Citation Nr: 0811644 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-02 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from October 1943 to April 1946. He received the Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which, in pertinent part, granted an increased rating of 20 percent for lumbosacral strain, effective July 31, 2003. In his substantive appeal the veteran made contentions, which could be construed as a claim for service connection for depression, as secondary to the service connected back disability. This claim is referred to the RO for adjudication. FINDINGS OF FACT 1. Throughout the claims period, the veteran's lumbosacral strain has been manifested by moderate limitation of motion with forward flexion to at least 40 degrees; there is no evidence of severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a 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. 2. The lumbar spine disability has not resulted in any incapacitating episodes necessitating bed rest prescribed by a physician. 3. Throughout the entire claims period, the veteran has had at worst, moderate incomplete paralysis of the right sciatic nerve. CONCLUSIONS OF LAW 1. The schedular criteria for rating in excess of 20 percent for lumbosacral strain based on its orthopedic manifestations or under criteria in effect prior to September 26, 2003, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.14, 4.40, 4.45,4.71a, Diagnostic Codes 5292, 5293, 5295, 5235-5243 (2003 & 2007). 2. The veteran's low back disability warrants a separate disability rating of 20 percent rating for its neurologic manifestations, based on impairment of the right lower extremity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a letter issued in November 2003, prior to the initial adjudication of the claim, the RO notified the veteran of the evidence needed to substantiate his claim for an increased rating. The letter also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, although the RO did not specifically request that the appellant submit all pertinent evidence in his possession, it did inform him of the evidence that would be pertinent and requested him to submit such evidence or provide VA with the information and authorization necessary for VA to obtain the evidence on the veteran's behalf. These statements served to advise the veteran to submit any evidence in his possession pertinent to the claim on appeal. The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) The veteran has substantiated his status as a veteran and was notified of the second and third elements of Dingess notice by the November 2003 letter. Any notice error will be presumed prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication and persuade the Court that the purpose of the notice was not frustrated, for example by demonstrating "(1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law." Sanders v. Nicholson, 487 F.3d 881, 888-9 (Fed. Cir. 2007), George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007). While he has not received specific VCAA notice regarding the disability rating and effective date elements of his claim, as discussed below he did receive actual notice with regard to the rating element. No effective dates are being set in this case. Therefore, the veteran is not prejudiced by the notice defects on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held that, at a minimum, adequate VCAA notice in increased rating cases requires: (1) that VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The July 2003 letter told the veteran that to substantiate the claim, he should submit evidence showing that the disability had worsened. It also provided examples of the types of evidence that he could submit or ask VA to obtain. Some of the relevant rating criteria for back disabilities are based on specific measurements. The December 2003 rating decision and May 2004 statement of the case included the rating criteria including the necessary measurements for increased ratings for back disabilities. While such post adjudication notice cannot serve as VCAA notice, Pelegrini II; it should have served to put a reasonable person on notice of the specific measurements needed to substantiate the claim, and that if an increased rating was provided a percentage evaluation would be provided under a diagnostic code. The December 2003 VA examiner asked the veteran about the effect of his disability of his work and daily life. The veteran noted that he was retired from his job, and that his low back condition did not affect his activities of daily living, but that he could not bowl or golf secondary to his back pain. The veteran had a reasonable opportunity to participate in the adjudication of his claims, inasmuch as it remained pending for years after the rating decision and SOC. The veteran was accordingly made aware of the requirements for increased evaluations pursuant to Vazquez-Flores. The veteran has not received VCAA notification that he should submit evidence demonstrating the effect his disabilities have had on his employment and daily life. He has demonstrated actual knowledge that evidence of the impact of his disabilities on employment and daily life, could substantiate his claim. For example, in a January 2005 amended Form 9, the veteran noted that he was unable to bowl, golf, or garden due to his low back pain and that he had to sleep on the floor or in a chair due to pain. On the VA examination he was asked about his employment. The veteran also specifically referenced the former and current criteria for rating the spine and stated that the Board should consider how his lumbosacral strain has affected his physical activities. The Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Vazquez-Flore, 22 Vet. App. 37 at 48, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The veteran has shown actual knowledge of the relevance of the disability's impact on his daily life. Additionally, the November 2003 VCAA letter provided notice on the fourth element of Vazquez-Flores notice by providing examples of evidence the veteran could submit or ask VA to assist in obtaining. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. Additionally, the veteran was provided a proper VA examination in December 2003 for his lumbosacral strain. The veteran has not contended that his disability has worsened since that time. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). 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 evaluation will be assigned. 38 C.F.R. § 4.7 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. VA changed the rating criteria for back disabilities during the course of this appeal. A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). VA's General Counsel had previously summarized the proper analysis as follows: First, the Board must determine, on a case-by-case basis, whether the amended regulation is more favorable to the claimant than the prior regulation. Second, if it is more favorable, the Board must, subsequent to the effective date of the liberalizing law under 38 U.S.C. § 5110(g), apply the more favorable provision to the facts of the case, unless the claimant would be prejudiced by the Board's actions in addressing the revised regulation in the first instance. Third, the Board must determine whether the appellant would have received a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation, including for the periods both prior to and after the effective date of the change in law. VAOPGCPREC 3- 2000 (2000); 65 Fed. Reg. 33422(2000) The Federal Ciruit has created a three-part test to determine whether a new law has prohibited retroactive effects: (1) "the nature and extent of the change of the law;" (2) "the degree of connection between the operation of the new rule and a relevant past event;" and (3) "familiar considerations of fair notice, reasonable reliance, and settled expectations." Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005). If, under this test, a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation. Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. (2008). The General Counsel had previously summarized the proper analysis as follows: First, the Board must determine, on a case-by-case basis, whether the amended regulation is more favorable to the claimant than the prior regulation. Second, if it is more favorable, the Board must, subsequent to the effective date of the liberalizing law under 38 U.S.C. § 5110(g), apply the more favorable provision to the facts of the case, unless the claimant would be prejudiced by the Board's actions in addressing the revised regulation in the first instance. Third, the Board must determine whether the appellant would have received a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation, including for the periods both prior to and after the effective date of the change in law. VAOPGCPREC 3- 2000 (2000); 65 Fed. Reg. 33422(2000) Under the criteria of Diagnostic Code 5293, effective between September 23, 2002, and September 26, 2003, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.26 (combined rating tables) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, which ever method results in the higher evaluation. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and a 10 percent evaluation is assigned with the incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Under the criteria in effect prior to September 26, 2003, lumbosacral strain warrants a noncompensable evaluation if there are slight subjective symptoms only. A 10 percent evaluation is warranted if it is manifested by characteristic pain on motion. With muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position, a 20 percent evaluation is warranted. A 40 percent evaluation is warranted for severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a 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 (2003). Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 40 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). The basis of disability evaluation 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. Under the criteria effective September 26, 2003, back disabilities other than intervertebral disc disease are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (2007). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined above), 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 (2007). Under the general rating formula for rating diseases and injuries of the spine, effective September 26, 2003, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. These provisions are not, however, for consideration where, as in this case, the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Disability involving a neurological disorder is ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a (2007). Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2007). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background Service connection for a contusion of the back was granted in a May 1946 rating decision and a 10 percent rating decision was assigned, effective April 16, 1946. In a December 1947 rating decision, the disability was recharacterized as a lumbosacral strain. An increased rating of 20 percent was granted in the December 2003 rating decision on appeal, effective July 31, 2003. In support of his claim, the veteran submitted records of private treatment dated August and September 2001. In August 2001 he stated that while cleaning the gutters, he noticed pain from his back radiating down his right leg. Physical examination showed a straight spine. Flexion was to 70 degrees, with some tightness in the right buttock. Extension was to 10 degrees, and lateral bending was to 5 degrees. Sensation to the monofilament was decreased on the right compared to the left. The diagnosis was lumbar strain with some mild sciatica. The veteran underwent physical therapy for his low back and right leg pain. In response to his claim for an increased rating, the veteran was provided a VA examination of his lumbar spine in December 2003. He reported that he was currently retired from his job and that he treated his pain with over-the-counter medications. He stated that he had chronic constant pain of the low back with intermittent exacerbations throughout the day. The veteran reported that he had a period of incapacitation for three weeks in November 2001. He did not think that a physician had prescribed bedrest at that time. He stated that he had stiffness and pain that worsened in moments of activity. The veteran also reported that he experienced radiating pain down his right leg. His basic activities of daily living, such as dressing and toileting, did not cause increased pain. The veteran stated that he was unable to bowl or golf due to low back pain. Upon physical examination, the veteran was noted to have a normal gait. There was tenderness to palpation in the right lumbosacral area and to the upper superior ischial right hip. Flexion was to 45 degrees, absent 45 degrees of flexion secondary to stiffness and increased pain. Lateral flexion was to 20 degrees to the left and right with a pulling sensation at the endpoint. Extension was to 20 degrees, absent 10 degrees of backward extension secondary to increased pain. The veteran was able to rotate to 30 degrees bilaterally with a pulling sensation at the endpoint. Straight leg raising was positive at 50 percent bilaterally. He reported having radiating pain down the right leg, but neurological examination was normal. The examiner noted that the veteran was provided an MRI of the lumbar spine at the VA Medical Center (VAMC) in June 2003 that showed multilevel possible herniated discs with bulging discs and spinal stenosis. The diagnosis was status post injury lumbosacral spine with residual bulging and herniation per recent MRI. Records of outpatient treatment at the VAMC show that the veteran was noted to have mild increased tenderness of the lumbar spine upon deep palpation in May 2003. An MRI was performed in June 2003 that showed disc bulging and herniation as well as mild spinal stenosis and possible compression of the left and right nerve roots. Additional records of private treatment indicate that the veteran was seen in February 2004 with complaints of low back pain following an injury a week earlier. Physical examination revealed that his spine was definitely in spasm and his back was "pretty crooked." The doctor found that it looked like the veteran's right hip was displaced. Lateral flexion was to 20 degrees to the right, but upon lateral flexion to the left, the veteran grabbed his back. He could bend over approximately 40 degrees. The diagnosis was low back strain with spasm. Two months later in April 2004, the veteran reported that he was doing well overall, and a neurological examination was normal. The physician noted that the June 2003 MRI at the VAMC showed moderate stenosis at L3-4. The veteran also received treatment with a chiropractor who noted in June 2004 that that veteran had mechanical pain of the lumbosacral spine, as well a spasms and right sacroiliac pain. On VA outpatient treatment in August 2004, the veteran reported that he was able to do most activities that he enjoyed. He was noted to have diminished right knee jerk, a 2+ left knee jerk, and 1+ reflex in the ankles. Motor strength was preserved in the lower extremities, and straight leg raising was negative. He could heel and toe walk without difficulty. His physician noted that most of his limitations from the back disability seemed to be related to landscaping and outdoor gardening. Analysis The veteran was assigned a 20 percent disability rating effective July 31, 2003, the date on which he was found to have submitted a claim for increase. Therefore, both the current and former criteria for rating disabilities of the spine are applicable to his claim for an increased rating. The 2003 MRI showed multilevel herniated and bulging discs. Hence, it is appropriate to consider rating the veteran's disability under the intervertebral disc criteria. While he veteran reported having an exacerbation of low back symptoms that incapacitated him in November 2001, there is no evidence that he has ever experienced periods of incapacitation requiring bedrest prescribed by a physician. Therefore, he is not entitled to an increased rating on that basis. Diagnostic Code 5243, 5283. With respect to the criteria for rating the spine in effect prior to September 26, 2003, the veteran Medical evidence establishes that the low back disability is productive of limitation of motion that more nearly approximates moderate than severe. In this regard, the Board notes that the veteran's most limited movement of the spine was noted at his December 2003 VA examination and February 2004 private evaluation when flexion was to 40 degrees. The combined range of motion in December 2003 was to 165 degrees. For VA purposes, normal range of motion of the thoracolumbar spine is flexion to 90 degrees and a combined range of motion to 240 degrees. 38 C.F.R. § 4.71, Plate V (2007). Even with consideration of functional factors such as pain, the veteran has been retained approximately half of the normal range of forward flexion. 38 C.F.R. § 4.40, 4.45. With regard to the old criteria for rating lumbosacral strain, the June 2003 MRI provides evidence of disc space narrowing. The evidence does not show listing of the whole spine to the opposite side. The February 2004 does show that the spine was crooked; this finding was during an acute exacerbation of symptoms following a back injury. The December 2003 examination showed no spinal structural abnormalities and a normal gait. In August 2004, he again had a normal gait and was "well appearing." The veteran has moderate limitation of forward bending, and has reportedly been engaging in some fairly rigorous activity such as leaf raking and cleaning gutters. There is no evidence of marked limitation of forward bending in a standing position. In addition, while he had some limitation of forward bending, it was not marked as the veteran was able to bend to 40 degrees. Therefore, for the period of this claim prior to September 26, 2003, the disability does not warrant more than a 20 percent evaluation under Diagnostic Code 5292 or 5295. See 38 C.F.R. § 4.71a, 5292, 5295 (2003). With respect to the current general formula for rating diseases and injuries of the spine, it is clear from the medical evidence of record that while the veteran has manifested limitation of motion, he retains some useful motion of his lumbar spine and therefore his disability does not most nearly approximate favorable ankylosis of the entire thoracolumbar spine as required for a 40 percent disability evaluation. The veteran has stated that he experiences physical limitations due to his low back pain such as an inability bowl, golf, or garden, but the medical evidence of record is negative for evidence of ankylosis. In addition, the December 2003 VA examiner noted that basic activities of daily living, such as dressing and toileting, did not cause the veteran increased pain. The Board notes that the veteran wrote in a June 2004 statement that during an exacerbation of symptoms in August 2001 he was unable to stand, walk, or movie his spine and that he was confined to a wheelchair. Records of private treatment from August 2001 show that the veteran was able to move his lumbar spine with flexion to 70 degrees, extension to 10 degrees, and lateral bending to 5 degrees. Therefore, even when all pertinent disability factors are considered, it is clear that the veteran's low back disability has not most nearly approximated favorable ankylosis of the entire thoracolumbar spine at any time throughout the claims period. Accordingly, a disability rating in excess of 20 percent based on the current criteria for rating the spine is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (2007). The medical evidence does support a separate 10 percent rating for impairment of the right lower extremity. The veteran has reported occasionally radiating pain. On occasion he has had positive straight leg raising and a diminished knee jerk. Neuritis, cranial or peripheral, 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 which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. With these guidelines in mind, the record shows that the veteran's neurologic disability is characterized by periodic pain and diminished right knee jerk. He thus has organic changes, but his symptoms do not prevent him from engaging in a wide range of activities and are reportedly not constant. Given the presence of relatively mild symptomatology with organic findings, a rating based on moderate incomplete paralysis is appropriate. Given the level of symptomatology a rating based on moderate incomplete paralysis is not warranted. The Board has considered whether there is any other schedular basis for granting an increased evaluation in excess of those discussed above, but has found none. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against a finding that the back disability has approximated the criteria for a higher rating at any time during the appeal period. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Extraschedular consideration The rating schedule is generally deemed adequate to rate the severity of a disability. 38 C.F.R. § 3.321(a) (2007). In exceptional cases an extraschedular evaluation can be provided in the interest of justice. 38 C.F.R. § 3.321(b) (2007). The governing norm in such a case is that it presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impracical the application of regular schedular standards. In this case marked interference with employment has not been alleged or shown and the veteran's disability has not required any periods of recent hospitalization. Referral for consideration of an extraschedular rating is, therefore, not warranted. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 20 percent for the orthopedic component of lumbosacral strain is denied. A 20 percent rating for the neurologic component of the veteran's lumbosacral strain is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs