Citation Nr: 0814096 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-19 956 ) 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 rating for a low back disability with associated radiculopathy affecting the lower extremities, currently evaluated as 40-percent disabling. 2. Entitlement to an extra-schedular rating for the low back disability with associated radiculopathy affecting the lower extremities. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The veteran had active military service from January to July 1994. This appeal to the Board of Veterans' Appeals (Board) is from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded this case in October 2005 and again in March 2007 to obtain additional medical records and to have the veteran undergo a VA examination to assess the severity of his disability. The decision below addresses the veteran's claim for a schedular rating higher than 40 percent for his low back disability with associated radiculopathy affecting his lower extremities. However, the Board is also remanding the ancillary issue of whether he is entitled to a higher rating for this disability on an extra-schedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) (2007). The remand to the RO will be via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The veteran's low back disorder is manifested by complaints of constant pain, numbness (paresthesias) - including in his lower extremities, dizziness, decreased range of motion, and spasms; however, there are no objective clinical indications of ankylosis or incapacitating episodes resulting in physician-prescribed bed rest, and his neurological manifestations - in particular the lower extremity radiculopathy, amount to no more than mild incomplete paralysis of his sciatic nerve. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 40 percent for the low back disability. 38 U.S.C.A. § 1155 (West 2002; 38 C.F.R. §§ 4.7, 4.10, 4.25(b), 4.40, 4.45, 4.71a, Diagnostic Codes 5285, 5292 (2003), 4.71a, Diagnostic Code 5235-5243 (2007). 2. The criteria are met, however, for separate 10 percent ratings for the lower extremity radiculopathy. 38 U.S.C.A. §§ 1155, 5107(b), 5110(g) (West 2002); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.71a, Diagnostic Code 8720 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). When possible, this notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ, i.e., the RO). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). Here, a letter dated in September 2003 and provided to the appellant prior to the January 2004 rating decision on appeal satisfied the VCAA's duty to notify provisions as this letter discussed the requirements for establishing his entitlement to an increase in the rate of his service-connected compensation by showing his disability has worsened. When, however, for whatever reason, there was no or inadequate pre-decisional VCAA notice, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). The appellant was provided this notice in the September 2003 letter. Further, if the Diagnostic Codes under which the claimant is rated contain criteria necessary for entitlement to higher disability ratings that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Here, the appellant was provided this general notice in the January 2004 rating decision, April 2004 SOC, October 2005 letter, August 2006 SSOC, April 2007 letter, and August 2007 SSOC. After issuing that most recent August 2007 SSOC, the AMC sent the veteran's representative a letter providing an opportunity to submit additional evidence and/or argument in response. The Board supplemented that letter with another letter in October 2007. And neither the veteran nor his representative has indicated there is any additional evidence to obtain. So there is no reason to go back and again readjudicate the claim and provide him another SSOC. See Medrano v. Nicholson, 21 Vet. App. 165, 172 (2007) (where after VA provides a content-compliant VCAA notice on all requisite notice elements - albeit in an untimely manner - and a claimant subsequently informs VA there is no further evidence to submit, the failure by the RO to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication would be no different than the previous adjudication). Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. The appellant was provided this notice collectively in the January 2004 rating decision, April 2004 SOC, October 2005 letter, August 2006 SSOC, April 2007 letter, and August 2007 SSOC. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice 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 - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. This information was conveyed to the appellant in the September 2003, October 2005, and April 2007 letters. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit Court 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), concerning any element of a claim, is presumed prejudicial, and that once an error is identified the burden shifts to VA to show the error was not prejudicial to the appellant, i.e., harmless. 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, No. 05-0355, slip op. at 12 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates 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, No. 05-0355, slip op. at 9 (U.S. Vet. App. January 30, 2008). See, too, Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post-decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). In this case, the Board finds that notice errors will not affect the essential fairness of the adjudication because the appellant is reasonably expected to understand what was needed to establish an increased rating from the various notice letters sent to him by the RO, in the SOC and SSOC, and in information gleaned from the Board's October 2005 and March 2007 remands. In particular, the September 2003 letter requested that he submit evidence showing that his service- connected disability had increased in severity - noting this evidence may be a statement and supporting medical records from his physician, statements from other individuals, and his own statements. Similarly, the April 2007 letter notified him that examples of evidence that he should tell VA about or provide to VA include information about on-going treatment; recent Social Security determinations; statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work; or statements discussing his disability symptoms from people who have witnessed how these symptoms affect him. He was informed, as well, of the Diagnostic Code requirements (including revisions to pertinent diagnostic codes and requirements for ratings from zero to 100 percent, as applicable) for increased ratings in the rating decision, the SOC, and SSOCs. Therefore, VA has no outstanding duty to inform him that any additional information or evidence is needed for his increased-rating claim. Although complete notice was not sent before the initial AOJ decision in this case, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. That is to say, he has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. For these reasons, it is not prejudicial to him for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d). Here, the veteran's service and VA medical records as well as the decision and supporting evidence in connection with his claim for benefits from the Social Security Administration (SSA) have been obtained and he has been afforded VA examinations in connection with his claim, including to obtain the information necessary to assess the severity of his disability. See, e.g., Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Allday v. Brown, 7 Vet. App. 517, 526 (1995);VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). He was informed of the kind of evidence that was required to support his claim and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. He did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. He was given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. He was provided notice of the medical evidence needed for an increased evaluation, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to him 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). Hence, no further notice or assistance to him is required to fulfill VA's duty to assist him in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All relevant facts with respect to the claim addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). One final preliminary point bears mentioning, the Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the Board discuss each and every piece of evidence submitted by the appellant or obtained on his behalf. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is 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 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, No. 05-2424 (U.S. Vet. App. Nov. 19, 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 upon 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 the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account 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) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. For the purpose of rating disability from arthritis, the spine is considered a major joint. See 38 C.F.R. § 4.45. According to DC 5010, traumatic arthritis is rated as degenerative arthritis under DC 5003. And DC 5003, in turn, indicates degenerative arthritis will be rated on the basis of the extent it causes limitation of motion in the affected joint, which, here, is the low back (thoracic and lumbar (thoracolumbar) segments of the spine). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DCs 5003 and 5010. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. The veteran filed his claim for a higher rating for his low back disability in August 2003. The criteria for evaluating diseases or injuries of the spine were amended in September 2003. VA's General Counsel has held that where a law or regulation (particularly pertaining to the Rating Schedule) changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the prior and revised versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The effective-date rule established by 38 U.S.C.A. § 5110(g), however, prohibits the application of any liberalizing rule to a claim prior to the effective date of such law or regulation. See, too, 38 C.F.R. § 3.114. The veteran does get the benefit of having both the prior regulation and the revised regulation considered for the period before and after the change was made. See Rhodan v. West, 12 Vet. App. 55 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the pertinent amended regulations). Therefore, adjudication of the low back claim at issue must include consideration of both the former and revised criteria. The April 2004 SOC and August 2006 SSOC reflect that the RO considered both the criteria effective prior to September 26, 2003, as well as the revised criteria in evaluating the veteran's claim. The veteran and his representative were afforded an opportunity to comment on the RO's action. Accordingly, there is no prejudice to the veteran under Bernard v. Brown, 4 Vet. App. at 384. The Board notes that, since the veteran filed his claim in August 2003, the previous version of the criteria used to rate intervertebral disc syndrome (IVDS), which were applicable prior to September 2002, are not for application. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). To the extent he has IVDS, i.e., disc disease, only the revised criteria need be considered. Prior to September 2003, the maximum rating for limitation of motion of the lumbar spine or for lumbosacral strain is 40 percent, which is the rating already assigned for the veteran's low back disability. 38 C.F.R. § 4.71a, DCs 5292, 5295 (2003). So he must look elsewhere to receive a higher rating. Prior to September 2003, the only Diagnostic Codes that provide for a disability rating higher than 40 percent are those for residuals of a fracture of the vertebra, complete bony fixation of the spine, and unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289 (2003). The veteran does not have any of these required manifestations, so these codes also are of no benefit to his claim for a higher rating. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Because, as will be explained, the veteran is able to move his low back in all directions (forward flexion, backward extension, lateral flexion and rotation) - albeit not as freely as one normally can, by definition, his low back is not immobile. As of September 2003, the relevant criteria are as follows, in part: Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (September 2003). Additionally, intervertebral disc syndrome is 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 resulted in the higher evaluation. The criteria are as follows, in part: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months - 60 percent disabling. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months - 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Id. When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Id. at Note (2). Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. The evidence for consideration in this appeal includes a July 2003 statement from the veteran's private physician showing the veteran complained of constant stabbing pain in his lower back and radiating into his lower extremities, most severe to the left side down to his foot and toes. He also complained of severe cramps in his left leg and toes and left leg numbness, weakness, and giving way. He reported, as well, that his lower back frequently becomes locked and that his lower back and lower extremity symptoms become severely aggravated after 15 minutes of sitting or standing. On objective physical examination, he appeared depressed, walked with the back bent in approximately 15 degrees of flexion, had to change positions frequently in his chair, and had to get up frequently and rub his lower spine to alleviate the tightness and pain. Examination of his lower spine revealed severe pain on palpation, severe muscle spasm, and the spine was locked at 15 degrees of flexion. Motion was painful and restricted to 20 degrees flexion, zero degrees extension, and 10 degrees lateral bending to each side. There was severe pain on palpation with a trigger point on the left side. Examination of the lower extremities revealed positive straight leg raising at 15 on both sides and numbness in the legs, most severe the left, with decreased 2 point discrimination. The deep tendon reflexes were absent at both knees and both ankles and the veteran was unable to squat or kneel. The diagnoses included herniated disc at L5-S1 with nerve roots compression and severe neurologic deficits in the lower back and lower extremities - confirmed by magnetic resonance imaging (MRI) of the lumbosacral spine and degenerative arthritis of the lumbosacral spine and discs, secondary to chronic discs injuries. The examiner concluded the veteran's conditions are permanent and totally incapacitating for all types of work and further aggravated by his mental illness. In September 2003, the veteran had a VA compensation examination. He reported a constant on and off, moderate low back pain with radiation to the feet associated with occasional loss of strength with weakness as well as an occasional stabbing sensation. Physical examination revealed that he had a normal lumbar spine, lower limb, posture and slow guarded gait. Range of motion testing revealed forward flexion to 30 degrees, backward extension to 25 degrees, and lateral flexions and rotations to 20 degrees. The examiner noted painful motion on the last degree of the range of motion. The examiner also noted the veteran was additionally limited by pain, fatigue, weakness and lack of endurance following repetitive use and, during seven to eight percent of the year, has acute flare-ups of pain which have a major functional impact in which he cannot bath or dress and undress himself and has to be helped to get out of bed. Palpable mild lumbosacral spasm was noted and he had diminished pinprick and smooth sensation on L2, L3, and L4 dermatomes on the thighs. Left ankle jerk was +2, right ankle jerk was +1, knee jerks were absent bilaterally, and Lasegue's sign was positive bilaterally. With respect to intervertebral disc syndrome, the examiner noted that no medical certificates were issued by a physician for strict bed rest during that last year. The diagnosis was L5-S1 bulging disc and desiccated disc with L1-L3 hemangioma by MRI, lumbar paravertebral myositis and clinical bilateral L5- S1 lumbar radiculopathy. VA outpatient treatment records, dated from April 2000 to March 2006, note the veteran's complaints of low back pain. But these records consistently indicate that his range of motion is intact, and that he has adequate muscle tone, no deformities, and no gross motor and sensory deficit. During a more recent May 2006 VA compensation examination, the veteran complained of low needle like back pain with radiation to his inguinal area down to his feet associated with numbness in his anterior thigh and cramps in his calves and thighs. He said he needed his wife's help for bathing, toileting, and dressing. He was able to walk unaided a few steps and had a slow, guarded gait. Upon attempting to conduct range-of-motion testing, the examiner noted the veteran was not doing any kind of movements, claiming severe pain. The examiner was unable to state whether the veteran was additionally limited by pain, fatigue, weakness or lack of endurance following repetitive use of the thoracolumbar spine without resorting to speculation because the veteran refused, claiming severe pain and that he could fall. There was no muscle spasm or postural abnormality of the back or fixed deformities. The examiner noted diminished pinprick sensation in the legs, not following any specific dermatomal pattern (nonradicular), and positive Lasegue's sign bilaterally. There was no muscle atrophy of the lower extremities, normal muscle tone of the lower extremities, and muscle strength could not be reported due to poor muscular effort by the veteran, again claiming pain. Knee and ankle jerks were absent bilaterally. The veteran had not been prescribed bed rest by a physician due to acute low back pain during the last 12 months. The diagnosis was L5-S1 bulging disc with desiccated disc at L1-L3, hemangioma L1-L3 by MRI, lumbar paravertebral myositis and clinical bilateral L5-S1 radiculopathy. A September 2006 report of an MRI includes impressions of mild degenerative changes in the lumbar spine, minimal bulging annulus at L5-S1, and narrowing of both neural foramina at L5-S1. The veteran had yet another VA compensation examination in April 2007. He complained of daily, constant, moderate low back pain with radiation down into his left leg. He said his back condition was the same as it was during the prior May 2006 evaluation. He also reported symptoms of numbness, paresthesias, dizziness, fatigue, decreased motion, and spasms. He indicated that, during the past 12 months, he had experienced one episode of severe back pain for which he went to an orthopedic surgeon. He was treated with injection and rest for several days. He was not specific in terms of the exact date of that episode. Objective findings included bilateral spasm, guarding, pain with motion, tenderness, and weakness. These symptoms were not severe enough to be responsible for abnormal gait or abnormal spinal contour. He was described as having an antalgic gait and lumbar lordosis. Bilateral hip extension, knee extension, ankle dorsiflexion and plantar flexion, and great toe extension were all 4/5. Sensory examination for vibration, pinprick, light touch, and position sense was 1/2 on the left and 2/2 on the right. The examiner noted L5-S1 dermatomal distribution with loss of sensation observed on left leg. Reflex examination revealed bilateral knee and ankle jerk of 1+ and normal bilateral plantar flexion. There was no thoracolumbar spine ankylosis. Range of motion testing revealed flexion of zero to 20 degrees active and passive with pain beginning at 15 degrees, extension of zero to 15 degrees active and passive with pain beginning at zero degrees, bilateral lateral flexion and bilateral lateral rotation of zero to 20 degrees active and zero to 30 degrees passive with pain beginning at 15 degrees. Pain on repetitive use was noted on each range of motion, but there was no additional loss of motion on repetitive use of the joint. Lasegue's sign was positive on the left. The diagnoses were mild degenerative changes in the lumbar spine by MRI, minimal bulging annulus at L5-S1 by MRI, narrowing of both neural foraminal at L5-S1 by MRI, clinical evidence of left L5-S1 radiculopathy, and lumbar myositis. Records from the Social Security Administration reflect that the veteran's primary diagnosis was herniated L5-S1 disc with nerve root compression. No secondary diagnosis is identified. The date of these records is prior to the period relevant to this claim. In deciding this claim, it initially requires reiterating that, under the criteria in effect prior to September 2003, an evaluation higher than 40 percent is not possible unless the veteran has residuals of a vertebral fracture or ankylosis, and he clearly does not. The evidence of record clearly shows he has never demonstrated or reported these necessary symptoms. Therefore, an increase under these criteria is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289 (2002). Under the amended criteria, the revisions that took effect in September 2003, the veteran's disability also does not warrant an increase to a 50 percent rating. To qualify for this increase, he would have to demonstrate ankylosis of his thoracolumbar spine - which, again, he simply does not have. Similarly, his disability also does not warrant an increase to a 60 percent rating for intervertebral disc syndrome based on incapacitating episodes because incapacitating episodes resulting in physician-prescribed bed rest has not been shown. The evidence must show that he had incapacitating episodes of at least six weeks over the past twelve months to warrant an increase to a 60 percent rating. While he has indicated that he has had incapacitating episodes, they must be shown to have required bed rest prescribed by a physician and treatment by a physician. There is insufficient evidence to show that any incapacitating episodes the veteran may have experienced resulted in his physician prescribing bed rest. Moreover, he has not shown that he experienced these incapacitating episodes with the required frequency to receive a rating higher than 40 percent. When specifically questioned about this during his most recent April 2007 VA compensation examination, he was unable to provide specific, or indeed even approximate, dates when he had experienced the incapacitating episodes, much less information as to when his treating physician had consequently prescribed bed rest. Therefore, an increased rating under these revised criteria is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). Additionally, as mentioned, an increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. 202 (discussing 38 C.F.R. §§ 4.40, 4.45). The 40 percent evaluation assigned for the veteran's low back disorder is the maximum schedular rating assigned for limitation of motion of the spine under both the previous and revised criteria. See Johnston, supra. So he is ineligible for an increased rating using the DeLuca factors. Based upon the guidance of the Court in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the orthopedic symptoms associated with the veteran's service-connected low back disorder have remained constant throughout the course of the appeal. Indeed, he indicated as much during his most recent April 2007 VA compensation examination, stating that his condition had not changed since his prior evaluation in May 2006. Thus, his rating may not be staged, except for, as will be explained, assigning separate 10 percent ratings for the neurological impairment (i.e., radiculopathy) affecting his lower extremities, particularly his left leg. So he will receive additional compensation for this, apart from the compensation he already is receiving for his underlying low back impairment. As grounds for doing this, the Board points out that Diagnostic Codes 5235 to 5243 require consideration of the veteran's neurological findings separate from his orthopedic manifestations. The RO, instead, has assigned a single, collective 40 percent rating for the veteran's low back disability - without parceling out the additional neurological impairment he has from the radiculopathy affecting his lower extremities. The evidence of record shows the veteran has repeatedly complained of pain radiating from his low back down into his legs, mostly his left leg, but also at times his right leg. The VA examination reports in May 2006 and April 2007, as well as the July 2003 statement from his private physician, confirm that he experiences this lower extremity radiculopathy/sciatic neuropathy. This evidence, collectively, shows symptoms and assessments of muscle spasm, diminished sensation, weakness and radiculopathy into both the left and right lower extremities. These records generally characterized the left leg radiculopathy as worse than the right leg and the April 2007 VA examination found clinical evidence of left L5-S1 radiculopathy only. These records do not show muscle atrophy, as would be evident if, for example, the lower extremity muscles were not being used. Upon consideration of the three VA examination reports and the statement from the veteran's private physician, which, again, all show findings of lower extremity neurological impairment (radiculopathy) resulting in decreased sensation and impaired reflexes - albeit no muscle atrophy, the Board finds that the veteran's radiculopathy symptoms are primarily sensory in nature and therefore tantamount to incomplete paralysis of the sciatic nerve. The VA examiners and his doctor have mostly described the severity of the sensory deficits as "mild." And while their use of this descriptive term is not altogether dispositive of the severity of the radiculopathy, it is nonetheless probative evidence to be considered in making this important determination. See 38 C.F.R. §§ 4.2, 4.6. Accordingly, the Board finds that the veteran is entitled to additional, separate 10 percent ratings for the neurological manifestations (radiculopathy) affecting his lower extremities under Diagnostic Code 8520. This additional compensation is aside from the existing 40 percent rating for his underlying low back impairment. The Board finds no evidence of organic changes, such as muscle atrophy, trophic changes, etc., which would warrant a higher rating or demonstrate more than a mild degree of incomplete paralysis of the sciatic nerve. In sum, the weight of the credible evidence shows the orthopedic manifestations of the veteran's low back disability warrant no more than a 40-percent rating. Whereas the Board also finds that the weight of the credible evidence demonstrates that he is entitled to separate 10 percent ratings, but no higher, for the neurological manifestations of his low back disability, in the form of the radiculopathy affecting his lower extremities. The "benefit-of-the- doubt" rule has been considered in making this decision to assign these separate 10 percent ratings. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). ORDER The claim for a rating higher than 40 percent for the underlying low back disability is denied. But separate 10 percent ratings are granted for the neurological manifestations of this disability (specifically, mild incomplete paralysis of the sciatic nerves on account of the radiculopathy affecting the lower extremities). REMAND As required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations, irrespective of whether the veteran raised them, including § 3.321(b)(1), which governs extra-schedular ratings. Thus far, there are various clinical findings of record providing some insight into the veteran's capacity for gainful employment, in relation to his service-connected disabilities, though without necessarily resolving this issue. Specifically, the evidence in support of the assignment of an extra-schedular rating includes a July 2003 statement from a private physician concluding the veteran's conditions are permanent and totally incapacitating for all types of work. In addition, the May 2006 VA examination report notes that he stated that he had been unemployed and disabled since 1994 due to his low back condition and due to the side effects of the medication with sedation. As well, the report of his more recent May 2007 VA examination notes that he stated that he had been unable to work since 1994 because of pain medication and psychiatric medication, which interfere with his regular duties. The evidence against assigning an extra-schedular rating includes the same May 2006 VA examination report, which reflects the veteran was generally uncooperative during the examination, refusing to attempt range of motion testing because of pain, and records from the SSA reflecting that, in addition to his service-connected low back disability, he also has tendonitis in his shoulders, calcaneal spurs syndrome, and an anxiety disorder with depression complicated by physical limitations and constant pain, which is not a service-connected disability. So there is insufficient objective evidence to determine whether the veteran is entitled to an extra-schedular rating. The evidence addressing this issue is conflicting. Moreover, the Board is precluded by 38 C.F.R. § 3.321(b)(1) from assigning an extra-schedular rating in the first instance. Instead, the Board must refer any claim that meets the criteria for consideration of an extra-schedular rating to the Director of Compensation and Pension Service or the Under Secretary for Benefits. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The AMC must send the veteran appropriate notice and advise him that, under 38 C.F.R. § 3.321(b), the governing norm in consideration of such a claim is that of 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. Accordingly, this ancillary issue is REMANDED for the following development and consideration: 1. Send the veteran and his representative a VCAA notice letter informing them that, to obtain greater compensation on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1), there must be exceptional circumstances such as marked interference with employment or frequent periods of hospitalization to render impractical the application of the regular rating schedule standards. 2. Submit this case to the Director of Compensation and Pension Service or the Under Secretary for Benefits for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). 3. If any benefit sought on appeal remains denied, send the veteran a supplemental statement of the case and give him time to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning this ancillary issue the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This ancillary issue 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. 2005). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs