As such, the veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007) (citing Dingess v. Nicholson, 19 Vet. App. at 491). Thus, the purpose for which such notice was intended has been fulfilled, and section 5103(a) notice is no longer required as to such matters. See Dingess, 19 Vet. App. at 490-491. Similarly, during the pendency of this appeal, regulatory changes amended 38 C.F.R. § 3.159(b), which provide that VA has no duty provide section 5103 notice upon the receipt of a Notice of Disagreement. 38 C.F.R. § 3.159(b), as amended by 73 Fed. Reg. 23353-23356 (2008) (to be codified at 38 C.F.R. § 3.159(b)(3) and applicable to all claims for benefits pending before VA on or filed after May 20, 2008). In this context, after awarding the veteran service connection for his chronic lumbosacral strain with hip, thigh, buttocks, and calf pain and assigning initial disability ratings, the veteran filed a notice of disagreement contesting the initial rating determination. The RO furnished the veteran a statement of the case that addressed the initial ratings assigned including notice of the criteria for higher ratings for this condition, and provided the veteran with further opportunity to identify and submit additional information and/or argument, which the veteran has done by perfecting his appeal. See 38 U.S.C.A. §§ 5104(a), 7105, 5103A. Therefore, under these circumstances, VA also fulfilled its obligation to advise and assist the veteran throughout the remainder of the administrative appeals process, and similarly accorded the veteran and his representative a fair opportunity to prosecute the current appeal. See Dunlap and Dingess, both supra. VA also has a duty under the VCAA to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A. In this regard, the veteran's service treatment records, VA treatment records, and private medical records have been obtained and the veteran has been provided VA medical examinations. Additionally, written statements from the veteran and his representative have been received. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The Board therefore determines that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. II. Legal criteria Since the claim for a higher rating is an initial rating claim, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the criteria for rating disabilities of the spine. Effective September 23, 2002, VA revised the criteria for rating intervertebral disc syndrome, prior to the date on which the instant claim was filed. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for rating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Disabilities and injuries of the spine are currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. The revised provisions of Diagnostic Code 5293 were also redesignated as Diagnostic Code 5243 for intervertebral disc syndrome, effective September 26, 2003. The Board is required to consider the claim in light of both the former and revised schedular criteria to determine whether a higher initial disability rating is warranted for the veteran's lumbar spine disability. The General Counsel for VA has determined that the amended rating criteria, if favorable to the claim, can be applied only for the periods from and after the effective date of the regulatory change. However, the veteran does get the benefit of having both the former and revised regulations considered for the period after the change was made. See VAOPGCPREC 3-2000. That guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. See 38 U.S.C.A. § 5110(g) (West 2002). Under former DC 5292, in effect prior to September 26, 2003, for limitation of motion of the lumbar spine, a 10 percent evaluation requires slight limitation of motion, a 20 percent evaluation requires moderate limitation of motion, and a 40 percent evaluation requires severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (2003). Under the revised criteria, effective September 23, 2002, intervertebral disc syndrome (IVDS) is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate evaluations of chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. See 38 C.F.R. § 4,71a, DC 5293, as amended by 67 Fed. Reg. 54345-54349 (Aug. 22, 2002). A 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A maximum 60 percent rating is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note 1 provides that, for the purposes of evaluations under DC 5293, 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. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Compare, 67 Fed. Reg. 54345 (Aug. 22, 2002), effective September 23, 2002, and codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 68 Fed. Reg. 51454 (Aug. 27, 2003), effective September 26, 2003, (Diagnostic Code 5293 redesignated as 5243 and codified at 38 C.F.R. § 4,71a). Note 2 provides that, when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, DC 5293 (September 23, 2002). Under former DC 5295, in effect prior to September 26, 2003, lumbosacral strain is rated as 10 percent disabling when there is characteristic pain on motion and as 20 percent disabling when there is muscle spasm on extreme forward bending, and unilateral loss of lateral spine motion in the standing position. A 40 percent rating requires that the lumbosacral strain be severe, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral spine motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2003). Under the revised criteria, effective September 26, 2003, a general rating formula for diseases and injuries of the spine provides that, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. 38 C.F.R. § 4.71a, DCs 5235-5243 (2007). A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 rating is warranted for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235-5243 (2007). Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 (2007). In addition, 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, 204-07 (1995). III. History The June 2005 rating decision on appeal granted the veteran service connection for chronic lumbosacral strain with hip, thigh, buttocks and calf pain, effective from September 25, 1996. The veteran was assigned a 10 percent rating for this disability effective from September 25, 1996 and a 20 percent rating effective from April 30, 2002. In June 2006, the RO reevaluated the veteran's lumbosacral strain disability ratings. The RO assigned the veteran a 20 percent initial rating from September 25, 1996 to April 20, 2005, and an initial staged rating of 40 percent from April 20, 2005. A January 1997 private physical therapy note indicates that the veteran had 30 degrees of trunk flexion with complaints of pain in the buttocks, left lower extremity and low back. He had 12 degrees of extension with midscapular pain. He had right side bend of 26 degrees and left side bend of 30 degrees with complaints of ipsilateral low back pain. A May 1999 private nerve conduction study revealed findings that were suggestive of mild, chronic mid lumbar neuropathy of mild degree, left greater than right. There was no evidence of acute denervation or peripheral nerve palsy. A July 1999 physical therapy note indicates that the veteran had 22 degrees of forward flexion, 8 degrees of extension, left side bending of 10 degrees right side bending of 10 degrees, two degrees of rotation to the right and two degrees of rotation to the left. Also in July 1999 he received an assessment of chronic low back and lower extremity pain secondary mostly to degenerative disc disease at L5-S1, with a left piriformis muscle syndrome, bilateral sacroiliitis and deconditioning. In August 1999 it was noted that the veteran's flexibility had improved from 22 degrees to 65 degrees of flexion, 12 degrees of extension, 15 degrees of left side bending, 20 degrees of right side bending, left rotation of four degrees and right rotation of six degrees. A September 1999 statement from a physician at a pain management center notes that the veteran had low back and left lower extremity pain and the diagnosis was lumbar radiculitis secondary to a mild disc bulge at L5-S1. A July 1997 VA outpatient record notes that the veteran had low back pain and paralumbar muscle spasms. On VA examination in April 2002, the veteran reported dull aching pain centered in his low back on most days and reported numb pain that went to his left buttock down to the side of his left thigh and to the lateral side of his left calf. He had no symptoms of weakness, sensory, or motor symptoms in the feet. Examination revealed the veteran to have no paravertebral tenderness, but some tenseness of the left and right paravertebral lower lumbar. He had lumbar extension to 10 degrees with discomfort. Forward flexion was slowly to 40 degrees and the veteran reported pain. He had sitting flexion at the waist to 20 degrees on the left and 30 degrees on the right. He had 10 degrees of left rotation and 20 degrees right rotation and then he had pain. The veteran had slight pain on straight leg raising, of the left lower extremity. Sensation was intact and there was no weakness or sensory deficit. The diagnoses included lumbar intervertebral degenerative disc disease with left radiculopathy, symptomatic treatment. The veteran was afforded another VA examination in April 2005. He complained of entire spine pain from the neck all the way down and including the lower extremities. He reported that his upper and lower back were weak and stiff. The veteran complained of fatigability and lack of endurance. The veteran reported that he took pain medication, that he had injections, that he used a TENS unit, that he used a cane, and that he wore a brace for treatment of his back. The veteran had tenderness in the paravertebral muscle area. On movement of the back, straight leg raising could not be raised due to pain in the right leg and the left leg. There was no backward flexion due to pain. There was no left lateral or right lateral motion due to pain. The veteran's forward flexion was limited to 10 degrees to the point of pain. Right and left rotation were zero degrees. There were no reflexes in the patella or Achilles tendons bilaterally. Repetitive motion did not change the range of motion. Musculature of the back appeared to be strong and possibly spasming. The examiner noted that the veteran was incapacitated by his back disability but that he tried to do a little yard work and a little housework when his physical condition would permit. The diagnoses included severe limitation of motion and pain of the cervical spine, severe pain of the upper back, severe pain of the lumbosacral spine with impingement of the neuro foramina at L4-L5 bilaterally, and sciatic neuropathy on both the left and right. IV. Analysis Prior to September 23, 2002 Based on the foregoing, the Board concludes that a 40 percent rating is warranted for the time period prior to September 23, 2002, under former DC 5292, due to the medical evidence showing forward flexion restricted to as much as 22 degrees. Forward flexion was restricted to 30 degrees in January 1997 and to 22 degrees in July 1999. This shows severe limitation of motion of the lumbar spine. The Board recognizes that the veteran was shown to have 65 degrees of flexion on one occasion in August 1999 and 40 degrees of flexion on VA examination in April 2002. However, considering the numerous medical records dated between September 25, 1996 and September 23, 2002 showing complaints and treatment for low back pain, and considering all doubt in favor of the veteran, the Board finds that during this time period the veteran more often met the criteria for severe limitation of motion of the lumbar spine. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995), Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that a 40 percent rating was the maximum rating available for limitation of motion of the spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5292. The Board has considered whether the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 may provide a basis for a rating in excess of 40 percent for limitation of motion. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. The Board further notes that the veteran was not shown to have residuals of a fractured vertebra, unfavorable ankylosis of the lumbar spine, or pronounced IVDS prior to September 23, 2002 and was thus not entitled to a rating in excess of 40 percent under any of the applicable diagnostic codes in effect at that time. See 38 C.F.R. § 4.71a, DCs 5285, 5289, 5293 (effective prior to September 23, 2002). Accordingly, for the time period from September 25, 1996 to September 23, 2002 the veteran met the criteria for an increased initial rating of 40 percent, but no higher. From September 23, 2002 From September 23, 2002 until a subsequent amendment on September 26, 2003, Diagnostic Code 5293 stated that intervertebral disc syndrome (preoperatively or postoperatively) was to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The Board notes that the record during this time period did not show that the veteran had incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. Consequently the veteran did not meet the criteria for a 60 percent rating during this time period based on incapacitating episodes. Considering the veteran's orthopedic and neurological manifestations, during this time period, it has been determined that the veteran had severe limitation of motion of the lumbar spine and was entitled to a 40 percent rating for limitation of motion of the lumbar spine. The neurological codes pertaining to the sciatic nerve provide ratings for disability of the sciatic nerve (or neuritis or neuralgia) when there is evidence of mild incomplete paralysis (10 percent), moderate incomplete paralysis (20 percent), moderately severe incomplete paralysis (40 percent), severe incomplete paralysis with marked muscular atrophy (60 percent),or complete paralysis when the foot dangles and drops, has no active movement possible of muscles below the knee, and with flexion of knee weakened or (very rarely) lost (80 percent). See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720 (2007). The Board finds that the veteran met the criteria for a 10 percent rating (mild incomplete paralysis) of the left lower extremity. The April 2002 VA examination indicated that the veteran had subjective complaints of numb pain to his left buttock down the side of his left thigh and to the lateral side of his left calf, and that he had slight pain on straight leg raising of the left lower extremity. However, the veteran did not meet the criteria for a rating in excess of 10 percent for his neurological disability of the left lower extremity. The examination revealed that sensation was intact and that there was no weakness or sensory deficit in the left lower extremity. The Board also notes that the April 2002 VA examination revealed that the veteran had no neurological deficit in the right lower extremity. Consequently, the veteran did not meet the criteria for a compensable rating based on neurological deficit of the right lower extremity. With orthopedic manifestations equivalent to 40 percent, and neurological manifestations equivalent to at most 10 percent in left lower extremity and zero percent in the right lower extremity, the Board finds combination of these disabilities ratings under 38 C.F.R. § 4.25 would result in a 50 percent disability rating. Accordingly, the veteran is entitled to an initial staged rating of 50 percent by combining the orthopedic and neurological manifestations of the veteran's lumbosacral radiculopathy disability from September 23, 2002. Other old criteria in effect prior September 26, 2003 amendments permitted schedular ratings of 60 percent or higher for pronounced IVDS, for ankylosis of the spine, or for fracture of a vertebrae. However, none of the medical evidence has shown the veteran to have ankylosis of the spine or a fracture of a vertebra. Additionally, the Board notes that the medical evidence prior to April 20, 2005 has not shown that the veteran met the criteria for a 60 percent under former DC 5293. A 60 percent rating is appropriate under former DC 5293 when there is 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 site of diseased disc with little intermittent relief. Such symptoms were not shown prior to April 20, 2005. From April 20, 2005 Considering all doubt in favor of the veteran, the Board finds that the veteran has met the criteria for a 60 percent under former DC 5293 from April 20, 2005. The April 20, 2005 VA examination revealed impingement of the neuro foramina at L4-5 bilaterally resulting in bilateral sciatic neuropathy resulting in an inability to do straight leg raising, resulting in pain and numbness down both lower extremities, resulting in absent ankle jerks, and apparent muscle spasms. The examiner opined that the veteran's symptoms occurred on a daily basis and that they were incapacitating in nature. Accordingly, an initial staged rating of 60 percent is warranted under former DC 5293 from April 20, 2005. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Under the revised criteria, effective September 26, 2003, the general rating formula for diseases and injuries of the spine provides for a rating in excess of 50 percent if the veteran had incapacitating episodes of IVDS having a total duration of at least six weeks during the past 12 months. As noted above, the veteran was not shown to have such prior to April 20, 2005. With regards to a rating in excess of 60 percent, under the current criteria such is only available if there is unfavorable ankylosis of the entire spine, which has not been shown. Accordingly the veteran is not entitled to higher initial staged ratings than assigned above under the current criteria, effective September 26, 2003. In summary, for the reasons and bases expressed above, the Board concludes that the veteran is entitled to an initial rating of 40 percent from September 25, 1996, is entitled to an initial staged rating of 50 percent rating from September 23, 2002, and is entitled to an initial staged rating of 60 percent from April 20, 2005. ORDER An initial rating of 40 percent for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain is granted from September 25, 1996 to September 23, 2002, subject to the law and regulations regarding the award of monetary benefits. An initial staged rating of 50 percent for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain is granted from September 23, 2002 to April 20, 2005, subject to the law and regulations regarding the award of monetary benefits. An initial staged rating of 60 percent for chronic lumbosacral strain with hip, thigh, buttocks, and calf pain is granted from April 20, 2005, subject to the law and regulations regarding the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs