Citation Nr: 0813399 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-27 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for residuals of low back strain with injury with lumbar disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, wherein the RO granted service connection for residuals of low back strain injury with lumbar disc disease; an initial 20 percent evaluation was assigned, effective February 21, 2002. The veteran timely appealed the RO's March 2004 rating action to the Board. As the award of 20 percent is an incomplete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In January 2007, the Board remanded the veteran's claim to the RO for additional development. The requested development has been completed and the case has returned to the Board for appellate review. FINDINGS OF FACT 1. Prior to September 26, 2003, the veteran's service- connected low back disability was manifested by moderate limiation of motion. There was no evidence of muscle spasms, loss of lateral spine motion, severe recurring attacks of intervertebral disc syndrome with intermittent relief, vertebra fracture, or ankylosis of the lumbar spine. 2. Subsequent to September 26, 2003, the veteran's low back disability, forward flexion of the thoracolumbar spine to 60 degrees. There is no evidence of any favorable ankylosis of the entire thoracolumbar spine or indications of incapacitating episodes having a duration of at least 6 weeks during the past 12 months. 3. Manifestations of the neurological abnormalities associated with the lumbar spine disability include right lower extremity radiculopathy, characterized as mild neuritis. CONCLUSIONS OF LAW 1. The criteria have not met for an initial disability rating higher than 20 percent for the veteran's service- connected residuals of low back injury with degenerative disc disease. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5292, 5293, 5295 (in effect prior to September 23, 2002); 4.71a, Diagnostic Codes 5293, 5237, 5242, 5243 (in effect as of September 23, 2002 and September 26, 2003). 2. The criteria for a separate initial evaluation of 10 percent, but no more, for right lower extremity radiculopathy, mild neuritis, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.71a, Note (1), 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Duty to Notify Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This appeal arises from a disagreement with an initial rating following the grant of service connection for residuals of low back strain with injury with lumbar disc disease. United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, any deficiency in the VCAA notice is not prejudicial and further VCAA notice is generally not required. Dunlap v. Nicholson, 21 Vet App 112 (2007); Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006). The United States Court of Appeals for the Federal Circuit has also held that additional VCAA notice is not required when there is an appeal from the initial grant of service connection. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As this case concerns the propriety of an initial evaluation, rather than a claimed increase in an existing evaluation, it is readily distinguishable from the type of situation addressed in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In that case, the Court required specific notification duties in increased evaluation cases, where a worsening had been alleged. The Court stressed the difference between the two types of claims, noting that an increased compensation claim centers primarily on evaluating the worsening of a disability that is already service connected, whereas in an initial claim for disability compensation, the evaluation of the claim is generally focused on substantiating service connection by evidence of an in-service incident, a current disability, and a nexus between the two. Id., slip. op. at 5. Thus, in view of the foregoing case precedent, the Board finds that no further VCAA notice was required once VA awarded service connection for residuals of low back strain with injury with lumbar disc disease in March 2004. Duty to Assist Concerning VA's duty to assist the appellant with his initial evaluation claim, service medical and post-service VA and private examination and clinical treatment reports, and statements of the veteran have been associated with the claims file. In addition, in January 2007, the Board remanded the veteran's claim, in part, to schedule him VA neurological and orthopedic examinations of his lumbar spine. (See, January 2007 Board remand, pages (pgs.) 4-6). Thereafter, in June 2007, a VA neurologist examined the veteran. A copy of the June 2007 VA examination report has been associated with the claims file. The veteran's representative argued that because the veteran was only afforded one, as opposed to two VA examinations (neurological and orthopedic), as requested by the Board in its June 2007 remand directives, the case should again be remanded to the RO. [See, February 2008 Informal Hearing Presentation, prepared by the appellant's representative, page 2, citing Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]]. The Board finds, after a careful review of the June 2007 VA neurology examination report, that it comports with the new spine rating criteria and the holding in Deluca v. Brown, 8 Vet. App. 202, 204-7 (1995), as requested by the Board in its January 2007 remand directives. Thus, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. II. Relevant Laws and Regulations Initial Evaluations-general rating criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as in the instant claim,, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a no percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.3. Spine rating criteria The RO received the veteran's claim for service connection for low back disability on February 21, 2002. By a March 2004 rating action, the RO awarded service connection for residuals of low back injury with lumbar disc disease; an initial 20 percent evaluation was assigned under Diagnostic Code (DC) 5293 (intervertebral disc syndrome), effective February 21, 2002. 38 C.F.R. § 4.71, DC 5293 (2007). During the pendency of the veteran's appeal, regulations pertaining to the evaluation of spinal disabilities were amended on two separate occasions. See 67 Fed. Reg. 54345-54349 (Aug. 22, 2002) (effective September 23, 2002); and 68 Fed. Reg. 51454- 51456 (Aug. 27, 2003) (effective September 26, 2003). When a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. See VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. See VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In an October 2007 supplemental statement of the case, the RO addressed the veteran's initial evaluation claim under both the old and current criteria. Thus, there is no prejudice to the veteran for the Board to apply the regulatory revisions of September 26, 2003 in the adjudication of this appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). In view of the foregoing, there are three distinct rating schemes potentially applicable to the veteran's initial evaluation claim. First, prior to September 26, 2003, 38 C.F.R. §4.71a, Diagnostic Code 5292 (2002), limitation of motion of the lumbar spine, 20 and 40 percent ratings were assigned for moderate and severe limitation of motion, respectively. Id. Prior to September 26, 2003, and pursuant to 38 C.F.R. §4.71a, Diagnostic Code 5289 (2002), favorable and unfavorable ankylosis of the lumbar spine warranted 40 and 50 percent evaluations, respectively. Id. Prior to September 26, 2003, pursuant to 38 C.F.R. §4.71a, Diagnostic Code 5295 (2002), a 40 percent rating was warranted for a severe lumbosacral strain, with listing of whole spine to 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. A 20 percent rating was assigned for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. Id. Prior to the September 2002 revision, 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002) provided that moderate intervertebral syndrome with recurring attacks warranted a 20 percent evaluation. A 40 percent evaluation was warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation required pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (that is, with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. Id. Second, under the September 23, 2002, amendments to Diagnostic Code 5293 for rating intervertebral disc syndrome, a 20 percent evaluation was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent required intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating, the highest available rating, was warranted when there were incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode was defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. An evaluation could be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Id. A Note to revised Diagnostic Code 5293 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome which requires bed rest prescribed by a physician and treatment by a physician. The Note also provides that "chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome which are present constantly, or nearly so. Id. The September 2002 amendments did not change the criteria under Diagnostic Code 5292 or 5295. Third, effective September 26, 2003, the schedule for rating spine disabilities was changed again to provide for the evaluation of all spine disabilities under a General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (renumbered as Diagnostic Code 5243). The General Rating Formula for Diseases and Injuries of the Spine provides, in pertinent part, a 50 percent rating when there is unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately, under an appropriate diagnostic code. The Incapacitating Episode rating scheme provides for no higher than a 60 percent rating for intervertebral disc syndrome and is nearly the same as that utilized in the 2002 changes. Intervertebral disc syndrome continues to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 20 percent evaluation is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. An evaluation of 40 percent requires intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating was assigned when the veteran experienced incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. III. Factual Background The veteran contends that his service-connected low back disability is more severely disabling than that reflected by the currently assigned 20 percent evaluation due to such symptoms as constant pain that radiates into both legs, which is more severe on the right leg and interferes with his ability to perform physical activities. Overall, he maintains that his service-connected low back disability warrants an initial 30 percent disability rating. (see ,VA Form 9, received by the RO in July 2004). In an appealed March 2004 rating decision, the RO granted service connection for residuals of low back injury with lumbar disc disease; an initial 20 percent evaluation was assigned, effective February 21, 2002, date of receipt of claim for service connection for the above-referenced disability. The RO based their decision, in part, on service medical records, reflecting that the veteran had received treatment on several associations for back pain after he was involved in a motor vehicle (truck) accident in 1968. Also of record in March 2004 was a May 2002 VA examination report. A review of that examination report shows that the veteran reported having lost his previous job as a truck driver as a result of his back pain. He complained of having pain that radiated into the lateral aspect of the left thigh and leg and top of his left foot with occasional radiation into the right leg and foot. The veteran reported having severe pain for about a week that required bed rest and very little activity with significant relief by the end of one week and persistent soreness for the following three to four weeks. During the latter part of the three to four week period, he would resume normal activities. The veteran reported having tried several methods of treatment to resolve his back pain: muscle relaxers, heat, ibuprofen and ante- depressants. The veteran stated that the most recent flare- up of pain was in January 2002, and that it had persisted since that time. He stated that his pain is increased with prolonged sitting but is alleviated with gentle walking of up to half a mile. The veteran reported that when he experienced severe pain, he used a cane to aid him with his balance When VA evaluated the appellant's lumbar spine in May 2002, there was generalized tightness of the low back muscles. Range of motion of the lumbar spine was as follows: flexion to 60 degrees, extension to 15 degrees and bilateral bending to 15 degrees. Deep tendon reflexes were 1+ at the knees and absent at the ankles. Straight leg testing in the sitting was negative, but the supine position elicited complaints of severe low back pain with elevation of either leg at about 15 degrees. The examiner noted that the previous findings were "physiologically inconsistent and to some degree suggest symptom exaggeration." The May 2002 VA examiner noted that an October 2000 VA magnetic resonance imaging scan (MRI) of the lumbar spine revealed mild diffuse disk bulge without significant spinal canal or neural foraminal stenosis at L4-5 and L5-S1. The May 2002 VA examiner entered a diagnosis of disc bulges at L4-5 and L5-S1 with anula?? tears but without foraminal or canal stenosis. A November 2002 report, prepared by J. R. M. D., reflects that the veteran had "moderate limitation of motion of the lumbar spine" but without any radicular symptoms. There was also no evidence of sciatic notch or trachanteric tenderness, bilaterally, crepitation, defects, masses, effusions, or dislocations. Moto muscle testing revealed grade five (5) strength, bilaterally. Sensation was intact to light touch and pinwheel. X-rays of the lumbar spine revealed mild degenerative disc disease at L4-5 and L5-S1. There was, however, no evidence of fracture, dislocation, spondylolysis or spondylolisthesis. There was also no instability on flexion-extension views. The paraspinal tissues appeared intact. Dr. J. R., entered an impression of mechanical low back pain most likely from his degenerative disc disease. A June 2003 Social Security Administrative decision, also of record in March 2004, shows that the veteran was found not to have engaged in substantial gainful activity since January 29, 2003 due to the following severe impairments : (1) degenerative disc disease; (2) carpal tunnel syndrome, and (3) "trigger finger." A February 2004 VA examination report revealed that the veteran complained of daily low back pain that radiated into the legs, which was greater on the right than the left. He also stated that his low back pain prevented him from lifting more than 10 pounds and putting on his shoes and socks. He denied having any specific episode flare-ups or specific aggravation factors of his low back. The veteran indicated that he was retried from his previous job as a truck driver. Upon physical evaluation of the lumbar spine by VA in February 2004, the veteran walked slowly and with a limp. He used a cane. The examiner noted that the veteran moved around the examination room with "moans and groans and changes posture and position frequently." The veteran's back curvature appeared normal. His musculature, however, was tight on both sides of the spine from the mid-thorax down to the low lumbar regions. There was mild tenderness throughout the musculature. Range of motion of the lumbar spine was as follows: forward flexion to 35 degrees, extension to 30 degrees, right and left lateral bending to 10 and 5 degrees, respectively, and right and left rotation was to 10 and 15 degrees, respectively. The February 2004 VA examiner noted that truncal rotation and axial loading caused complaints of excruciating low back pain that were on physiological responses. The veteran's deep tendon reflects were not elicited on the left side, but were hypoactive at the right knee and ankle. Strength throughout both legs was demonstrated as quite weak and with complaints of pain. Straight leg raising in the sitting position produced complaints of low back pain with elevation of either knee to a straight knee position, but when in the supine position, elevation of either straight leg to no more than five (5) degrees produced complaints of excruciating low back pain on the ipsilateral side. The examiner stated that a different degree of the above-referenced complaints was a "nonphysiological finding". A diagnosis of degenerative lumbar disk disease was recorded. The examiner opined that X-rays of the lumbar spine were minimal, as compared to his symptom complaints, which were "far out of proportion to these minimal abnormalities." The veteran denied having any incapacitating episodes. When evaluated by VA in July 2007, the veteran continued to complain of having flare-ups of back pain that lasted every one to three months, for three to four days at time. During said flare-ups, he estimated that he lost approximately 70 percent of his spine mobility, which made it painful to put on his shoes and socks. The veteran stated that he performed all other activities of daily living without difficulty. The veteran stated that he had had some epidural injections, and that they had helped. He denied having any low back surgery or incapacitating episodes. A physical evaluation of the thoracolumbar spine in June 2007 revealed the following ranges of motion: flexion to 60 degrees with pain beyond 45 degrees, extension to 15 degrees, bilateral bending and rotation to 20 and 30 degrees, with pain reported at each of the extreme range of motion, respectively. Tendon reflects were 1+ and equal at both knees and ankles. Lower extremity strength and sensory responses were normal. Straight leg testing produced ipsilateral low back pain with elevation of either leg to 30 degrees, further elevation of the right leg caused radiation down the posterior right thigh. The veteran reported that during his flares of back pain, he had frequent radiation of the pain down the posterior right thigh, which was often accompanied by tingling in the same region. There was no weakness in the legs. There examiner stated that there were symptoms of "mild neuritis." X-rays were noted to have been similar to those performed during the February 2004 VA examination. The June 2007 VA examiner entered a diagnosis of lumbar spine degenerative disc disease and degenerative joint disease by prior MRI with secondary symptoms of radiuclitis. The examiner also concluded that there was no pain on range of motion or flare-ups of the low back joints, excepts as previously recorded herein. Finally, he opined that there was no additional limitations of the lumbar spine by pain, fatigue, weakness, or lack of endurance following repetitive use. IV. Analysis The Board finds no basis to award an initial disability rating greater than 20 percent for the veteran's service- connected lumbar spine disability under any version of the rating criteria. 38 C.F.R. § 4.7. In reaching the foregoing determination and with respect to the criteria in existence before the September 2002 and September 2003 amendments, the veteran's lumbar spine disability could be rated under a variety of diagnostic codes that could entitle him to an initial rating greater than the currently assigned 20 percent. VA examinations conducted throughout the duration of the appeal, however, show no evidence of vertebral fracture (Diagnostic Code 5285), complete ankylosis of the spine (Diagnostic Code 5286), or unfavorable ankylosis of the lumbar spine (Diagnostic Code 5289). 38 C.F.R. § 4.71a, Diagnostic Codes, 5285, 5286, and 5289 (2002). Therefore, these diagnostic codes will not be applied. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). To warrant a rating higher than 20 percent under the criteria for limitation of motion of the lumbar spine, DC 5292, prior to September 26, 2003, the veteran would have to have severe limitation of motion. The record shows that aside from a finding of flexion of the lumbar spine to 35 degrees by VA in February 2004, the remainder of the evidence of record, to included May 2002 and June 2007 VA examination reports, shows that forward flexion was to 60 degrees. (see, May 2002 and June 2007 VA examination reports). In fact, in November 2002, a private physician described the veteran's limitation of motion of the lumbar spine as "moderate." (see, November 2002 report, prepared by J. R., M. D., reflecting that the veteran had "moderate limitation of motion" of the lumbar spine). With regard to the previous criteria before September 2002 for the service-connected low back disability, the evidence does not support a rating higher than 20 percent under Diagnostic Code 5293. While May 2002 and February 2004 VA examination reports contain objective evidence of radiculopathy to the right lower extremities, absent ankle jerk and deep tendon reflexes on the left side, these same reports also reveal that VA examiners had determined that the appellant had over exaggerated his symptoms and that they were "far out of proportion" to his "minimal abnormalities." (see, May 2002 and February 2004 VA examination reports, respectively). The VA examiners' conclusions and observations are consistent with clinical findings of "no radicular symptoms," deep tendon reflexes of 2+ and 1+ and normal strength and sensation noted during private and VA examinations, conducted in November 2002 and June 2007, respectively. These same examination reports do not contain any objective evidence of muscle spasms or weakness of the legs. In fact, in June 2007, the VA examiner specifically indicated that there was "no weakness in legs." Thus, aside from radiculopathy of the right lower extremity, there are no other neurological findings. Thus, the aforementioned November 2002 and July 2007 private and VA examinations of record generally provide evidence against a higher rating for the service-connected low back disability under the earlier pre-September 2002 criteria for Diagnostic Code 5293. The Board now turns to the new rating criteria in effect after September 2002 and September 2003. Under these regulations, the veteran's low back disability is evaluated 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 method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the September 2003 amendments, as to orthopedic manifestations of his low back disability under Diagnostic Code 5243, the evidence of record does not demonstrate a rating beyond 20 percent. Specifically, from September 26, 2003, there is no evidence of forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. In fact, when evaluated by VA in February 2004 and June 2007, forward flexion of the lumbar spine was 35 and 60 degrees with pain beyond 45 degrees, respectively. There is no mention of ankylosis at all in the evidence of record. (See VA examination report, dated in June 2007). Thus, the findings of forward flexion of the lumbar spine ranging from 35 to 60 degrees, with consideration of pain, are indicative of only a 20 percent rating for orthopedic manifestations under the General Rating Formula for Diseases and Injuries of the Spine. Under the September 2003 amendments, with regard to functional loss, VA examiners noted that the veteran occasionally uses a cane. Although the July 2007 VA examiner noted pain beginning at 45 degrees of flexion of the lumbar spine, he also concluded that there was no evidence of additional limitations by pain, fatigue, weakness, or lack of endurance following repetitive use of the lumbar spine. (See, June 2007 VA examination report). In sum, although his functional loss present is significant, it is more than adequately represented in the currently assigned 20 percent. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206. Under both the September 2002 and 2003 amendments, as to incapacitating episodes under Diagnostic Code 5243, the VA examinations of record do not reflect incapacitating episodes having a total duration of at least at least 6 weeks during the past 12 months. Significantly, according to the May 2004 and June 2007 VA examiners, the veteran denied having had any incapacitating episodes. Such an admission by the veteran himself provides strong evidence against a higher rating. Likewise, VA outpatient treatment records, dating from February 2004 to February 2007, are negative for incapacitating episodes or bed rest prescribed by a physician. Indeed, a July 2005 VA outpatient report reflects that the veteran described his back pain as "no worse nor better and is controlled with present non-narcotic analgesics." (See, July 2005 VA outpatient report). Overall, there is simply no evidence of bed rest prescribed by a physician to support the existence of any incapacitating episode due to his low back disability. Under both the September 2002 and 2003 amendments, as to neurologic manifestations, the veteran also had radiculopathy, pain, and some tingling of the lower extremities, greater on the right leg than the left, associated with his service-connected low back disability. The veteran also reported weakness of the legs, although this was not objectively confirmed. (See VA May 2002, May 2004 and June 2007 VA examination reports). Despite these signs and symptoms, the RO did not specifically assign a separate rating(s) for neurological manifestations of his low back disability to the lower extremities under 38 C.F.R. § 4.124a, Diagnostic Code 8520, incomplete paralysis of the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a higher 40 percent rating; and severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 (2007). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. In this case, the objective medical evidence shows that when evaluated by VA in June 2007, a VA examiner characterized the veteran's symptoms of frequent radiation of the pain down the posterior right thigh, which was often accompanied by tingling in the same region, as "mild neuritis." (See, June 2007 VA neurological examination report). The right lower extremity radiculopathy was not characterized by foot drop, weakness, significant sensory loss, bowel or bladder impairment, muscle atrophy, loss of strength, or significant loss of reflexes. Indeed, the above-referenced VA examination report indicates that the veteran did not have any leg weakness. The appellant also denied having had any bladder or bowel impairment. (see, February 2007 VA outpatient report). Consequently, as the June 2007 VA examiner described the veteran's right leg radiculopathy associated with the service-connected low back disability as "mild neuritis," a separate 10-percent rating under Diagnostic code 8520 is warranted. 38 C.F.R. § 4.7. Combining under 38 C.F.R. § 4.25 (the combined rating table), with consideration of the factor, the separate evaluations of the veteran's chronic orthopedic and neurologic manifestations of his low back disability (i.e., 20, and 10 percent) yields the veteran a combined rating of 30 percent. Id. V. Extra-Schedular Consideration Finally, there is no evidence of exceptional or unusual circumstances to warrant referring the case for extra- schedular consideration. 38 C.F.R. § 3.321(b)(1) (2002). The Board finds no evidence that the veteran's service- connected low back disability markedly interfere with his ability to work, meaning above and beyond that contemplated by her separate schedular ratings. See, too, 38 C.F.R. § 4.1 indicating that, generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, when evaluated by VA in June 2007, the veteran indicated that he was retired. Furthermore, while the SSA has determined that the veteran is disabled, in part, due to his service-connected low back disability, SSA and VA are separate government agencies, and reach their disability determinations independent of one another. In addition, the evidence of record does not contain any exceptional circumstances, such as frequent hospitalizations, to suggest that he is not adequately compensated for his low back disability by the regular rating schedule. VAOPGCPREC 6-96. His evaluation and treatment has been solely on an outpatient, as opposed to an inpatient, basis. ORDER An initial evaluation in excess of 20 percent for low back strain with injury with lumbar disc disease is denied. A separate initial evaluation of 10 percent for right lower extremity radiculopathy is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs