Citation Nr: 1536438 Decision Date: 08/26/15 Archive Date: 09/04/15 DOCKET NO. 09-19 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating for spondylolisthesis of L5-Sl with degenerative disc disease of the lumbar spine (lumbar spine disability), in excess of 40 percent prior to May 27, 2010, and in excess of 60 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from November 1962 to November 1965. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). In a May 2014 rating decision, the RO granted an increased 60 percent rating effective May 27, 2010. The RO also granted entitlement to a total disability rating based service-connected disabilities (TDIU) effective May 27, 2010. The Veteran did not appeal the effective date for the grant of a TDIU, therefore, that issue is not on appeal before the Board. The Veteran was scheduled for a July 2015 Board videoconference hearing. The record indicates that the Veteran did not attend the scheduled hearing; therefore, his hearing request has been withdrawn. FINDINGS OF FACT 1. For the entire rating period prior to May 27, 2010, the Veteran's lumbar spine disability did not approximate unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 2. For the entire rating period prior to May 27, 2010, the Veteran had chronic symptoms of radiating pain and numbness in the right lower extremity. 3. For the entire rating period prior to May 27, 2010, the Veteran did not have a diagnosed left lower extremity neurological disorder secondary to his lumbar spine disability. 4. For the entire rating period prior to May 27, 2010, the Veteran's lumbar spine disability has not resulted in incapacitating episodes, requiring bedrest prescribed by a physician, having a total duration of at least six weeks or more during any 12 month period. 5. For the entire rating period from May 27, 2010, an evaluation of the Veteran's lumbar spine disability under the general rating formula for disease and injuries of the spine would result in a higher evaluation than a rating based on incapacitating episodes under the formula for rating intervertebral disc syndrome when all orthopedic and neurological manifestations of the lumbar spine disability are combined under 38 C.F.R. § 4.25. 6. For the entire rating period from May 27, 2010, the Veteran's lumbar spine disability did not approximate unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 7. For the entire rating period from to May 27, 2010, the Veteran had right and left lower extremity radiculopathy which was no more than moderate in degree. CONCLUSIONS OF LAW 1. Prior to May 27, 2010, the criteria for an increased rating in excess of 40 percent rating for spondylolisthesis of L5-Sl with degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 20 14); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Plate V, 4.71, Diagnostic Code 5242 (2015). 2. Prior to May 27, 2010, the criteria for a separate 10 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 20 14); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2015). 3. From May 27, 2010, the criteria for an increased rating in excess of 40 percent for spondylolisthesis of L5-Sl with degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Plate V, 4.71, Diagnostic Code 5242 (2015). 4. From May 27, 2010, the criteria for a separate 20 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 20 14); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2015). 5. From May 27, 2010, the criteria for a separate 20 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 20 14); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). A January 2009 VCAA notice letter provided adequate notice to the Veteran addressing his increased rating claim. The Board finds that subsequent readjudication of the claim in supplemental statements of the case and a May 2014 rating decision cured any notice timing deficiency. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes VA and private treatment records, VA examinations, and the Veteran's statements. The Veteran was afforded VA authorized examinations to evaluate his lumbar spine disability in April 2007 and September 2012. The Board finds that the examinations obtained are adequate because they were performed by medical professionals, were based on a review of the record and history and symptomatology from the Veteran, and a thorough examination of the Veteran, and adequately address the relevant rating criteria in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Court has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The RO granted an increased rating for the Veteran's lumbar spine disability during the pendency of the appeal, creating a staged rating. The Board finds that a staged rating is appropriate for the evaluation of lumbar spine spondylolisthesis with degenerative disc disease. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. However, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x- ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. The Veteran is in receipt of a 40 percent rating for his lumbar spine disability prior to May 27, 2010 under Diagnostic Code 5242, and a 60 percent rating from May 27, 2010 under Code 5243. In light of the presence of disc disease, the provisions of Diagnostic Code 5242 are applicable. The schedular criteria for the rating of spine disabilities evaluates degenerative arthritis of the spine (Diagnostic Code 5242) based on limitation of motion under the General Rating Formula for Disease and Injuries of the Spine. Under the General Formula, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a. 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. The General Rating Formula for Diseases and Injuries of the Spine allows for separate evaluations for chronic orthopedic and neurologic manifestations. See 38 C.F.R. § 4.71a Note (1). Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2015). In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2015). Under the applicable criteria, intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the general rating for disease and injuries of the spine (outlined above) or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides the following Notes: Note (1): 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. 38 C.F.R. § 4.71a. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2015). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Rating Analysis for a Lumbar Spine Disability Prior to May 27, 2010 After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period prior to May 27, 2010, the Veteran's lumbar spine disability did not approximate unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The Board finds that for the entire rating period prior to May 27, 2010, an increased rating in excess of 40 percent rating is not warranted for lumbar spine degenerative disc disease under Diagnostic Code 5242. The next higher 50 percent evaluation is assigned under Diagnostic Code 5242 for unfavorable ankylosis of the entire thoracolumbar spine. Prior to May 27, 2010, the Board finds that even with consideration of functional limitations due to pain, the Veteran's lumbar spine disability does not approximate unfavorable ankylosis of the entire thoracolumbar spine to warrant a higher rating. Note (5) to 38 C.F.R. § 4.71a defines unfavorable ankylosis as a condition in which the entire thoracolumbar spine is fixed in flexion or extension, where 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 neurological symptoms due to nerve root stretching. The April 2004 VA authorized examination shows that the Veteran had at least 45 degrees forward flexion in the thoracolumbar spine, and while range of motion was accompanied by pain, there was no additional loss of motion during repetitive tesing. The Board finds that while range of motion in the spine is limited due to pain, prior to May 27, 2010 the spine is not shown to be in fixation, and the Veteran is not shown to exhibit other factors associated with unfavorable ankylosis noted in Note (5) to 38 C.F.R. § 4.71a. The Board finds that even with consideration of functional loss due to pain, the Veteran had active range of motion in the thoracolumbar spine such that his disability did not approximate unfavorable ankylosis of the entire thoracolumbar spine and does not approximate a higher 50 percent rating under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. The Board has considered whether a separate rating is warranted based on neurologic manifestations the Veteran's lumbar spine disability. The General Rating Formula of Diseases and Injuries of the Spine allows for separate evaluation of any associated objective neurologic abnormalities. 38 C.F.R. § 4.71a, Note (1). Diagnostic Code 8620 provides disability ratings of 10, 20, and 40 percent, respectively, for mild, moderate, and moderately severe neuritis of the sciatic nerve. 38 C.F.R. § 4.124a. For the entire rating period prior to May 27, 2010, the Board finds that a separate 10 percent rating is warranted for right lower extremity radiculopathy secondary to the Veteran's lumbar spine disability. VA treatment records dated from 2006 to 2009 show that the Veteran consistently reported radicular symptoms in the right lower extremity. A January 2007 orthopedic treatment noted right lower extremity weakness and identified a diagnosis of lumbar stenosis, spondylosis/ spondylolisthesis with radicular symptoms. During an April 2007 VA authorized examination, the Veteran reported radiation of pain to the right leg. A neurological examination of the bilateral lower extremities, however, shows that motor function, sensory function, and reflexes were within normal limits during examination. A July 2008 VA EMG consult shows that the Veteran was referred to rule out lumbosacral radiculopathy. Light touch sensation was intact in the lower extremities. An EMG evaluation was attempted, but the Veteran was unable to tolerate the examination. Accordingly, the examiner was unable to rule out radiculopathy. Private treatment records dated from January 2010 to May 2010 note complaints of numbness and weakness in the legs. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that prior to May 27, 2010, a separate 10 percent evaluation is warranted for lumbar radiculopathy in the right lower extremity under Diagnostic Code 8620 based on chronic symptoms of radiating pain and numbness in the right lower extremity. The Board finds that prior to May 27, 2010, neurological symptoms in the right lower extremity were not shown to be more than mild in degree as neurological testing during the April 2007 VA authorized examination was normal. For the entire rating period prior to May 27, 2010, the Board finds that the Veteran did not have a diagnosed left lower extremity neurological disorder secondary to his lumbar spine disability to warrant a separate rating under Diagnostic Code 8620. VA treatment records dated from 2006 to 2009 identified complaints of pain and other radicular symptoms in the right lower extremity, but not the left. While some subjective complaints of numbness and weakness in the lower extremities were noted in private treatment records dated from January 2010, the earliest diagnosis of lumbar radiculopathy in the left lower extremity shown in the record was in May 2010, coincident with the Veteran's May 27, 2010 diagnosis of intervertebral disc syndrome. For these reasons, the Board finds that prior to May 27, 2010, a separate rating is not warranted left lower extremity radiculopathy secondary to the Veteran's lumbar spine disability. The Board has also considered whether a higher evaluation is warranted under Diagnostic Code 5243 which contemplates ratings for intervertebral disc syndrome based on incapacitating episodes. See 38 C.F.R. § 4.71a. For the entire rating period prior to May 27, 2010, the Veteran's lumbar spine disability has not resulted in incapacitating episodes, requiring bedrest prescribed by a physician, having a total duration of at least six weeks or more during any 12 month period to warrant a higher 60 percent rating under Diagnostic Code 5243. 38 C.F.R. § 4.71a. The April 2007 VA authorized examination shows that the Veteran reported twelve incapacitating episodes of back pain for a total duration of 21 days (or three weeks) during the past 12 months, requiring bedrest prescribed by a physician. Accordingly, the Board finds that prior to May 27, 2010, a higher rating 60 percent rating is not warranted under Diagnostic Code 5243. Rating Analysis for a Lumbar Spine Disability From May 27, 2010 From May 27, 2010, the Veteran was assigned 60 percent rating under Diagnostic Code 5243. Under the rating criteria, intervertebral disc syndrome is to be evaluated either under the general rating formula for disease and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As the Board will discuss in more detail below, after considering the Veteran's lumbar spine disability under both the criteria for rating intervertebral disc syndrome based on incapacitating episodes and the general rating formula for disease and injuries of the spine, the Board finds that for the entire rating period from May 27, 2010, an evaluation under the general rating formula for disease and injuries of the spine would result in a higher evaluation than a rating based on incapacitating episodes under the formula for rating intervertebral disc syndrome when all orthopedic and neurological manifestations of the Veteran's lumbar spine disability are combined under 38 C.F.R. § 4.25. Accordingly, the Board finds that separate ratings under Diagnostic Codes 5242 for the lumbar spine and Diagnostic Code 8620 for radiculopathy in the right and left lower extremities are appropriate and would be more beneficial to the Veteran in this case. The Board finds, first, that an evaluation in excess of 60 percent is not warranted under Diagnostic Code 5243. A 60 percent rating is the maximum rating available under Diagnostic Code 5243. See 38 C.F.R. § 4.71a. Accordingly, a higher evaluation is not warranted under that Diagnostic Code. Moreover, the Board notes that despite the Veteran's 60 percent rating assigned by the RO under Diagnostic Code 5243, a September 2012 VA examination shows that the Veteran did not have any incapacitating episodes over the past 12 months due to intervertebral disc syndrome. Accordingly, the Board finds that an evaluation under Diagnostic Code 5243 is not appropriate in this case. The May 2014 rating decision shows that the RO assigned the Veteran's 60 percent rating with consideration of the Veteran's May 27, 2010 diagnosis of intervertebral disc syndrome shown in private treatment records, August 2010 self-report of staying in bed during flare-ups of pain, limitations to range of motion, and bilateral radiculopathy. Notably, the May 2014 rating decision specifically considered the Veteran's bilateral radiculopathy as part of the Veteran's 60 percent evaluation under Diagnostic Code 5243. The Board will next consider the Veteran's lumbar spine disability under Diagnostic Code 5242. The Board finds that for the entire rating period from May 27, 2010, the weight of the evidence is against a rating in excess of 40 percent under Diagnostic Code 5242. The Board finds that for the entire rating period from to May 27, 2010, the Veteran's lumbar spine disability did not approximate unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The September 2012 VA examination shows that there was no ankylosis of the spine. The Veteran had 40 degrees forward flexion in the spine, with pain starting from 45 degrees. The Veteran was not able to complete repetitive range of motion due to pain during a September 2012 VA examination. Functional loss or functional impairment in the thoracolumbar spine included weakened movement, fatigability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing. Due to the Veteran's functional limitations due to pain and his inability to complete repeat testing, the Board finds that from May 27, 2010, the Veteran's disability approximates favorable ankylosis of the entire thoracolumbar spine, consistent with a 40 percent rating under Diagnostic Code 5242, but does not approximate unfavorable ankylosis of the entire thoracolumbar spine. From May 27, 2010, the entire thoracolumbar spine is not shown to be fixed in flexion or extension, and the Veteran is not shown to exhibit other factors associated with unfavorable ankylosis noted in Note (5) to 38 C.F.R. § 4.71a. The Board finds that even with consideration of functional loss due to pain, there was no fixation in the thoracolumbar spine, and for the entire rating period from May 27, 2010, range of motion of the thoracolumbar spine does not approximate unfavorable ankylosis of the entire thoracolumbar spine and does not approximate a higher 50 percent rating under Diagnostic Code 5242. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. For the entire rating period from May 27, 2010, the Board finds that separate 20 percent ratings are warranted for right and left lower extremity radiculopathy secondary to the Veteran's lumbar spine disability. Under Diagnostic Code 8620, a 20 percent rating is assigned for moderate neuritis of the sciatic nerve. 38 C.F.R. § 4.124a. Private treatment records dated from May 2010 January 2011 reflect a diagnosis of lumbar radiculopathy in the bilateral lower extremities. A June 2012 VA treatment report identified sciatica, bilaterally. A September 2012 VA authorized examination assessed the Veteran with "moderate" radiculopathy in the bilateral lower extremities. Neurological testing showed normal muscle strength, hypoactive reflexes in the lower extremities, decreased light touch sensation, and moderate pain, parastheseas or dysthesias, and numbness in the lower extremities. The Board finds that neurological testing results are consistent with the VA authorized examiner's finding of moderate radiculopathy. Accordingly, the Board finds that separate 20 percent ratings are assignable under Diagnostic Code 8620 for sciatic nerve neuritis that is no more than moderate in degree. The Board finds that from May 27, 2010, left and right lower extremity radiculopathy did not more nearly approximate a rating based on moderately severe incomplete paralysis, neuritis, or neuralgia of the sciatic nerve. Based on the analysis above, the Board finds that from May 27, 2010, the assignment of separate 40 percent, 20 percent, and 20 percent ratings under Diagnostic Codes 5242 and 8620 would result in a higher rating for the Veteran's lumbar spine disability. As discussed above, an evaluation in excess of 60 percent is not available to the Veteran under Diagnostic Code 5243. The Board finds that the combination of separate 40 percent, 20 percent, and 20 percent evaluations under 38 C.F.R. § 4.25, with consideration of the bilateral factor, would result in a 64 percent rating for the Veteran's lumbar spine disability and associated bilateral radiculopathy. The Board finds that this is higher than the 60 percent rating assignable under Diagnostic Code 5243 based on incapacitating episodes of intervertebral disc syndrome. For these reasons, the Board finds that from May 27, 2010, the assignment of separate ratings based on orthopedic and neurological manifestations of the Veteran's lumbar spine disability is appropriate. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that for the increased rating period, the symptomatology and impairment caused the Veteran's lumbar spine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings for the lumbar spine based on limitation of motion and function, to include as due to flare-ups of pain, weakness, fatigability, and based on incapacitating episodes due to intervertebral disc syndrome. The rating criteria also allows for separate ratings for neurological manifestations, such as radiculopathy. The Veteran's lumbar spine disability is characterized by limitation of motion in the lumbar spine, pain, radiculopathy, and reported incapacitating episodes. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's service-connected lumbar spine disability, and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "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." 38 C.F.R. § 4.1 (2015). In this case, the problems reported by the Veteran such as difficulty with ambulation, performing activities of daily living, and the need for rest during flare-ups of pain are specifically contemplated by the criteria discussed above, and this includes the effect of his disability on occupational or daily functioning. While the Veteran is shown to be unemployable due to his back disability, the Board finds that this is adequately considered by his TDIU rating, which was granted during the course of the appeal. In the absence of exceptional factors associated with the lumbar spine, the Board finds that the criteria for referral for consideration 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 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Moreover, the record shows that the Veteran is already in receipt of a total disability rating based on the combination of his service-connected disabilities. (CONTINUED ON NEXT PAGE) ORDER Prior to May 27, 2010, an increased rating in excess of 40 percent rating for spondylolisthesis of L5-Sl with degenerative disc disease of the lumbar spine is denied. Prior to May 27, 2010, a separate 10 percent rating for right lower extremity radiculopathy is granted. From May 27, 2010, a 60 percent rating under Diagnostic Code 5243 is amended to reflect a 40 percent rating under Diagnostic Code 5242 for spondylolisthesis of L5-Sl with degenerative disc disease of the lumbar spine with separately assigned ratings for radiculopathy. From May 27, 2010, a separate 20 percent rating granted for right lower extremity radiculopathy. From May 27, 2010, a separate 20 percent rating is granted for left lower extremity radiculopathy. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs