Citation Nr: 0812973 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 97-03 847A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for traumatic arthritis of the cervical spine with radiculopathy. 2. Entitlement to an initial disability rating in excess of 20 percent for bulging lumbar discs with arthritis for the period beginning April 23, 2002. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active military service from September 1969 to May 1971 and from January 1991 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which granted service connection (10 percent) for bulging discs and traumatic arthritis of the lumbosacral spine and granted an increased (20 percent) rating for traumatic arthritis of the cervical spine with radiculopathy. This appeal also arises from a July 2000 rating decision that, in pertinent part, denied entitlement to TDIU. The Board remanded the case in May 2006. The remanded issues included entitlement to service connection for tinnitus. The Board requested development of the claims and issuance of a statement of the case (SOC) discussing the denial of service connection for tinnitus. In October 2006, the Appeals Management Center (AMC) issued an SOC discussing tinnitus; however, because the veteran failed to file a VA Form 9, Substantive Appeal, the AMC administratively closed that appeal. Because the veteran did not submit a substantive appeal, the Board lacks jurisdiction to address entitlement to service connection for tinnitus. In its May 2006 decision, the Board granted a 20 percent rating for the lumbar spine for the earlier period (prior to April 23, 2002) and remanded for the latter period for more development. Thus, only the latter period need be addressed in this decision. On Page 1 of the May 2006 Board decision, the Board erroneously listed the cervical spine issue as arising from the initial rating after service connection was granted. This has been corrected to reflect that the current appeal arises from a claim for an increased rating for the cervical spine. The lumbar spine rating issue has also been amended on page 1 of this decision to reflect that it did arise from the initial rating granted after service connection was established. Entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ) via the AMC in Washington, D.C. FINDINGS OF FACT 1. For the entire appeal period, traumatic arthritis of the cervical spine has been manifested by severe intervertebral disc syndrome with persistent bilateral upper extremity neuropathy, characteristic pain, diminished deep tendon reflexes, and numbness and weakness in the arms and hands with intermittent relief. 2. For the entire appeal period, lumbar degenerative disc disease and arthritis have been manifested by severe intervertebral disc syndrome with persistent bilateral lower extremity sciatica, characteristic pain, diminished and unequal deep tendon reflexes, and numbness and weakness in the feet and legs with intermittent relief. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 40 percent schedular rating for intervertebral disc syndrome of the cervical spine are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (2003). 2. Beginning on September 23, 2002, the criteria for a 30 percent schedular rating for intervertebral disc syndrome- related left upper extremity neuropathy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.123, 4.124, 4.124a, Diagnostic Code 8515 (2007). 3. Beginning on September 23, 2002, the criteria for a 20 percent schedular rating for intervertebral disc syndrome- related right upper extremity neuropathy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.123, 4.124, 4.124a, Diagnostic Code 8515 (2007). 4. For the entire appeal period beginning April 23, 2002, the criteria for a 40 percent schedular rating for intervertebral disc syndrome of the lumbar spine are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (2003). 5. Beginning on September 23, 2002, the criteria for a 20 percent schedular rating for intervertebral disc syndrome- related left lower extremity neuropathy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2007). 7. Beginning on September 23, 2002, the criteria for a 20 percent schedular rating for intervertebral disc syndrome- related right lower extremity neuropathy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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) and VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b) (1). Notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran challenges the initial evaluation and/or effective date assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify regarding the initial grant of service connection has been satisfied. Regarding the increased rating claim, a May 2006 letter was sent to the veteran that satisfied all notice requirement. The RO readjudicated the issues on appeal and issued a supplemental statement of the case in June 2007. For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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 simply demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, VA's 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-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, at 43-44. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held, in part, that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present case, the unfavorable decision that is the basis of this appeal had been decided and appealed prior to the enactment of the current section 5103(a) requirements in November 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, VA did not err in not providing such notice. Rather, the claimant has the right to a content-complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary notice and development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained all pertinent evidence to the extent possible. The claimant was afforded VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2007). The Court has held that unlike in claims for increased ratings, "staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Court also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Cervical Spine Prior to the current appeal period, cervical myositis with spondylosis was rated 10 percent disabling under Diagnostic Code 5295. The appealed September 1996 rating decision granted an increased (20 percent) rating for cervical spine arthritis effective from March 4, 1994, the date that the RO received a request for an increase, and recoded the disability under Diagnostic Code 5290. In a September 2006 rating decision, VA's AMC recoded the neck disability under Diagnostic Code 5293, Intervertebral disc syndrome, but continued the 20 percent disability rating effective from March 4, 1994. The Board will consider Diagnostic Codes 5290, 5293, and 5243, as these are the diagnostic codes that are pertinent during the appeal period. The Board will not consider Diagnostic Code 5295, as that code pertains to lumbosacral strain. The current appeal period for the neck began in March 1994, when the veteran requested an increased rating. In the appealed September 1996 rating decision, the RO assigned a 20 percent rating under Diagnostic Code 5290. Under Diagnostic Code 5290, evaluations from 10 to 30 percent are available for limitation of motion of the cervical spine. Limitation of motion of the cervical spine warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a maximum of 30 percent when shown to be severe. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Under the rating criteria of Diagnostic Code 5293, a 10 percent evaluation is assigned for mild intervertebral disc syndrome. A 20 percent rating is assigned for moderate intervertebral disc syndrome, defined as "recurring attacks." A 40 percent rating is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation is warranted 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 (2003). A November 1994 VA orthopedic compensation examination report reflects complaints of neck pain radiating to the left arm and hand. The veteran complained of both weakness and numbness of the left arm and hand. A private electromyography (EMG) study confirmed left C5 radiculopathy. The examiner reported the limits of motion of the neck, but cautioned that there was objective evidence of pain with all movements. Range of motion was to 30 degrees of forward flexion, to 20 degrees of backward extension, to 23 degrees of right and left lateral bending, and to 45 degrees of right rotation and 40 degrees of left rotation. Left brachioradialis muscle reflex was diminished, consistent with a C-6 lesion. Also found was weakness in left wrist flexion, left hand-grasp and left dorsal interosseous muscles. Muscle strength was 4/5. The left dorsal interosseous muscle was visibly atrophied. The diagnoses were left C6 radiculopathy; left C4-C5 herniated nucleus pulposis by computerized tomography (CT) scan; cervicolumbar paravertebral muscle fibromyositis; and left C5 radiculopathy. In April 1997, F. Sam, M.D., reported cervical pain radiating to the upper extremities with associated weakness and numbness, worsening since several years ago. July 1997 private X-rays showed straightening of cervical lordosis suggestive of paravertebral muscle spasm. An April 2002 VA compensation examination report notes a complaint of mild cervical pain radiating to the posterior arms and elbows. Numbness of the hands occurred in the mornings. Activities caused increased symptoms. The veteran reportedly had not worked for four years. Range of motion was to 30 degrees of forward flexion, to 0 degrees of backward extension, to 30 degrees of right and left lateral bending, and to 50 degrees of rotation, right and left. The examiner found no evidence of painful motion, muscle spasm, or weakness. Upper extremity reflexes were absent, bilaterally, but brachioradialis muscle reflexes were 1+, bilaterally. The diagnoses were cervical spine traumatic arthritis with radiculopathy; mild central canal stenosis at C4-6; mild foraminal narrowing at C5-6 due to spur; and, small C3-C4 mild disk bulge without significant stenosis. A November 2006 VA orthopedic compensation examination report reflects complaints of cervical pain radiating to both upper extremities six to eight hours per day. The veteran obtained mild pain relief through medication, heating pad, and a transcutaneous electrical nerve stimulation (TENS) device. Painful flare-ups occurred weekly. Activities caused pains. He could stand for only 10 minutes. He denied bowel or bladder trouble. He did not deny weakness, numbness, malaise, or dizziness, however. He last worked in 1992 due to neck and lumbosacral pains. Range of motion was to 40 degrees of forward flexion, but to only 30 degrees painlessly; to 30 degrees of backward extension, but to 20 degrees painlessly; to 25 degrees of right and left lateral bending, but 15 degrees painlessly; and to 50 degrees of rotation, right and left, but to 40 degrees painlessly. The examiner found additional functional limitation due to painful flare-ups that would approximate 5 degrees additional range of motion loss in forward flexion, 10 degrees loss of extension; 20 degrees loss of lateral bending; and 30 degrees loss in rotation. The neurology portion of the November 2006 VA compensation examination report reflects evidence of decreased pinprick sensation in both upper extremities. The examiner felt that motor strength was full. Upper extremity reflexes were absent, bilaterally, but brachioradialis muscle reflexes were 2+, bilaterally. The diagnoses relevant to the cervical spine were cervical strain-myositis, cervical degenerative joint disease, and cervical radiculopathy. The various manifestations mentioned above do not clearly indicate significant worsening or improvement during the appeal period. Range of motion, which is severely impaired, has stayed nearly the same, although the recent examination report distinguishes between painful and pain-free range of motion and mentions additional functional loss. Bilateral upper extremity radiculopathy has persisted throughout the appeal period. Although the November 1994 VA examination report notes only left upper extremity neuropathy, in April 1997, Dr. Sam mentioned several years of bilateral radiculopathy. Since the November 1994 examination, each VA examiner has agreed that bilateral upper extremity radiculopathy is shown. Because the symptoms have been persistent, because neuropathy is clearly shown, and because there has been little intermitted relief, the criteria of a 40 percent rating under Diagnostic Code 5293 are more nearly approximated throughout the appeal period. 38 C.F.R. § 4.7. The medical evidence does not show pronounced intervertebral disc syndrome with little intermittent relief throughout the appeal period. Therefore, a 60 rating under Diagnostic Code 5293 is not warranted. Because Diagnostic Code 5290 does not offer a higher rating, no further analysis is necessary. For the entire appeal period, a 40 percent rating must be considered for cervical spine intervertebral disc syndrome. Rating Period Beginning September 23, 2002 Effective September 23, 2002, the rating criteria for intervertebral disc syndrome were revised. Beginning on that date, intervertebral disc syndrome may be evaluated based on incapacitating episodes as follows: Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months....................................................... ..60 percent With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months......40 percent With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months................20 percent With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12months......................10 percent 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, evaluate each segment 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. 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. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2007). Neuralgia-cranial or peripheral-is usually characterized 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. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2007). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral combine with application of the bilateral factor. Diagnostic Code 8515 is analogous to the neurologic deficits because the anatomical area of the neurologic deficits more nearly approximates the level of disability produced by median nerve neuropathy when considering functional impairment, anatomical location, and symptomatology. 38 C.F.R. § 4.20. Keeping in mind that wholly sensory manifestations warrant a rating for mild, or at most, a moderate disability, the involvement shown in this case is both sensory and motor. Therefore, the Board will consider a moderate or greater disability rating. Complete paralysis of the median nerve results in the hand inclined to the ulnar side (away from the thumb), the index and middle fingers more extended than normally, considerable atrophy of the thenar eminence, the thumb in the plane of the hand (ape hand), pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm, flexion of wrist weakened, pain with trophic disturbances. Complete paralysis warrants a 70 percent rating for the major hand and 60 percent for the minor hand (the veteran's service medical records reflect that the left hand is dominant). Incomplete severe paralysis of the major hand warrants a 50 percent rating and a 40 percent rating for the minor hand. Incomplete moderate paralysis of the major hand warrants a 30 percent rating and a 20 percent rating for the minor hand. Incomplete mild paralysis of either hand warrants a 10 percent rating. 38 C.F.R. § 4.124(a), Diagnostic Code 8515 (2007). Because motor deficits with muscle atrophy and sensory deficits are shown, the Board may choose between incomplete mild paralysis, incomplete moderate paralysis, and incomplete severe paralysis. Because bilateral upper extremity weakness has been described and left dorsal interosseous muscle atrophy was seen by a physician, the neurologic deficits of each upper extremity more nearly approximate moderate incomplete paralysis. Therefore, a separate a 30 percent neurologic rating under Diagnostic Code 8515 must be considered for the dominant left upper extremity and a separate 20 percent rating must be considered for the non- dominant right upper extremity for the appeal period beginning on September 23, 2002. Thus, for the period beginning on September 23, 2002, the Board will grant a separate 30 percent rating under Diagnostic Code 8515 for the left upper extremity, and a separate 20 percent rating for the right upper extremity. On September 26, 2003, additional revisions to the rating schedule became effective. Under the new rating criteria, the diagnostic code numbers changed. Spine disabilities are now rated under the General Rating Formula for Diseases and Injuries of the Spine set forth as follows: 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003) 5243 Intervertebral disc syndrome Under this revised schedule, the criteria for a rating based on duration of incapacitating episodes over the past 12 months remain the same. Also unchanged is the procedure for combining, under 38 C.F.R. § 4.25, separate evaluations of the chronic orthopedic and neurologic manifestations; however, the following new rating criteria were added: (For diagnostic codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 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 Unfavorable ankylosis of the entire spine.........................................................100 Unfavorable ankylosis of the entire thoracolumbar spine.................................... ...............................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine............................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 30 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.. 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height................................... ......................................10 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 are zero to 45 degrees, and left and right lateral rotation are 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 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 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. These changes have recoded intervertebral disc syndrome under Diagnostic Code 5243 and added a new formula for rating limitation of motion of the cervical spine that was not available prior to September 26, 2003. Because the rating schedule requires that ankylosis be shown for a higher rating, the most recent rating criteria do not provide a rating higher than that already granted. The evidence does not contain factual findings that demonstrate distinct time periods during the period beginning on September 23, 2002, in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings. The assignment of staged ratings is therefore unnecessary. Hart, supra. Lumbar Spine Rating Beginning April 23, 2002 The AMC has assigned a 20 percent rating under Diagnostic Code 5293 for lumbar spine intervertebral disc syndrome for this period. As noted previously, ratings for intervertebral disc syndrome range from 10 to 60 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Reviewing the pertinent medical evidence, an April 2002 VA compensation examination report notes a complaint of moderate localized low back pain radiating to the legs and calves and sciatica down the legs causing tingling and numbness of the lower extremities. The veteran controlled low back pain with Flexeril(r) and naproxen. Activities caused increased symptoms. He used a one-point cane for support and could not perform some home chores (yard work, painting, shoveling) because of back pain. Range of motion was to 30 degrees of forward flexion, to 20 degrees of backward extension, to 30 degrees of right and left lateral bending, and to 30 degrees of rotation, right and left. The examiner found no evidence of painful motion or muscle spasm, but did find weakness. Both ankle dorsiflexor muscles were weak. Both extensor longus and tibialis anterior muscles were also weak (4/5). The examiner noted that 5/5 strength would be normal for this veteran. Neurologically, the straight leg raising test was positive on the left leg. Ankle and knee jerks were only +1, bilaterally. The diagnoses were lumbar disc bulging and circumferential bulging disk at L3-4, L4-5, and L5-S1 with arthritis of apophyseal joints at L5-S1 on the left, as shown on computed tomography (CT) scan of December 1994. In August 2002, A. Martinez, M.D., certified that the veteran's back pains were due to herniated L4 and L5 disks and foraminal stenosis. Standing, sitting, and prolonged walking impacted his radiculopathy. An August 2004 magnetic resonance imaging (MRI) showed spondylitic changes and degenerative disc disease with herniation at L5-S1. An August 2006 electromyograph (EMG) showed bilateral L4, L5, and S1 radiculopathy. A November 2006 VA orthopedic compensation examination report reflects complaints of lumbar pain radiating to both lower extremities six to eight hours per day. The veteran obtained mild pain relief through medication, heating pad, and a TENS device. Painful flare-ups occurred weekly. Activities caused pains. He could stand for only 10 minutes. He denied bowel or bladder trouble. He did not deny weakness, numbness, malaise, or dizziness, however. He last worked in 1992 due to neck and lumbosacral pains. Range of motion was to 40 degrees of forward flexion, but to only 30 degrees painlessly; to 15 degrees of backward extension, but to 5 degrees painlessly; to 20 degrees of right and left lateral bending, but to 10 degrees painlessly; and to 15 degrees of rotation, right and left, but to 10 degrees painlessly. The examiner found additional functional limitation due to painful flare-ups that would approximate 50 degrees additional range of motion loss in forward flexion, 15 degrees loss of extension; 20 degrees loss of lateral bending; and 15 degrees loss in rotation. The examiner found paravertebral muscle tenderness, spasm, and reversed lumbosacral lordosis. Neurological examination showed decreased pinprick sensation in the left L5-S1 distribution, but the examiner felt that motor strength was full. Lower extremity reflexes were 1+ in the left leg and 2+ in the right. Lasèque's sign (distinguishes sciatica from hip joint disease, Dorland's Illustrated Medical Dictionary 1524 (28th ed. 1994)) was positive. The diagnoses were lumbosacral strain-myositis, lumbosacral degenerative joint disease, and lumbosacral radiculopathy. The various manifestations mentioned above do not clearly indicate significant worsening or improvement during the appeal period. Range of motion of the lumbar spine is severely impaired when considering the pain-free ranges of motion and the DeLuca factors. The recent examination report distinguishes between painful and pain-free range of motion and mentions additional functional loss, which earlier examination reports did not do. Bilateral lower extremity radiculopathy has persisted throughout the appeal period. Because the symptoms have been persistent, because neuropathy is clearly shown, and because there has been little intermittent relief, the criteria of a 40 percent rating under Diagnostic Code 5293 are more nearly approximated throughout the appeal period. 38 C.F.R. § 4.7. The medical evidence does not show pronounced intervertebral disc syndrome with little intermittent relief throughout the appeal period. Therefore, a 60 rating under Diagnostic Code 5293 is not warranted. Beginning on September 23, 2002, however, we must determine whether the new rating criteria offer a rating greater than 40 percent. The new criteria include ratings for incapacitating episodes. In this case, none are shown. The new criteria also include consideration of separate ratings for neurological and orthopedic abnormalities. Because the evidence reflects that the criteria of a 40 percent rating are met under Diagnostic Code 5293, the Board need discuss only the potential for a rating greater than 40 percent. Considering the neurologic deficits attributed to the service-connected intervertebral disc syndrome, bilateral lower extremity numbness and weakness are reported by both medical and lay evidence. Below are some relevant rating criteria. Diagnostic Code 8520 is analogous to the neurologic deficits because the anatomical area of the neurologic deficits more nearly approximates the level of disability produced by sciatica when considering functional impairment, anatomical location, and symptomatology. 38 C.F.R. § 4.20. Keeping in mind that wholly sensory manifestations warrant a rating for mild, or at most, a moderate disability, the involvement shown in this case is both sensory and motor. Therefore, the Board will consider a moderate or greater disability rating. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires moderately severe incomplete paralysis. A 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124(a), Code 8520 (2007). Because motor deficits and sensory deficits are shown, the Board may choose between moderate incomplete paralysis, moderately severe incomplete paralysis, and severe incomplete paralysis. Because weakness about the ankles is shown, but there is no noticeable or "marked" muscle atrophy, the neurologic deficits of each lower extremity more nearly approximate moderate incomplete paralysis. Therefore, separate 20 percent neurologic ratings under Diagnostic Code 8520 must be considered for each lower extremity for that portion of the appeal period beginning on September 23, 2002. Thus, for the period beginning on September 23, 2002, the Board will grant two separate 20 percent ratings under Diagnostic Code 8520. The most recent changes to the rating schedule (effective on September 26, 2003) recoded intervertebral disc syndrome under Diagnostic Code 5243 and added a new formula for rating limitation of motion of the lumbar spine. Because the most recent change in rating criteria requires that ankylosis be shown for a higher rating, the most recent rating criteria do not provide a rating higher than that already granted. The Board has also considered whether it is appropriate to assign "staged ratings," in accordance with Fenderson, supra. The evidence does not contain factual findings that demonstrate distinct time periods in which the service- connected disability exhibited diverse symptoms meeting the criteria for different ratings. The assignment of staged ratings is therefore unnecessary. Fenderson, supra. Extraschedular Consideration The case for schedular or extraschedular TDIU is addressed in the remand portion of the decision. ORDER For the entire appeal period, a 40 percent schedular rating for severe intervertebral disc syndrome of the cervical spine is granted, subject to the laws and regulations governing payment of monetary benefits. For the period beginning on September 23, 2002, a separate 30 percent schedular rating for left upper extremity neuropathy is granted. For the period beginning on September 23, 2002, a separate 20 percent rating for right upper extremity neuropathy is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire appeal period, a 40 percent schedular rating for severe intervertebral disc syndrome of the lumbar spine is granted, subject to the laws and regulations governing payment of monetary benefits. For the period beginning on September 23, 2002, a separate 20 percent schedular rating for left lower extremity neuropathy is granted. For the period beginning on September 23, 2002, a separate 20 percent rating for right lower extremity neuropathy is granted, subject to the laws and regulations governing payment of monetary benefits. REMAND The November 2006 VA orthopedic compensation examination report contains a medical opinion that clearly attributes inability to work to service-connected disabilities. Because the Board lacks jurisdiction to grant extraschedular TDIU in the first instance and because the Board's grant of a schedular TDIU could have a preclusive effect on an early portion of the appeal period, the appeal for TDIU is remanded to the RO for schedular and extraschedular consideration in accordance with 38 C.F.R. § 4.16(a), (b), and with 38 C.F.R. § 3.321(b). Accordingly, the case is REMANDED for the following action: The AOJ should consider entitlement to a TDIU due to service-connected disabilities in light of the higher schedular ratings granted herein. For any portion or portions of the appeal period that the AOJ does not grant TDIU, the AOJ should submit that portion of the appeal to the Director, Compensation and Pension Service, for extraschedular consideration, in accordance with 38 C.F.R. § 4.16 (b) and § 3.321 (b). Following that action, if the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs