Citation Nr: 0813069 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 05-29 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased evaluation of L5-S1 herniated nucleus pulposus, status post laminectomy, with right S1 radiculopathy and lumbar paravertebral myositis (orthopedic manifestations), currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation of L5-S1 herniated nucleus pulposus, status post laminectomy, with right S1 radiculopathy and lumbar paravertebral myositis (neurological manifestations), currently evaluated as 10 percent disabling. 3. Entitlement to an increased evaluation for history of prostatitis currently evaluated as noncompensable. 4. Entitlement to an increased evaluation for depressive disorder, not otherwise specified, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from May 2001 until October 2001 and from April 2002 until April 2003 and service with the Army National Guard of Puerto Rico form May 2000 until June 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The record reflects complaints of pain in the testes and bowel incontinence which could be related to the lumbosacral spine condition. These matters have not been addressed and are therefore REFERRED to the RO for appropriate action. The issue of entitlement to an increased evaluation for depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran does not have unfavorable ankylosis of the entire thoracolumbar spine. 2. The veteran's low back disability is not productive of incapacitating episodes averaging a total duration of at least six weeks annually. 3. The veteran's neurologic impairment of the right lower extremity is not productive of moderate incomplete paralysis of the sciatic nerve. 4. The veteran's prostate disability is not manifested by a voiding frequency of between 2-3 hours during the day or more than 2 times per night; use of absorbent materials that must be changed less than 2 times a day; or evidence of obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with post void residuals greater than 150 cc, uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec), recurrent urinary tract infections secondary to obstruction or stricture disease requiring periodic dilatation every 2 or 3 months. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for the orthopedic manifestations of the L5-S1 herniated nucleus pulposus, status post laminectomy, with right S1 radiculopathy and lumbar paravertebral myositis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5010, 5021, 5243 (2004-2007). 2. The criteria for an evaluation in excess of 10 percent for the neurological manifestation of incomplete paralysis of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5243, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8620 (2007). 3. The criteria for a compensable evaluation for prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.115, Diagnostic Codes 7527, 7528 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA 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 is required to notify the claimant and his 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). Proper notice from 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 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). 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 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 review the information and the evidence presented with the claim and 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. Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran dated in October 2004 and March 2006 that fully addressed all notice elements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Dingess v. Nicholson, 19 Vet. App. 473 (2006). During the pendency of the appeal, however, the U.S. Court of Appeals for Veterans Claims held that for an increased- compensation claim, section § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. The veteran was not notified of the need to demonstrate the effect the worsening has on employment and daily life nor was he provided with the applicable schedular criteria prior to the initial adjudication of the claim as required by Vazquez- Flores. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 ("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.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this case, a letter dated in October 2004 advised the veteran to submit evidence his disabilities have worsened and indicated that he could submit findings from alternative sources including lay statements and laboratory findings. Furthermore, the veteran was provided with the specific criteria to warrant a higher rating under the applicable Diagnostic Codes in the January 2004 rating decision that initially granted service connection for the disabilities. Similarly, the veteran was notified of what the evidence must demonstrate for the next higher disability rating under the applicable Diagnostic Code in the August 2005 Statement of the Case. After this SOC the claims were readjudicated in a December 2005 Supplemental Statement of the Case. Based on the evidence above, the veteran can be expected to understand from the various letters from the RO what was needed to support his claim. Moreover, the veteran demonstrated actual knowledge of what was needed to support his claim as reflected in his statements and correspondence. Specifically, in his May 2005 Notice of Disagreement, the veteran indicated that his conditions rendered him unable to work. The veteran reiterated the fact that his service-connected conditions prevented him from working in the September 2005 Substantive Appeal (Form VA-9). These statements reflect the veteran had knowledge that the evaluation would be based upon the effect of his disabilities on his daily life and employment. Furthermore, the veteran submitted relevant VA medical records with his application for an increased evaluation. These medical records included treatment for orthopedic and neurological symptoms of the back including pain, range of motion findings and incapacitating episodes that would be used to evaluate the claim for an increased evaluation for a back condition. Similarly, the records included urinary symptoms used to evaluate prostatitis. Additionally, the Board notes the veteran has had representation throughout the duration of the appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). Thus, the Board finds the veteran meaningfully participated in the adjudication of his claims such that the essential fairness of the adjudication was not affected. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, proceeding with the appeals presently does not therefore inure to the veteran's prejudice. 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). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service medical records, VA outpatient treatment records and Army medical clinic records. The veteran submitted VA medical records and statements in support of his claim. The veteran was also afforded VA examinations in connection with his claim. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In fact, in September 2005 and December 2006 the veteran advised the RO he had no additional evidence to submit. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). The Merits of the Claim 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, 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. L5-S1 Herniated Nucleus Pulposus The RO initially granted service connection for an L5-S1 herniated nucleus pulposus, status post laminectomy, with right S1 radiculopathy and lumbar paravertebral myositis in January 2004. At that time a 40 percent evaluation was assigned for the orthopedic manifestations of the condition pursuant to 38 C.F.R. § 5021-5243. A separate 10 percent evaluation was granted for the neurological manifestations pursuant to 38 C.F.R. § 5243-8620. The veteran contends the current rating evaluation does not accurately reflect the severity of his disability. Specifically, in a September 2004 statement in support of claim, the veteran claimed that his service-connected lumbar spine disability had worsened. In view of the veteran's contention that his service- connected disability had worsened since the last rating decision, only the evidence obtained since the January 2004 rating decision will be considered consistent with the Court's decision in Francisco, supra. The Board notes that the issue of entitlement to an increased evaluation for the veteran's neurological signs and symptoms related to the lumbar spine condition is addressed below under separate heading. As noted above, the veteran's lumbar back condition was evaluated under Diagnostic Code 5021-5243 for myositis and intervertebral disc syndrome. Under 38 C.F.R. § 4.71a, DC 5021, myositis will be rated on limitation of the affected parts, as degenerative arthritis. Diagnostic Code 5003, in turn, evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes, in this case Diagnostic Code 5243. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion needs to be objectively shown by findings such as swelling, muscle spasm, or painful motion. Id. In the absence of limitation of motion, a 10 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is warranted with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joints with occasional incapacitating exacerbations. Id. Diagnostic Code 5243 mandates that the condition be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher evaluation. The General Rating Formula for Diseases and Injuries of the Spine assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 40 percent evaluation is for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is for assignment for unfavorable ankylosis of the entire spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) to the General Rating Formula explains that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Note (5) explains that unfavorable ankylosis is a condition in which the entire thoracolumbar 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 the spinal segment in neutral position (zero degrees) always represents favorable ankylosis. The Board must also consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes assigns a 40 percent evaluation for four to six weeks of incapacitating episodes during the past 12 months. A 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A note following the Diagnostic Code defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1. Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct. A May 2004 VA pain clinic evaluation reflected complaints of chronic low back pain with right leg numbness down to the foot. He described the pain as constant, cramping, burning and a "pins and needles" feeling in the right toes. Pain was also associated with muscle spasm. The veteran rated the pain as a 5 on a scale of 10 and indicated the most severe pain during the last month was a 6-7. Pain was relieved by standing, heat, stretching and lifting lower extremities in bed and medication. Sitting, standing, walking, coughing, sneezing, bending and lifting aggravated the pain. Pain interfered with sleep, social interaction, exercise, walking, working, self-care activities, intimate life and mood. Clinical examination reflected the veteran ambulated with Canadian crutches and had an impaired gait. The spine was symmetrical without evidence of atrophy, lesions or swelling. There was a well-healed lumbosacral scar. Straightening of the lumbar lordosis was noted. The spinal column was decreased. There was tenderness to palpation at the lumbosacral paravertebral muscles greater on the left side and at tender points. Flexion was found to 40 degrees with pain and extension was found to 10 degrees with pain. The veteran underwent a VA examination in November 2004 to assess the severity of the back disability. The veteran complained of worsening low back pain with increased intensity, decreased range of motion, constant pain associated with stiffness and tightness of low back pressure and sensation that radiated to the right lower extremity. He also described numbness of the lateral leg to digits 4 and 5. He described decreased ambulation secondary to the pain and flare-ups. The veteran used bilateral lofstrand crutches and a lumbosacral corset. He was able to walk for approximately 20 minutes and then had increased pain. He denied frequent falls or unsteadiness. The veteran was unemployed and indicated he occasionally needed assistance to dress lower body or bathe secondary to flare ups. Clinical examination reflected the veteran had an erect posture, symmetrical in appearance and rhythm. Range of motion findings revealed flexion to 49 degrees, extension to 7 degrees, bilateral lateral bending to 7 degrees and bilateral rotation to 35 degrees. Pain with flexion began at 38 degrees and continued to 49 degrees and pain on extension began at 7 degrees. There was no additional limitation based on fatigue, weakness or lack of endurance during the examination. There were spasms of the lumbar paravertebral muscles at L4-S1; however, no abnormal spinal contour was noted. There was no evidence of muscle spasm or guarding severe enough to result in abnormal gait, abnormal spinal contour. The examiner also indicated there was no evidence of postural abnormality or fixed deformity (ankylosis) or abnormality of the musculature of back. Other records reflected treatment at VA facilities, including physical therapy, pain clinic and treatment with a TENS unit. Additionally, a May 2004 VA functional assessment concluded the veteran used inadequate compensatory strategies to perform basic activities of daily living and required assistance with instrumental activities of daily living. The physician further noted that pain interfered with the veteran's leisure and activities of daily living and the veteran's fear of pain further limited participation in functional activities. Significantly, VA follow up records dated in July 2004 and October 2004 indicated the veteran's musculoskeletal system retained an intact range of motion. Records dated in March 2005, May 2006 and August 2006 described limited range of motion of the musculoskeletal system but failed to report findings in degrees of motion which could be applied to the Schedule for Rating Disabilities. A review of the evidence of record discloses that the veteran does not meet the criteria for a higher evaluation for the orthopedic manifestations of his low back condition. Specifically, there is no evidence of ankylosis of any kind to warrant an increased rating under the General Rating Formula for Diseases and Injuries of the Spine. In fact, the November 2004 VA examination specifically found there was no evidence of a fixed deformity, or ankylosis. Furthermore, all of the VA medical records demonstrated motion of the spine, albeit painful and limited. The Board acknowledges that the veteran has repeatedly complained of pain, stiffness, and tightness associated with his back disability. The record also reveals that the veteran has treated at the VA pain clinic and treated with physical therapy and a TENS unit. However, even factoring in the additional limitation in motion due to pain, the veteran still demonstrated motion of the spine. For example, during the November 2004 VA examination, the examiner estimated an additional 11 degrees of limitation in flexion due to pain. Thus, the veteran continued to have 38 degrees of motion without pain. Therefore, while the veteran has significant pain which limits his activities, this limitation does not more nearly approximate a finding of ankylosis of the entire thoracolumbar spine. Rather, the evidence clearly shows the veteran retained some motion in the back throughout the period on appeal. Therefore, an increased evaluation is not warranted. 38 C.F.R. § 4.45, 38 C.F.R. § 4.71a, Diagnostic Code 5243; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board similarly finds that the veteran is not entitled to a higher evaluation under the criteria for intervertebral disc syndrome. The evidence has not demonstrated that the veteran's lumbar spine disability has produced any incapacitating episodes during the past year. While the record reflects the veteran has been unemployed since his discharge from service; there is no indication in the medical records that a physician prescribed bed rest or that the veteran required treatment by a physician for acute signs and symptoms of intervertebral disc syndrome for a period of 6 weeks or more at any time during the course of the appeal. Given the function remaining in the veteran's lumbar spine, the criteria for a higher evaluation have not been met. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. While the veteran contends that the service-connected L5-S1 herniated nucleus pulposus, status post laminectomy with right S1 radiculopathy and lumbar paravertebral myositis has increased in severity, as a layperson he is only competent to report observable symptoms - not clinical findings which are applied to VA's Schedule for Rating Disabilities. Compare Espiritu v. Derwinski, 2 Vet. App. 492 (1992) and Massey v. Brown, 7 Vet. App. 204 (1994). Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the veteran, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). The Board finds that the evidence of record does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In the absence of such factors, the Board finds that the criteria for referral for assignment of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Neurological Manifestations As noted above, the RO initially granted service connection for L5-S1 herniated nucleus pulposus, status post laminectomy, with right S1 radiculopathy and lumbar paravertebral myositis in January 2004. At that time a separate 10 percent evaluation was granted for the neurological manifestations pursuant to 38 C.F.R. § 5243- 8620. The veteran contends the current rating evaluation does not accurately reflect the severity of his disability. Specifically, in a September 2004 statement in support of claim, the veteran claimed that his service-connected radiculopathy had worsened. In view of the veteran's contention that his service-connected disability had worsened since the last rating decision, only the evidence obtained since the January 2004 rating decision will be considered consistent with the Court's decision in Francisco v. Brown, 7 Vet. App. 55 (1994). As for neurological disabilities, evaluations are generally assigned based on whether the paralysis of a particular nerve was complete or incomplete. For example, under the Diagnostic Code 8620 pertaining to the sciatic nerve, a 10 percent evaluation was assigned for mild incomplete paralysis; a 20 percent evaluation was assigned for moderate incomplete paralysis; a 30 percent evaluation was assigned for moderately severe incomplete paralysis; and a 40 percent evaluation was assigned for severe incomplete paralysis. A 80 percent evaluation was assigned upon a showing of complete paralysis where the foot dangled and dropped, no active movement was possible of muscles below the knee, and flexion of the knee was weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Codes 8620. The Board observes that the words "moderate" and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The evidence for consideration in connection with the veteran's claim for an increased evaluation consists of VA medical records, as well as the reports of VA examinations. After reviewing the evidence of record, the Board is of the opinion that the veteran's right lower leg S1 radiculopathy is not productive of moderate incomplete paralysis of the sciatic nerve, and therefore an increased evaluation is not warranted. A May 2004 VA pain clinic evaluation reflected complaints of chronic low back pain with right leg numbness down to the foot. He described the pain as constant, cramping, burning and described a "pins and needles" feeling in the right toes. The veteran ambulated with Canadian crutches and had an impaired gait. Upper and lower extremities retained full range of motion proximally and distally. Muscle tone was normal and lower extremity isolated limb infusion was 4/5 bilaterally with pain. Muscle strength of the quads, hamstring, plantar flexion and dorsiflexion had 5/5 strength bilaterally. There was numbness at L5/S1. Deep tendon reflexes were 1 on the right at L4 and 0 on the right at S1. Reflexes of the left were normal at 2. Romberg test was negative. In July 2004 the veteran treated at a VA pain clinic and described right leg neuropathy. He indicated that the neuropathic symptoms persisted in the right leg but denied medication and explained he could tolerate the neuropathic symptoms without medication. In September 2004 the veteran described neuropathic symptoms that persisted but he again declined medication. The veteran underwent a VA examination in November 2004. During this examination the veteran complained of worsening low back pain with increased intensity, decreased range of motion, constant pain associated with stiffness and tightness of low back pressure and sensation that radiated to the right lower extremity. He also described numbness of the lateral leg to digits 4 and 5. The veteran denied fecal or urinary incontinence. He described constant severe low back pain and decreased ambulation secondary to the pain and flare ups. He denied associated symptoms such as weight loss, fever, malaise, dizziness, visual disturbances, numbness, weakness, bladder complaints, bowel complaints or erectile dysfunction. Neurological examination reflected normal left side sensory examination but decreased pinprick, light touch and right L5- S1 dermatomes on the right. Motor examination showed no atrophy of the lower extremities. The manual muscle strength test was 5/5 from L1-S1 bilaterally. Babinski test was negative. Reflexes were 2+ patellar and Achilles on the left. Reflexes were absent at the Achilles on the right. Straight leg raise was negative. The diagnosis was L5-S1 herniated nucleus pulposus and S1 radiculopathy and lumbar laminectomy. In December 2004, the veteran was treated at a VA pain clinic for chronic low back pain and neuropathy of the lower extremities. He rated the pain as a 3-4 on a scale of 10 and indicated medication alleviated the pain. The physician noted the veteran's neuropathic symptoms persisted but the veteran declined a separate medication for the neuropathy and described the symptoms as mild and tolerable. Other VA outpatient treatment records described generalized neurological complaints but did not provide specific findings which could be applied to the Schedule for Rating Criteria. For example, VA records dated in July 2004, October 2004, March 2005, May 2006, and August 2006 noted there was no gross motor or sensory deficit. However, a September 2005 record described numbness at the right leg lateral side. In sum, there are subjective complaints of numbness and pain and objective findings of some decreased sensation. While the VA examination dated in November 2004 revealed no reflex of the right lower extremity along with decreased pinprick and light touch sensation of the right extremity, the examiner also noted that the veteran retained full motion of the lower extremities and normal muscle strength. Furthermore, the veteran consistently denied any medication for the condition and described the right leg neuropathy as "mild" and "tolerable." There were also several records where no gross motor or sensory deficit was noted. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. Therefore, the preponderance of the evidence does not demonstrate the veteran has moderate incomplete paralysis of the right lower extremity. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the veteran, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). The Board finds that the evidence of record does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In the absence of such factors, the Board finds that the criteria for referral for the assignment of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Prostatitis The RO granted service connection for a history of prostatitis in an April 2004 rating decision. At that time, a noncompensable evaluation was assigned pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7527. The veteran contends the current rating evaluation does not accurately reflect the severity of his disability. Specifically, in a September 2004 statement in support of claim, the veteran claimed that his service-connected prostatitis had worsened. In view of the veteran's contention that his service- connected disability had worsened since the last rating decision, only the evidence obtained since the April 2004 rating decision will be considered consistent with the Court's decision in Francisco v. Brown, 7 Vet. App. 55 (1994). Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, postoperative residuals are rated as voiding dysfunction or urinary tract infection, whichever is predominant. The Board notes that the veteran's prostatitis is most appropriately evaluated in terms of voiding dysfunction, as there was only one instance of a urinary tract infection during the period on appeal. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. See 38 C.F.R. § 4.115a (2007). Urine leakage which requires wearing of absorbent materials which must be changed less than two times per day is evaluated as 20 percent disabling. Urine leakage that requires the wearing of absorbent materials which must be changed two to four times per day is evaluated as 40 percent disabling. Leakage that requires the wearing of absorbent materials which must be changed more than four times per day is evaluated as 60 percent disabling. 38 C.F.R. § 4.115a. Alternatively a 10 percent evaluation is for assignment for urinary frequency that results in a daytime voiding interval of between two and three hours or awakening to void two times per night. A daytime voiding interval of between one and two hours, or awakening to void three or four times per night warrants a 20 percent evaluation. Urinary frequency that results in daytime voiding intervals of less than one hour, or awakening to void five or more times per night is evaluated as 40 percent disabling. 38 C.F.R. § 4.115a. The criteria concerning obstructed voiding allow for a noncompensable evaluation for obstructive symptomatology with or without stricture disease requiring dilatation 1-2 times per year. A 10 percent evaluation is warranted for marked obstructive symptomatology such as hesitancy, slow or weak stream, or decreased force of stream with any one or combination of the following symptoms: post void residuals greater than 150 cc., markedly diminished peak flow rate, recurrent urinary tract infections, and stricture disease requiring periodic dilation every two to three months. A 30 percent evaluation is for assignment for urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. In March 2005, the veteran complained of periumbilical area pain but denied melena, nausea, vomiting or abdominal distension. The veteran also denied dysuria, frequency, hesitancy, hematuria or discharge. The assessment was discogenic disease with lumbar radiculopathy and abdominal wall pain of radicular etiology. In May 2005, the veteran complained of pain in the lower belly and worried he had prostatitis. He complained of soreness in the testes and described difficulty starting urination but indicated once he began to urinate he did so without problems. The assessment was rule out urinary tract infection; rule out prostatitis; and rule out iatrogenic mild urinary retention due to anticholinergic side effects from medication. In August 2005, a VA physician indicated the urinalysis was negative and prostate specific antigens were within normal range. The veteran reported he was urinating well but continued to describe soreness in the testicular area. Significantly, other VA follow-up records dated in March 2005, August 2005, September 2005, May 2006 and August 2006 all reflected the veteran denied urinary symptoms of frequency, hesitancy and discharge. In sum, while the veteran posits that his prostatitis increased in severity, the record reflects the frequency is less than voiding interval between two and three hours during the day or at least two times at night required for a compensable evaluation. Similarly, there is no evidence the veteran requires absorbent materials to warrant a rating under the criteria for voiding dysfunction. In fact, the majority of the VA records reveal the veteran denied frequency and discharge. Nor is there any evidence demonstrating obstructive symptomatology such as hesitancy, slow or weak stream or decreased force. While the veteran occasionally reported hesitancy it was not accompanied by post void residuals greater than 150 cc, markedly diminished peak flow rate, recurrent urinary tract infections or stricture disease requiring periodic dilation. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted. Therefore, the preponderance of the evidence is against the veteran's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching this decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the veteran, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1). The Board finds that the evidence of record does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In the absence of such factors, the Board finds that the criteria for referral for the assignment of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) are not met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An evaluation in excess of 40 percent for orthopedic manifestations of L5-S1 herniated nucleus pulposus status post laminectomy is denied. An evaluation in excess of 10 percent for the neurological manifestation of incomplete paralysis of the right lower extremity is denied. A compensable evaluation for prostatitis is denied. REMAND A preliminary review of the record discloses that further development is necessary. Specifically, the Board finds another VA examination is necessary to decide the issue of whether an increased evaluation for depressive disorder is warranted. Although the veteran underwent VA examination in February 2004, this examination was performed with a view towards ascertaining whether the veteran had a disability. Subsequently, in the September 2004 application for an increased evaluation, the veteran alleged the depression had worsened. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995). The state of the record is uncertain as to the severity of the veteran's depressive disorder, and an updated VA examination ("VAE") is therefore needed in order to make an informed decision regarding the veteran's current level of functional impairment and adequately evaluate his current level of disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should afford the veteran a comprehensive psychiatric examination, accompanied by any clinical testing deemed appropriate by the examiner. The claims folder and a copy of this remand must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this receipt and review in any report generated as a result of this remand. The examiner is requested to review all pertinent records associated with the claims file, particularly records of treatment for depression and offer comments and an opinion as to the severity of the veteran's depression. A clear rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. The RO/AMC should then take such additional development action as it deems proper with respect to the claim. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ____________________________________________ JONATHAN B. KRAMER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs