Citation Nr: 0811590 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 00-20 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a sinus disorder. 2. Entitlement to an increased evaluation for a lumbar spine disability, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, C.G. ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from September 1987 to June 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) and Board remand. By a September 2007 rating decision, the RO granted the veteran's claims for entitlement to service connection for a left shoulder disorder and for a left knee disorder. In light of the foregoing, no allegations of errors of fact or law remain for appellate consideration. The RO's September 2007 decision has fully resolved and rendered moot the claims. No exceptions to the mootness doctrine are present because the benefits sought on appeal have been granted without the need for action by the Board. See Thomas v. Brown, 9 Vet. App. 269, 270-71 (1996); see 38 U.S.C.A. §§ 511, 7104, 7105 (West 2002); 38 C.F.R. § 20.101 (2007). The issue of service connection for a sinus disorder is addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center, in Washington, DC. FINDINGS OF FACT 1. Prior to September 23, 2002, a lumbar spine disability is manifested by degenerative disc disease with severe radiating pain, muscle spasms, and absent ankle jerks. 2. On and after September 23, 2002, a lumbar spine disability is manifested by lumbosacral strain with flexion to 20 or 40 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, bilateral rotation to 15 degrees, and bilateral lower extremity neurological manifestations. CONCLUSIONS OF LAW 1. Prior to September 23, 2002, the criteria for a 60 percent evaluation, but no more, for a lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). 2. On and after September 23, 2002, the criteria for an evaluation in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5292- 5295 (2003); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2007). 3. On and after September 23, 2002, the criteria for a separate evaluation of 10 percent for right lower extremity neurological manifestations of a lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720 (2007). 4. On and after September 23, 2002, the criteria for a separate evaluation of 10 percent for left lower extremity neurological manifestations of a lumbar spine disability have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the veteran's claim for entitlement to an increased evaluation for a lumbar spine disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to a post- remand re-adjudication of the veteran's claim, May 2006 and February 2007 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re- adjudication of the claim). Also prior to the re- adjudication, August 2002 and August 2005 supplemental statements of the case notified the veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability to include the effects on employment and daily life, the specific requirements to obtain a higher rating under the spine diagnostic codes applicable throughout the time period, and notice of the different types evidence available to demonstrate the above. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); Prickett, 20 Vet. App. at 376. The letters also requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). The veteran's service medical records, VA medical treatment records, VA examination reports, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2007). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). By a January 1998 rating decision, the RO granted service connection for lumbosacral strain, status-post disk excision and fusion at L5-S1 (lumbar spine disability) and assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5295, effective August 1, 1997. By a March 1998 rating decision, the RO assigned a 40 percent evaluation under Diagnostic Code 5295-5292, effective August 1, 1997. By March 1998, May 1998, and September 1998 rating decisions, the RO continued the 40 percent evaluation. By an October 1998 rating decision, a 100 percent evaluation was assigned under 38 C.F.R. § 4.30 (2007), effective September 8, 1998. A 40 percent evaluation was assigned under Diagnostic Code 5295-5292, effective January 1, 1999. By a November 1998 rating decision, the 100 percent evaluation was extended to February 1, 1999. By a December 1998 rating decision, the 40 percent evaluation was continued. In May 1999, the veteran filed a claim for entitlement to a total disability rating based on individual unemployability which the RO considered as a claim for entitlement to an increased evaluation. By a February 2000 rating decision, the RO continued the 40 percent evaluation under Diagnostic Code 5295-5292. The veteran appealed. During the pendency of this appeal, VA revised the criteria for diagnosing and evaluating the spine, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54345 (2002); 68 Fed. Reg. 51454-51458 (2003). When a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. See VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. See VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The RO addressed the veteran's claim for increase under both the old and the revised criteria. Thus, there is no prejudice to the veteran for the Board to apply the regulatory revisions of September 23, 2002 and September 26, 2003 in the adjudication of this appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). Old Criteria An April 1999 private medical record noted that the veteran had back surgery in September 1998. The examiner noted that although the radiographic results looked good, clinically the veteran still had much difficulty. In a May 1999 private record, the diagnosis was degenerative disk L5/S1, status- post posterior lumbar interbody fusion with residual symptomatology. The private examiner did not feel that the veteran would be able to return to his regular job. In another May 1999 private record, the veteran reported left sciatica and left lower extremity weakness. In a June 1999 VA radiology report, the impression was orthopedic rods and screws secure the L5-S1 level posterior and remaining disk spaces well-preserved. An August 1999 VA spine examination was conducted. The veteran reported constant low back pain and left leg pain that was exacerbated with physical therapy and relieved by lying down. The pain radiated into the S1 distribution of the left lower extremity with weakness and significantly limited his current activities. Upon examination, there was lumbar spine flexion to 45 degrees, extension to 30 degrees, bilateral lateral flexion to 40 degrees, and bilateral rotation to 45 degrees. There was lumbar spine pain to palpation, no motor weakness, 5/5 strength, no current numbness, and a negative seated straight leg raise test, but back pain with the supine straight leg raise on the left, which was slightly inconsistent with examination. The examiner was unable to obtain any reflexes. There were symptoms of radicular pain in the left S1 distribution. The impression was chronic low back pain with chronic radiation into the left lower extremity. In a November 1999 VA medical record, the veteran reported low back pain. In a December 1999 VA record, the veteran reported low back pain of 7.5/10 and denied bowel or bladder problems. The veteran was reluctant to squat or bend. Examination showed slight rigidity of the lumbar paravertebral muscles, negative straight leg raise test, intact sensory examination to light touch and pinprick, and normal motor examination. In a January 2000 VA record, the veteran reported low back pain. In a March 2000 VA lumbar spine x-ray report, there was mild spinal stenosis of the central canal at L4-L5 and suboptimal visualization at L5-S1 due to metallic stabilization devices. In an April 2000 VA record, the veteran reported back pain that radiated down the left lower extremity. In the April 2000 notice of disagreement, the veteran reported constant excruciating back pain. In April 2000 VA medical records, the veteran reported persistent low back pain, left leg numbness, and increased pain upon lying down. In a May 2000 VA record, the veteran reported increasing low back pain with left leg radiculopathy. There was a negative straight leg raise test and apparent paralumbar muscles spasm. In a June 2000 VA record, the veteran reported constant low back pain extending to the left proximal thigh and left leg weakness. He reported that his symptoms worsened with sitting, rising, walking longer than 10 minutes, could not be relieved, and disturbed his sleep. There was normal bowel and bladder function. Upon examination, there was reduced lumbar lordosis and right rotoscoliosis. A July 2000 VA joints examination was conducted. The veteran reported back pain with leg weakness and buttock pain. He reported that his leg felt numb when he lay supine and that placing pillows between the legs provided symptomatic relief. Upon examination, there was lumbar spine flexion to 30 degrees, extension to 0 degrees, and bilateral lateral flexion to 10 degrees. There were paraspinal spasms, a negative straight leg raise test, and symmetrical patella and Achilles reflexes. A July 2000 VA peripheral nerves examination was conducted. The veteran reported chronic low back pain that radiated into the left leg. Upon examination, there was no motor or sensory evidence for radiculopathy or sciatic neuropathy of the left L5 or S1 nerve root distribution. A July 2000 lumbar spine radiology report impression was bilateral laminectomy at the L5 vertebra with metallic fixation screws and previous posterolateral bony fusion with no other abnormalities. In an October 2000 private medical record, an examiner opined that the veteran's left leg weakness was due to the original back injury. In a January 2001 VA medical record, the veteran reported back pain and left leg weakness. The pain was 7/10 without medication and 2/10 with medication. The examiner noted a normal left leg electromyography report. A January 2001 VA spine examination was conducted. The veteran reported a hot burning sensation in his low back and posterior buttocks and intermittent and burning left lower extremity pain. He stated that his left lower extremity hurt upon walking, that he could not sit longer than 30 minutes, and that he wore a soft lumbar corset. He denied bowel or bladder incontinence and erectile dysfunction. Upon examination, there was lumbar spine flexion to 60 degrees, extension to 10 degrees, and bilateral lateral flexion to 10 degrees, all with pain. There was 3/5 motor strength of the left anterior tibialis and extensor hallucis longus muscles. The remaining muscles were symmetrical and 4+/5. The assessment was back pain with history of herniated L5/S1 status-post diskectomy with continued radicular symptoms. An April 2001 VA spine examination was conducted. There was lumbar spine flexion to 30 degrees, extension to 0 degrees, and bilateral lateral flexion to 10 degrees. There was a negative straight leg raise test and symmetric deep tendon reflexes. The impression was increased, left greater than right, gastroc-soleus weakness consistent with S1 radiculopathy, left greater than right. In an August 2001 VA medical record, the veteran reported constant low back pain. He denied any bowel or bladder incontinence. He was ambulatory and used a lumbosacral support device. He reported that he worked at Wal-Mart and did not have any responsibilities that worsened his back pain. He had used nonsteroidals, topical treatments, muscle relaxants, and narcotics without relief. Upon examination, there was discomfort in the lower thoracic and upper lumbar areas. There was paraspinal muscles pain upon range of motion but no neurological deficiencies. In a May 2002 private medical record, the veteran reported a left shoulder injury while at work at Wal-Mart. He also reported back problems. In a June 2002 lay statement, the veteran reported that he quit his job at Wal-Mart in May 2002 due to excruciating back and knee pain. He stated that he could no longer cope with the long hours of standing, lifting, bending, and squatting. In a June 2002 lay statement, an employee in the financial aid office of a barber school stated that the veteran had attended since June 2001, but had reported that he might be unable to complete his degree due to back pain. In another June 2002 lay statement, the assistant manager of Wal-Mart stated that in May 2002 the veteran resigned and told him that it was due to his back pain. In a July 2002 VA medical record, the veteran reported an accident while working and resulting thoracic spine pain. The veteran reported that he was presently unemployed. He reported low back pain, the use of a back brace, and denied bowel or bladder dysfunction. Upon examination, there was decreased range of lumbar spine motion with pain. The veteran ambulated independently without assistive devices or significant gait deviations. Prior to September 26, 2003, the rating criteria for lumbosacral strain assigned a maximum 40 percent evaluation for severe strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic 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, Diagnostic Code 5295 (2002). The rating criteria for limitation of lumbar spine motion assigned a maximum 40 percent evaluation for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The veteran's lumbar spine disability was rated under Diagnostic Code 5295-5292. The hyphenated code used for rating the veteran's disability was intended to show that the disability included both limitation of lumbar spine motion, Diagnostic Code 5292, and lumbosacral strain, Diagnostic Code 5295. 38 C.F.R. § 4.27 (2007). The current 40 percent evaluation reflects severe strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, or severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002). The Board has considered an increased evaluation prior to September 26, 2003, but an evaluation in excess of 40 percent is not provided for under the provisions of Diagnostic Codes 5292, 5295 (2002). Accordingly, an evaluation in excess of 40 percent is not warranted for a lumbar spine disability prior to September 26, 2003. The Board has considered other potential diagnostic codes applicable prior to September 26, 2003. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). But the evidence of record did not demonstrate residuals of a fractured vertebra or ankylosis of the complete or lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289 (2002). Additionally, ratings in excess of 40 percent are not provided for ankylosis of the cervical or dorsal spine, limitation of cervical or dorsal spine motion, or sacroiliac injury or weakness. 38 C.F.R. § 4.71a, Diagnostic Codes 5287, 5288, 5290, 5291, 5294 (2002). The Board has also considered rating the veteran's lumbosacral strain under the two diagnostic codes for intervertebral disc syndrome that were applicable prior to September 26, 2003. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Prior to September 23, 2002, the rating criteria for intervertebral disc syndrome assigned a maximum 60 percent evaluation for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Prior to September 23, 2002, the veteran consistently reported severe back pain that radiated down the extremities, left greater than right, with left leg weakness. The objective evidence showed degenerative disc disease with intermittent positive straight leg raise tests, an inability to obtain reflexes, absent or reduced ankle jerks, muscle spasms, decreased motor strength, and findings consistent with S1 radiculopathy, left greater than right. The evidence also intermittently showed negative straight leg raise tests and normal reflex, sensory, and motor examinations. Resolving all reasonable doubt in favor of the veteran, see Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the veteran's subjective complaints and objective symptomatology thus more closely approximates the requirement for a 60 percent evaluation. 38 C.F.R. § 4.7 (2007) (noting that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating). Accordingly, prior to September 23, 2002, the Board finds that a 60 percent evaluation for a lumbar spine disability is warranted under the provisions of Diagnostic Code 5293. Revised Criteria In an April 2003 lay statement, a fellow Wal-Mart employee stated that once she had transported the veteran to the emergency room with low back pain because due to the intensity of the pain, the veteran was unable to transport himself. In another April 2003 lay statement, the veteran's former Wal-Mart supervisor stated that the veteran complained a lot about his back pain and was eventually moved to another department that was less difficult on his back. The manager noted that the veteran's records showed time missed due to back pain and that he had aggravated the back while at work. In an April 2003 lay statement, a hair stylist at a barber shop where the veteran worked stated that the veteran took frequent breaks and didn't always show up for work and that the veteran had stated that it was due to shoulder pain. At the April 2003 Board hearing, the veteran testified that almost every day his back gets so bad that he can't do anything. He reported that when he has the back pain, his left leg gets weak. Exacerbations were caused by bending or squatting. The veteran's fiancée reported that the veteran's back pain medication made him drowsy and changed his attitude. She stated that 2 to 3 times per week he needs to be left alone to go in his room and lay down. In April 2003 VA medical records, the veteran was wearing a back brace. Examination showed no pain on straight leg raise test and normal, symmetrical deep tendon reflexes. The veteran's gait favored his left leg. In May 2003 VA records, the veteran reported back pain that was aching and occasionally sharp, and radiated into the left leg. The pain was severe and worsened by prolonged standing, walking, and heavy lifting. There was left lower extremity weakness, but no bowel or bladder incontinence. Upon examination, there was markedly decreased range of motion. There was a 4/5 motor examination, grossly intact sensory examination, intact deep tendon reflexes, and a negative straight leg raise test. The back was bilaterally symmetrical without abnormal curvature. There was an independent gait and the veteran was independent in his activities of daily living. A July 2003 VA spine examination was conducted. The veteran reported back pain, left lower extremity weakness, and sleep disturbance due to low back spasm. He could stand for about 20 to 30 minutes and did not carry a cane or use assistive devices. He reported erectile dysfunction and occasional bladder incontinence but no bowel dysfunction. Upon examination, there was lumbar flexion to 20 degrees, extension to 10 degrees with mild pain, and bilateral lateral flexion to 20 degrees. Muscle strength was 3/5 of the extensor hallucis longus, 4/5 of the anterior tibial, 4+/5 of the left gastroc soleus, and 5/5 in the remainder of the bilateral lower extremities. There was a positive straight leg raise test. The examiner opined that it was as likely as not that the initial inservice event caused the lumbar disk disease and the residual decreased range of motion and left lower extremity weakness. A lumbar spine x-ray impression was post surgical changes, probably related to degenerative disc disease and degenerative arthritis. A July 2003 VA neurological examination was conducted. The veteran reported constant low back pain that radiated to the bilateral lower extremities, left greater than right. Upon examination, there was a straight leg raise sign on the right at 45 degrees and on the left at 30 degrees and a bilateral absence of the Achilles reflexes. The impression was bilateral L5-S1 radiculopathy with pain and probable arachnoiditis of the lumbar spine. In a September 2003 VA medical record, the veteran reported moderate, burning low back pain. The pain was worsened by prolonged standing or walking, running, heavy lifting, and bending at the waist. Pain was better when lying down. He reported radiation to the left hip with left leg weakness, but denied bowel or urinary incontinence. Upon examination, the back was bilaterally symmetrical without abnormal curvature. There was full range of motion and a negative straight leg raise test. In October 2003 VA medical records, the veteran reported severe low back pain and leg weakness that caused give-way. Upon examination, the back was symmetrical without abnormal curvature and there was no muscle atrophy, point tenderness of the lumbosacral spine with radiculopathy to the knees, and a positive straight leg raise test. The veteran used a walker. The assessment was low back pain radiating to the legs. In a January 2004 VA record, the veteran reported constant low back pain that was 7/10. He stated he could barely get around, the pain was worse with ambulation and better with lying on his back, and disturbed his sleep. He reported worsening leg weakness, but no incontinence of bowel or bladder. He used a rollator and back brace and took over the counter and prescription medication. Upon examination, the veteran was ambulatory with a rollator with an antalgic gait. There was tenderness to palpation of the mid lower back, markedly reduced range of motion, rigidity of the lumbar paravertebral muscles, and intact lower extremity motor examination. A lumbar spine x-ray impression was L5-S1 fusion, L5 laminectomy, and otherwise no significant bony arthritic changes. In February 2004 VA medical records, the veteran reported back pain of 7/10 that was aching, burning, and stabbing, and made his legs weak. He had to reposition frequently and lying down sometimes improved the pain. The pain interfered with his sleep and awakened him at night. Upon examination, there was an antalgic gait and the veteran walked with a rollator. There was negative straight leg raise test, positive sacroiliac joint tenderness, left greater than right, positive Patrick's test, and intact sensory examination. The motor examination showed muscle strength of 3/5 at the bilateral hips, 3/5 at the right knee, 2/5 at the left knee, and 4/5 at the ankles and extensor hallucis longus. Reflexes were 0/4 at the right knee, 3/4 at the left knee, and 3/4 at the ankles. In March 2004 VA records, the veteran reported low back pain that was 8/10 and traveled to his posterior left leg. The pain was shooting, aching, burning, and cramping. The veteran reported difficulty walking, leg muscle weakness, and disturbed sleep. There was no bowel or bladder dysfunction. Upon examination, the veteran was unable to bend and there was lumbar spine tenderness. In a March 2004 private medical record, the veteran reported low back pain that radiated into his left buttock. The veteran walked slow and cautiously with a walker. There were normal reflexes of the lower extremities and questionably positive straight leg raise test on the left. In April 2004 VA medical records, the veteran reported low back and posterior left leg to foot pain. The pain was 7/10 and was throbbing, aching, burning, and cramping. The veteran stated that his sleep was interrupted secondary to the pain. An April 2004 VA lumbar spine computerized tomography scan (CT) impression was posterior fusion at L5-S1 which obscures detail and moderate central stenosis at L4-L5. In a July 2004 lay statement, a technical college instructor stated that while the veteran was enrolled in his class in spring 2004, the veteran had expressed his concern about sitting for long periods of time due to a back injury. The instructor noted that during class the veteran showed signs of discomfort and pain, the veteran left class multiple times due to pain, and the veteran eventually withdrew from the class, although he was passing at that time. In an August 2005 lay statement, a VA rehabilitation counselor stated that the veteran was enrolled in technical college but withdrew in February 2004. In a July 2004 lay statement, the veteran's fiancée stated that she sometimes assisted him in putting on his shoes because he couldn't bend over. She stated that he could not perform some household duties like mowing the lawn or home improvement and that his medication made him disoriented, sleepy, and dazed looking. In a July 2004 statement, the veteran reported that his pain medication made him feel weak, sleepy, and confused. In a September 2004 VA medical record, a lumbar spine CT impression was posterior fusion at L5-S1 and moderate central canal stenosis at L4-5. In a November 2004 VA record, the veteran reported continued low back pain and burning pain in the left buttocks. There was no bowel or bladder dysfunction and no lower extremity numbness. Upon examination, the lumbar paraspinal muscles were soft and there was no tenderness to palpation of the paraspinal muscles or vertebra. In a July 2005 VA record, the veteran reported chronic low back pain. He stated he was unemployed and used a back brace. An August 2005 VA lumbar spine radiology report impression was postoperative changes of the lumbar spine. A March 2007 spine examination was conducted. The veteran reported daily low back pain, which radiated to his left leg and occasionally affected his ability to walk. In the past year, he reported 7 or 8 incapacitating episodes of back pain. The veteran reported difficulty lifting and bending and that the back pain greatly restricted his daily activities. He denied flare-ups and reported that he wore a back brace and treated his pain with over the counter medication. Upon examination, there was lumbar flexion to 40 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral rotation to 15 degrees, with severe pain throughout. Repetition did not cause additional limitation of motion. There was apparent muscle spasm, tenderness of the left paraspinal muscles, and straight leg raising was to 45 degrees bilaterally. Neurologic examination showed decreased motor strength at the left knee and decreased sensation in the left leg. Deep tendon reflexes were bilaterally absent, and there was 1+ ankle jerk on the right and an absent left ankle jerk. There was an antalgic and mincing gait. The veteran held his spine flexed in the lumbar area to about 20 degrees. He was unable to stand on tiptoes, stand on a single foot, or walk on his heels. The diagnosis was lumbar spine degenerative joint disease. Effective September 26, 2003, under the revised rating criteria for spine disabilities, a 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (2007). Unfavorable ankylosis for VA purposes is where the spine is fixed in flexion or extension and there is resulting restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). For VA compensation purposes, normal forward flexion of the lumbar 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 lumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V (2007). Also under the General Rating Formula, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Effective September 23, 2002, however, Diagnostic Code 5293 was revised to evaluate intervertebral disc syndrome either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 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. Under the incapacitating episode method of rating intervertebral disc syndrome, a maximum 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); see also 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2003). An incapacitating episode was a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Under the alternate method of rating intervertebral disc syndrome, chronic orthopedic and neurologic manifestations means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that were present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1); see also 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2003). When evaluating on the basis of chronic manifestations, orthopedic disabilities were evaluated using criteria for the most appropriate orthopedic diagnostic code or codes and neurologic disabilities were evaluated separately using criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (2); see also 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2003). When considering the lumbar spine disability's neurological manifestations, sciatic nerve paralysis, neuritis, and neuralgia, are assigned 10, 20, 40, 60, and 80 percent evaluations for sciatic nerve mild incomplete paralysis, moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, and complete paralysis with foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost, respectively. 38 U.S.C.A. § 4.124a, Diagnostic Codes 8520, 8620, 8720 (2007). 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. On and after September 23, 2002, the evidence of record showed subjective complaints of low back pain radiating down the bilateral extremities. The objective evidence of record includes a diagnosis of bilateral L5-S1 radiculopathy but motor examinations within normal limits. These findings most closely demonstrate mild, but not moderate, incomplete paralysis of the sciatic nerve. 38 U.S.C.A. § 4.124a, Diagnostic Codes 8520, 8620, 8720. Accordingly, on and after September 23, 2002, two separate 10 percent evaluations for neurological manifestations of the lumbar spine disability in the right and left lower extremity are warranted. The Board next considers an evaluation in excess of 40 percent for a lumbar spine disability on and after September 26, 2003. The evidence of record for that time period does not demonstrate unfavorable ankylosis of the lumbar or complete spine. Although the veteran keeps his lumbar spine fixed in flexion at 20 degrees, he retained the ability to conduct lumbar spine flexion to 40 degrees, extension to 10 degrees, bilateral lateral flexion to 20 degrees, and bilateral rotation to 15 degrees. Additionally, unfavorable ankylosis as defined by VA requires resulting restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. There is no evidence of such symptomatology of record. Thus, the objective evidence of record shows that the lumbar spine disability does not warrant a 50 or 100 percent evaluation. 38 C.F.R. § 4.71a, General Rating Formula. Accordingly, an evaluation in excess of 40 percent for a lumbar spine disability is not warranted after September 26, 2003. Additionally, on and after September 26, 2003, an evaluation in excess of 40 percent under the diagnostic code for intervertebral disc syndrome is not warranted because although the veteran reported incapacitating episodes, the record did not demonstrate any incapacitating episodes as defined by VA. 38 C.F.R. § 4.71a, Diagnostic Code 5243; see Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board has also considered whether a separate rating is required for any neurological component of the veteran's lumbar spine disability on and after September 26, 2003. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). As noted above, sciatic nerve paralysis, neuritis, and neuralgia are assigned 10, 20, 40, 60, and 80 percent evaluations for sciatic nerve mild incomplete paralysis, moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, and complete paralysis with foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost, respectively. 38 U.S.C.A. § 4.124a, Diagnostic Codes 8520, 8620, 8720. 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. During this time period, the veteran reported bilateral radicular pain and weakness. The objective evidence of record included absent deep tendon reflexes, an absent left ankle jerk, a 1+ right ankle jerk, reduced bilateral motor strength, and diagnoses of lumbar stenosis and degenerative disc disease. This evidence demonstrates mild, and not moderate, incomplete paralysis of the sciatic nerve. Accordingly, on and after September 26, 2003, the veteran is entitled to two separate 10 percent evaluations for the bilateral lower extremity neurological manifestations of a lumbar spine disability. The Board has also considered, throughout the applicable time periods, an increased evaluation under Diagnostic Code 5242, for degenerative arthritis of the spine, which is rated under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007). But as noted above, an increased evaluation is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, General Rating Formula. Conclusion The Board has also considered, throughout the applicable time periods, the provisions of 38 C.F.R. §§ 4.40, 4.45 (2007), addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. See also Deluca v. Brown, 8 Vet. App. 202, 206 (1995). The veteran consistently reported consistently severe low back pain that radiated into the bilateral extremities, left more than right. The veteran also consistently reported the use of a back brace, pain medication, sleep disturbance due to pain, left lower extremity weakness, and increased pain with prolonged sitting, rising, walking, bending, and lifting. The veteran denied flare-ups. The veteran reported that he had quit his most recent employment due to back and knee pain. He also stated that it was difficult to obtain relief and that his medication made him drowsy. Recently, the veteran reported that he had had 7 or 8 incapacitating episodes of back pain in the past year. The objective medical evidence of record demonstrated that the veteran was ambulatory with a rollator, had moderate muscle strength, was independent in his activities of daily living, and had no muscle atrophy. Additionally, a VA examiner found no additional limitation of motion upon repetition. Thus, although there is substantial evidence of functional impairment, the evidence also demonstrated that the veteran's muscle strength was not markedly decreased and there was no additional limitation of motion due to use. The veteran is not entitled to an increased evaluation based on these provisions because the evidence of record shows no additional functional impairment, fatigability, incoordination, weakness, or pain beyond that already contemplated within the assigned 40 and 60 percent evaluations. 38 C.F.R. §§ 4.40, 4.45; see also Deluca, 8 Vet. App. at 206. The Board has also considered the issue of whether the veteran's lumbar spine disability presents an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b) (2007); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this regard, the Board notes that the evidence does not show that the lumbar spine disability interfered markedly with employment beyond that contemplated in the assigned rating, nor does it warrant frequent periods of hospitalization, or otherwise render impractical the application of the regular schedular standards. The evidence of record demonstrates that the veteran quit his job due to shoulder and back pain and lay statements indicate difficulty with training courses due to back and shoulder pain, but does not demonstrate marked interference or an unusual disability picture such that the regular standards have been made impractical. The evidence of record does not contain evidence of frequent hospitalizations due to the lumbar spine disability. The evidence of record does not show any hospitalization for the lumbar spine disability. In the absence of any additional factors, the RO's failure to consider referral of this issue for consideration of an extraschedular rating did not prejudice the veteran. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claims for ratings in excess to those assigned herein, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to September 23, 2002, a rating of 60 percent, but no more, for a lumbar spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. On and after September 23, 2002, an evaluation in excess of 40 percent for a lumbar spine disability is denied. On and after September 23, 2002, a 10 percent evaluation for right lower extremity neurological symptoms due to a lumbar spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. On and after September 23, 2002, a 10 percent evaluation for left lower extremity neurological symptoms due to a lumbar spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Under the Veterans Claims Assistance Act of 2000, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to assist includes a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Although a March 2007 VA examination was provided, the Board finds that the examination was inadequate. The examiner found that there was no current acute or chronic nose or sinus disease and thus did not provide a nexus opinion. But there were several diagnoses of chronic sinusitis or acute sinusitis during the time period that the veteran's claim was pending. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that a current disability exists if a diagnosed disability is present at any time during the processing of the claim); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (holding that service connection requires a current disability, evidence of in-service incurrence, and a nexus between the current disability and active service). Accordingly, a medical opinion must be obtained clarifying whether there is a relationship between any previously diagnosed sinus disorder and active service. Accordingly, the case is remanded for the following action: 1. The RO must obtain a nexus opinion from the same examiner who conducted the March 2007 nose and sinus examination. If the same examiner is not available, the RO must provide the veteran with an appropriate VA examination. The entire claims file must be made available and reviewed by the VA examiner, and a nexus opinion offered regarding the etiology and onset of any sinus disability. All pertinent symptomatology and findings must be reported in detail. A complete rationale for all opinions must be provided. The examiner must state whether any current or previous sinus disorder is related to the veteran's military service or to any incident therein. If the examiner cannot provide the above requested opinion without resort to speculation, it must be so stated. The report prepared must be typed. 2. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs