Citation Nr: 0809996 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-15 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating higher than 10 percent for a low back disability, including for associated left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The veteran had active military service from April 2001 to April 2005. This appeal to the Board of Veterans' Appeals (Board) is from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In relevant part, that decision granted the veteran's claim for service connection for a low back disability and assigned a 10 percent initial rating for the condition retroactively effective from April 9, 2005, the first day after his discharge from service. He wants a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999). Jurisdiction over his claim was subsequently transferred to the RO in St. Petersburg, Florida, and that office forwarded the appeal to the Board. FINDINGS OF FACT 1. Under the revised criteria - effective since September 26, 2003, the veteran's service-connected low back disability, even with consideration of his complaints of pain, does not cause limitation of forward flexion of the thoracolumbar spine to 60 degrees or less, limitation of the combined range of motion of the thoracolumbar spine to 120 degrees or less, muscle spasm (or guarding) severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. He also does not have ankylosis or any indication of incapacitating episodes. 2. The veteran has "mild" left lower extremity radiculopathy associated with his low back disability. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating higher than 10 percent for the low back disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2007) (in effect as of September 26, 2003). 2. The criteria are met, however, for a separate 10 percent rating, but no greater, for associated left lower extremity radiculopathy. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Duties to Notify and Assist Review of the claim file reveals compliance with the Veterans Claims Assistance Act (VCAA), 38 U.S.C.A. § 5100 et seq (West 2002 & Supp. 2007). See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The RO complied with the duty to notify by sending the veteran a VCAA letter in October 2005. The letter 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 increased initial rating claim; (2) informing him of the information and evidence VA would obtain; (3) informing him of the information and evidence he was expected to provide; and (4) requesting that he submit any evidence in his possession pertaining to his claim. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, a more recent April 2006 letter from the RO further advised the veteran of the disability rating and effective date elements of his claim - keeping in mind his claim initially arose in the context of him trying to establish his underlying entitlement to service connection (since granted). Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Concerning this, the U.S. Court of Appeals for Veterans Claims (Court) has held that an appellant's filing of a notice of disagreement (NOD) regarding an initial disability rating and effective date, such as the case here, does not trigger additional section 5103(a) notice. Indeed, the Court has determined that to hold that section 5103(a) continues to apply after a disability rating or an effective date has been determined would essentially render sections 7105(d) and 5103A and their implementing regulations insignificant and superfluous, thus disturbing the statutory scheme. Dingess at 491, 493, 500-501. The Court, however, more recently clarified its holding in Dingess, indicating it was limited to situations where service connection was granted and the disability rating and effective date assigned prior to the enactment of the VCAA - so prior to November 9, 2000. If, as here, this did not occur until after that date, the veteran is entitled to pre- decisional notice concerning all elements of his claim, including these downstream disability rating and effective date elements. And if he did not receive this notice, for whatever reason, it is VA's obligation, not his, to explain why this is not prejudicial error, i.e., harmless. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, here, the RO provided him Dingess notice in April 2006 discussing both the disability rating and effective date elements of his original, underlying claim for service connection (since granted). He also clearly has actual knowledge of the criteria for a higher rating, as he has reported several of these requirements on various occasions when corresponding with the RO. See his NOD dated in September 2005, his substantive appeal (VA Form 9) dated in May 2006, and his representative's statement dated in January 2007. In Pelegrini II, the 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, some of the VCAA notice was provided after the initial April 2005 AOJ, i.e., RO decision at issue. But 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, the October 2005 VCAA notice was provided after the initial AOJ decision, but the timing defect was cured by the subsequent SOC in April 2006. And after providing the additional VCAA Dingess notice in April 2006, the RO again went back and readjudicated the claim in the more recent November 2006 SSOC. So each time after providing the required notice, the RO reconsidered the claim - including addressing any additional evidence received in response to the notice. Hence, the timing defect in the notice has been rectified. All things considered, 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 downstream increased initial rating claim. 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 claim, so found the error was harmless). As for the duty to assist, the RO obtained the veteran's service medical records (SMRs) and the reports of his several VA medical examinations, including assessing the severity of his disability. The Board also notes that he has submitted private medical evidence pertinent to his claim. The last VA examination evaluating the severity of his disability was in March 2006. 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). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995); VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Here, however, the Board has sufficient evidence to fairly adjudicate this claim. A VA examination and opinion would serve no constructive purpose. Cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Consequently, another VA examination to assess the severity of this disorder is unnecessary. There is more than enough evidence to decide his claim for a higher initial rating for the disability on appeal. Thus, 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 (Rating Schedule), 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). 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. 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. 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 sustained 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). Such 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). 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). Because the veteran has perfected an appeal in response to the assignment of an initial rating following the initial award of service connection for his degenerative arthritis and disc disease of the lumbar spine, the Board is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection (April 9, 2005) until the present. That is to say, the Board must consider whether there have been times since the effective date of his award when his disability has been more severe than at others. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Consistent with the facts found, if, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods, i.e., the rating may be "staged." Id. 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 was received in October 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 of September 26, 2003, the amendments stipulate that the veteran's intervertebral disc syndrome (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 (2007). According to the Formula for Rating IVDS Based on Incapacitating Episodes: A 10% rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. 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 intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 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 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 under Diagnostic Code 5243 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 10% evaluation will be assigned 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 of more of height. A 20% rating is assigned 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 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 of unfavorable ankylosis of the entire cervical spine; or, 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 (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120 (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). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (2007). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore also for neuritis and neuralgia of that nerve. Under this Code, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a higher 40 percent rating; and severe incomplete paralysis of the sciatic nerve 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). 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 (2007). 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 (2007). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Analysis - Higher Rating for the IVDS During service, the veteran was treated for lower back problems suffered since November 2001, caused by lifting heavy packs. See his SMRs. The April 2005 rating decision at issue granted service connection for his lumbar spine disability and assigned an initial 10 percent rating under Diagnostic Code 5242, for degenerative arthritis of the spine, retroactively effective from April 9, 2005, the day after his discharge from service. The 10 percent rating has remained in effect since it was initially assigned, although his disability now also includes degenerative disc disease (i.e., IVDS). He asserts that his low back disorder is more than 10-percent disabling. See his NOD dated in September 2005 and substantive appeal (VA Form 9) dated in May 2006. IVDS is rated under DC 5243, as opposed to DC 5242. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). But even considering this additional code, the evidence of record does not support assigning a rating higher than 10 percent for the IVDS. 38 C.F.R. § 4.7. In making this determination, the Board has reviewed the veteran's personal statements, private chiropractic examination dated in March 2006, VA neurological examination dated in March 2006, VA spine exam dated in March 2006, VA (QTC contractor) examination dated in November 2004, VA (QTC contractor) X-ray examination report dated in November 2004, a magnetic resonance imaging (MRI) report from his SMRs dated in April 2004, and other SMRs. Specifically, there is no evidence warranting a higher 20 percent evaluation such as forward flexion of the thoracolumbar spine to 60 degrees or less, limitation of the combined range of motion of the thoracolumbar spine to 120 degrees or less, muscle spasm (or guarding) severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Further, there is no evidence of unfavorable ankylosis of the entire cervical spine warranting a higher 40 percent evaluation, unfavorable ankylosis of the entire thoracolumbar spine warranting a higher 50 percent evaluation or unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation. In fact, the VA examination dated in November 2004 specifically found there is no ankylosis of the spine, and there is no other mention of ankylosis in the other VA or private exams. With regard to functional loss, the March 2006 VA examination noted the veteran does not wear a back brace or use a can or any other ambulatory device. In addition, the VA examinations dated in March 2006 and November 2004 both reported that his activities of daily living, including going to the grocery store, are not limited by his lumbar spine disability. Further, overall, there is no impairment of his occupation as an online technician. It is acknowledged that he reported missing four days of work in the prior year at his VA examination dated in March 2006, and between 10 to 20 days of work on average per year at his VA examination dated in November 2004. VA examinations documented no additional fatigue, weakness, and loss of endurance due to the functional loss. A VA examination dated in November 2004 noted he experiences some modest discomfort when at the limits of a normal range of motion (at 90 degrees flexion, 30 degrees extension, and 30 degrees left lateral flexion). See 38 C.F.R. § 4.71a, Plate V. Most significantly, however, there is no post-service medical evidence suggesting that pain and any other factors of functional loss limit his lumbar spine flexion to 60 degrees, which is necessary for a higher rating. Overall, any functional loss is adequately represented in the current 10 percent rating assigned. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. Under the September 2003 amendments, as to incapacitating episodes under Diagnostic Code 5243, the VA and private examinations of record do not reflect incapacitating episodes. It is noted that the private examination dated in March 2006 mentioned "flare-ups" of the veteran's lumbar spine disability. Even though the VA examination report dated in March 2006 cites his denial of any "flare-ups," he contests this listing and instead asserts frequent "flare- ups" in his May 2006 substantive appeal. Even assuming he has "flare-ups," however, there is no evidence or allegation of bed rest prescribed by a physician to support concluding he has experienced an incapacitating episode. In summary, the Board finds that the preponderance of the evidence is against a disability rating greater than 10 percent, under the September 2003 amendments. And since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the veteran's favor. 38 C.F.R. § 4.3. Analysis - Additional, Separate Rating for Lower Extremity Radiculopathy Records show the veteran also has left lower extremity radiculopathy associated with his service-connected low back disability. See his private examination dated in March 2006, VA examination dated in November 2004, and MRI report from his SMRs dated in April 2004. However, the RO did not assign a separate rating for these residual neurological manifestations of his low back disability, although the RO has addressed this supplemental issue in the SOC dated in April 2006 and the SSOC dated in November 2006. There is evidence suggestive of "mild" incomplete paralysis of the sciatic nerve warranting an additional 10 percent rating. 38 C.F.R. § 4.7. The veteran was specifically diagnosed with radiculopathy of the left lower leg by a November 2004 VA examiner and the March 2006 private examiner. The November 2004 VA examiner noted a positive straight leg test on the left side, indicative of neuropathy. Moreover, the veteran has consistently reported pain in his back and radiculopathy, and occasional weakness in his left lower extremity to his examiners. Also, an MRI during service in April 2004 clearly showed that his left nerve root was impacted by his degenerative disc disease. The Board acknowledges the opinion of the March 2006 VA neurologic examiner that the veteran has no neuropathy, and instead attributed the radiating pain in his left leg to mere muscle spasm. But there is other evidence of record, equally credible and probative, suggesting otherwise. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In fact, the veteran still reported radiation of the pain into his left leg to the March 2006 VA neurologic examiner, and the examiner conceded he did not even review the C-file or other pertinent records in making his determination. Overall, the evidence of record is suggestive of "mild" neuropathy. Absent evidence of constant weakness, bowel or bladder impairment, muscle atrophy, or footdrop, a higher rating is not in order. However, resolving any doubt in the veteran's favor, the evidence supports a separate 10-percent disability rating, but no higher, for his left lower extremity radiculopathy. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (Oct. 8, 1996); 38 C.F.R. § 4.3. Fenderson Consideration Since his IVDS of the lumbar spine has never been more than 10-percent disabling at any time since April 9, 2005, the Board cannot "stage" this rating. Fenderson, 12 Vet. App at 125-26. The Board, as mentioned, is also assigning a separate 10 percent disability rating for the veteran's radiculopathy, retroactively effective from the same date as the grant of service connection for the underlying IVDS. There is also no basis to "stage" this rating. Id. Extra-Schedular Consideration Finally, there is no evidence of exceptional or unusual circumstances to warrant referring this case for extra- schedular consideration. 38 C.F.R. § 3.321(b)(1) (2007). The Board finds no evidence that the veteran's disability markedly interferes with his ability to work, meaning above and beyond that contemplated by his schedular rating for either disability (10 percent for his IVDS of the lumbar spine and 10 percent for the associated radiculopathy). 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. Furthermore, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations, to suggest he is not adequately compensated for his disability by the regular rating schedule. His evaluation and treatment has primarily - if not exclusively, been on an outpatient basis, not as an inpatient. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); 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 an initial rating higher than 10 percent for the low back disability is denied. However, a separate, additional10 percent rating is granted for the associated radiculopathy affecting the left lower extremity, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs