Citation Nr: 0814041 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-32 361A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 40 percent for degenerative disc disease with spinal stenosis and radiculopathy, lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty from May 1945 to June 1947 and from August 1950 to October 1952. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2005 rating decision, by the Cleveland, Ohio, Regional Office (RO), which denied the veteran's claim for a rating in excess of 40 percent for degenerative disc disease with spinal stenosis and radiculopathy of the lumbar spine. The veteran perfected a timely appeal to that decision. The Board notes that, in his January 2006 substantive appeal (VA Form 9), the veteran requested a hearing before a Veterans Law Judge (VLJ) at the RO (Travel Board Hearing). In February 2008, the RO sent the veteran notice that a Travel Board hearing was scheduled for May 1, 2008. However, in a statement dated in April 2008, the veteran indicated that he would be unable to attend the hearing; he requested that a decision be made on the evidence of record. Under these circumstances, the Board considers the request for a hearing to be withdrawn by the veteran. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The veteran's degenerative disc disease of the lumbar spine is not manifested by incapacitating episodes having a total duration of at least six weeks during a 12-month period. Bedrest has not been prescribed. 2. The veteran's degenerative disc disease of the lumbar spine is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. The low back retains functional flexion greater than 30 degrees. 3. Neurologic impairment of the left lower extremity results in mild neuropathy of the sciatic nerve. 4. Neurologic impairment of the right lower extremity results in mild incomplete neuropathy of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for degenerative disc disease with spinal stenosis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5237, 5243 (2007). 2. The criteria for a separate 10 percent evaluation for the left mild neuropathy of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2007). 3. The criteria for a separate 10 percent evaluation for the right mild neuropathy of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, VA satisfied its duty to notify by means of letters dated in November 2004 and March 2005 from the RO to the veteran which were issued prior to the RO decision in May 2005. Those letters informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the above-noted letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity at that time to submit additional evidence. In addition, during an informal hearing with the Decision Review Officer in May 2006, the veteran was informed of what the evidence must show to get a higher evaluation for his lumbar spine disorder. The veteran was subsequently afforded a VA compensation examination. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. It also appears that all obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. As noted above, VCAA notification pre-dated adjudication of this claim. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). ). In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no violation of essential fairness to the veteran in proceeding with the present decision, since the veteran was informed of the provisions of Dingess in May 2006. Although he received preadjudicatory notice how to substantiate his claim for an increased rating for degenerative disc disease with spinal stenosis and radiculopathy of the lumbar spine, this notice failed to provide any information regarding a disability rating or an effective date. Although the veteran received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. Specifically, by letter dated in May 2006, the veteran was informed that ratings were assigned with regard to severity from 0 percent to 100 percent, depending on the specific disability. Therefore, the veteran has been provided with all necessary notice regarding his claim. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Regardless, the veteran is able to report and understand the elements of the disability. Therefore, Vazquez-Flores is of limited applicability. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Given the ample communications regarding the evidence necessary to establish entitlement to an increased rating for degenerative disc disease with spinal stenosis and radiculopathy in the lumbar spine, given that he has been provided all the criteria necessary for establishing higher ratings, and considering that the veteran is represented by a highly qualified veterans service organization, we find that any notice deficiencies are moot. See Conway v. Principi, 353 F.3d 1369, 1374 (2004). To that extent that there has been any presumed prejudicial preadjudicative notice error, if any, it did not affect the essential fairness of the adjudication now on appeal. II. Factual background. By a rating action in June 1953, the RO granted service connection for lumbosacral strain, characteristic pain on motion, evaluated as 10 percent disabling. A rating action in August 2002 assigned a 40 percent rating for degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy, effective February 20, 2002. The veteran's claim for an increased rating for the lumbar spine disorder (VA Form 21-4138) was received in October 2004. Submitted in support of the veteran's claim was the report of a VA examination conducted in July 2002. At that time, the veteran indicated that he continued to have difficulty with back and left leg symptoms; he sprained his back easily afterwards if he wasn't careful. The veteran indicated that, over the years, his back and leg symptoms have gradually worsened. Currently, he complained of constant low back pain. He also complained of burning in his feet. He complained of diminished range of motion and diminished strength in his back. On examination, it was observed that the veteran walked with a slow but nonantalgic gait. Forward flexion was to 40 degrees, and extension was in neutral. He had 10 degrees of right and left side bending. He was unable to demonstrate toe and heel walking, because of his balance. Neurological evaluation revealed trace reflexes at the knees and ankles. Straight leg raising on the left caused back and hamstring complaints. Straight leg raising on the right was negative. He had no pain with range of motion of the hips. X-ray study of the lumbar spine revealed multilevel degenerative disk changes. He had marginal osteophytic formations at L1-2, as well as L4-5. He had severe changes, most notable at L5-S1 with what appears to be a Grade I spondylolisthesis. The pertinent diagnosis was degenerative disk disease lumbar spine, severely symptomatic with spinal stenosis and lumbar radiculopathy; and history of surgery, lumbar spine for left leg radiculopathy. In October 2004, the veteran was seen at a neurology clinic for evaluation of weakness and low back pain. The veteran indicated that, over the past several years, he has had progressive numbness and burning of his feet causing him to have difficulty with ambulation because he can't feel the ground beneath the feet. He has had no bowel or bladder incontinence. It was noted that an MRI of the lumbar spine showed spondylolisthesis of L5/S1 grade 1-2, some stenosis at L1/2 and T11/12. The veteran was afforded a VA examination in April 2005, at which time he complained of constant back pain; he stated that the pain travels to the lower legs. The veteran described the pain as burning, aching and sharp in nature; he rated the severity of the pain as 8 on a scale from 1 to 10, with 10 being the worst. The veteran indicted that the back pain is elicited by physical activity, and it is relieved by rest and medication. The veteran stated that he is able to function without medication; and, his condition does not cause incapacitation. The condition resulted in 20 times lost from work per year. It was noted that the veteran's posture was abnormal; it was kyphoscoliotic. His gait was abnormal; he used a cane for ambulation. Examination of the thoracolumbar spine revealed no complaints of radiating pain on movement. Muscle spasm was absent. No tenderness was noted. There was negative straight leg raising on the right. There was positive straight leg raising on the left. There was no ankylosis of the spine. The lumbar spine had flexion to 70 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and rotation was 20 degrees bilaterally. Range of motion was additionally limited by pain after repetitive use, and pain has the major functional impact; it was not additionally limited by fatigue, weakness, lack of endurance or incoordination after repetitive use. There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. Motor function was within normal limits. Sensory function was within normal limits. The right lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The left lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The pertinent diagnosis was changed to degenerative disc disease with spinal stenosis; the examiner noted that the diagnosis was changed because of normal neurological examination today. Of record is a medical statement from Dr. Shayla Chambless, dated in February 2006, indicating that the veteran was seen in December 2005 for evaluation of complaints of severe pain radiating down both legs and burning in both feet. Cranial nerves were intact. Bilateral lower extremities had decreased sensation medially and laterally, with tingling in the lower extremities. Reflexes in the lower extremities were diminished, barely present on the left, slightly greater on the right at 1+. Motor scale was 3-4/5 in the lower extremities. The pertinent diagnoses were spinal nerve impingement with severe chronic back pain, secondary to service-connected related injury; and peripheral neuropathy of bilateral lower extremities, secondary to diagnosis #1. Also of record is a treatment report from Dr. Blair W. Krell, dated in February 2006, who examined the veteran or complaints of back pain and leg pain. The veteran reported pain in the back radiating down the left leg with bilateral foot numbness and pain. It was noted that the veteran presented to the clinic with a cane. Examination of the extremities revealed full strength. Sensation was decreased, with vibration in the left foot greater than the right. Reflexes are 2/4 in the knees. Downgoing toe left, neutral to upgoing toe on the right. Gait was slightly wide based and with bilateral leg circumduction. The impression was leg paresthesias possible underlying peripheral neuropathy as well. The veteran was referred for a VA neurological evaluation in June 2006. The veteran indicated that he had persistent low back pain which is localized to the lumbar spine, to the right paravertebral region; he described the pain as dull with occasional sharp component. The intensity of the back pain was described as a 5 to 8 out of 10. The veteran stated that he experiences severe pain on a daily basis, lasting for several hours. The veteran indicated that the severe pain limits some functions, but the veteran was able to ambulate and perform most ordinary functions slowly but independently. He reported no incapacitating episodes. The veteran stated that the pain is exacerbated by prolonged standing or sitting. The veteran is able to walk unassisted for the most part; however, he occasionally uses a cane for gait support. The veteran indicated that he does not take any pain medications for low back pain symptoms. The veteran also indicated that he experiences sharp shooting pain involving the posterolateral aspect of the left leg approximately twice a day; the symptoms rarely involve the right lower extremity. The veteran stated that this symptom is associated with numbness and burning pain involving the feet. There was no history of focal motor weakness for example foot drop; there was no history of bowel or bladder dysfunction. Tone and bulk appeared normal and symmetric bilaterally. Insufficient effort was provided in determining strength, which was at least4 to 4+ over 5 strength was demonstrated in all major muscle groups, bilaterally. Deep tendon reflexes were 2+ at the knees and 1+ at the ankles, bilaterally. Sensory examination was significantly reduced; vibratory and proprioception sensations at the toes, decreased light touch, pinprick and temperature perception and were distal to proximal radiating up to approximately mid calves bilaterally. Multi-modality sensory impairment was also noted in the glove distribution bilaterally with the exception of vibratory and proprioceptive sensations. There was no sensory level on the back; Romberg's sign was present. Gait was slightly wide based. The veteran had difficulty in performing heel and tandem walk. The examiner stated that the veteran's symptomatology appeared to be secondary to degenerative disc disease involving the distal spine. The condition is at least as likely as not contributed by his prior low back injuries. On the occasion of a VA examination in January 2007, the veteran flexed to 90 degrees, and extended to 30 degrees. Repeat flexion and extension of his back produced no indication of pain, weakness or fatigue. He had right and left lateral flexion to 30 degrees. He had right and left lateral rotation to 30 degrees. This was all done repetitively without indication of pain, weakness, or fatigue. It was noted that, while the veteran is currently retired, his daily activities are affected from the standpoint that at his age, he said that he lives a very sedated life. The veteran stated that he is only able to sleep for about four hours at a time, at which point he has to get up and get in a hot tub because his back pain wakes him up. The veteran also noted that his back pain does not really affect his daily activities as far as his chores and things that he does with regard to his normal activity for someone 79 years old. III. Legal Analysis. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. 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. 38 C.F.R. § 4.7. When, after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. When rating the veteran's service-connected disabilities, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, the Board also notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board notes that the intent of the rating 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 malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. A. Increased rating for degenerative disc disease, lumbar spine. The veteran is presently assigned a 40 percent evaluation for degenerative disc disease with spinal stenosis and radiculopathy, lumbar spine, under Diagnostic Code 5243. 40 percent contemplates forward flexion of the thoracolumbar spine to 30 degrees or less. It is the maximum evaluation assignable for limitation of motion. Johnston v. Brown, 10 Vet. App. 80 (1997). A higher evaluation may be assigned is there is unfavorable ankylosis or if there are a certain number of incapacitating episodes requiring bed rest. The general rating formula provides for the following disability ratings for diseases or injuries of the spine, 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. It applies to Diagnostic Codes 5237 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine is 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; a 30 percent rating is awarded for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; a 40 percent rating is assigned for 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; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the rating formula 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): (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. 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. Intervertebral disc syndrome (preoperatively or postoperatively) may 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 method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent evaluation. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of this case, the Board notes that under DC 5003 for degenerative arthritis, ratings are based on the limitation of motion of the affected joint or joints. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. DC 5010 states that traumatic arthritis should be rated like degenerative arthritis. 38 C.F.R. § 4.71(a), DCs 5003, 5010. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2007). As noted above, the veteran may receive a 60 percent disability rating by showing that he suffered incapacitating episodes having a total duration of at least six weeks during the past twelve months. The veteran has not reported any such problem; in fact, during the recent VA examination in June 2006, the veteran denied any incapacitating events in the past 12 months. And, on the occasion of the January 2007 VA examination, the veteran indicated that his back does not really affect his daily activities as far as his chores and things that he does with regard to his normal activity for someone 79 years old. Based upon the evidence of record, the Board finds the veteran does not qualify for a 60 percent disability evaluation under the criteria rating based on incapacitating episodes (that is, episodes requiring bed rest prescribed by a physician and treatment by a physician). 38 C.F.R. § 4.71(a), Diagnostic Code 5243 (2007). At no time has bed rest been prescribed. The veteran's back disorder may also be rated under the General Rating Formula for Diseases and Injuries of the Spine. To receive a 50 percent rating for a thoracolumbar spinal condition under the Rating Schedule, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine. But the evidence of record does not demonstrate unfavorable ankylosis of the entire or thoracolumbar spine. Accordingly, an evaluation in excess of 40 percent for a lumbar spine disability is not warranted. 38 C.F.R. § 4.71a, General Rating Formula. The Board has also considered 38 C.F.R. §§ 4.40, 4.45 (2007), addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain, throughout the time period. See also Deluca v. Brown, 8 Vet. App. 202, 206 (1995). In this regard, the veteran reported in January 2007 that his back pain does not really affect his daily activities as far as his chores and things that he does with regard to his normal activity for someone 79 years old. The examination showed that the veteran flexed to 90 degrees, and extended to 30 degrees. Repeat flexion and extension of his back produced no indication of pain, weakness or fatigue. He had right and left lateral flexion to 30 degrees. He had right and left lateral rotation to 30 degrees. This was all done repetitively without indication of pain, weakness, or fatigue. 38 C.F.R. §§ 4.40, 4.45; see also Deluca, Id. Regardless of this examination or any other lay or medical evidence, he is at the maximum evaluation for functional limitation of motion. See Johnston, supra. The Board accepts that the veteran has functional impairment, pain, and pain on motion. See DeLuca, supra. The Board also finds the veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence establishes the presence of unfavorable ankylosis. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Separate Rating for Neurological Impairment. The Board observes that a VA medical doctor, who evaluated the veteran in June 2006, and a private, who evaluated the veteran in December 2005, both noted the veteran's bilateral radicular symptoms. Specifically, following an evaluation in December 2005, Dr. Chambless reported a diagnosis of peripheral neuropathy of bilateral lower extremities, secondary to spinal nerve impingement with severe chronic back pain. In yet another private medical statement, dated in February 2006, Dr. Bair W. Krell noted decreased strength in the lower extremities. The impression was leg paresthesias possible underlying peripheral neuropathy. More recently, on VA examination in June 2006, the examiner noted that sensation was significantly reduced. In light of the above findings, the Board finds that the veteran's lower extremity radiculopathy is a manifestation of his service- connected low back disability. 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 of the sciatic nerve; a 40 percent evaluation requires moderately severe incomplete paralysis; a 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy; an 80 percent evaluation requires complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Here, the above evidence shows that the veteran has radiculopathy and diminished sensation in both lower extremities. As such, the evidence supports the veteran's entitlement to a separate 10 percent evaluation for each side, and no more, under Diagnostic Code 8520, for disability comparable to mild neuropathy paralysis of the sciatic nerve of his lower extremities. An evaluation in excess of 10 percent is not warranted. In this regard, the findings consist of some decrease in reflexes, decreased sensation and complaints of pain. There may also be some decrease in strength. However, the constellation of manifestations expected for moderate neuropathy is not present. ORDER Entitlement to an evaluation in excess of 40 percent for degenerative disc disease of the lumbar spine with radiculopathy is denied. A separate 10 percent rating for mild neuropathy of the sciatic nerve of the right lower extremity is granted, subject to the law and regulations governing payment of monetary benefits. A separate 10 percent rating for mild neuropathy of the sciatic nerve of the left lower extremity is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs