Citation Nr: 0815225 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 06-31 642A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 40 percent for lumbosacral strain with degenerative disc disease, to include radiculopathy of the lower extremities. REPRESENTATION Appellant represented by: Lawrence D. Levin, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran had active duty service with the United States Air Force from October 1962 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied an increased evaluation for a low back disability. In January 2008, the veteran, through his representative, moved for advancement of his case on the docket due to age and his declining health. That motion was granted in February 2008. The veteran presented testimony at a February 2008 personal hearing, held before the undersigned Acting Veterans Law Judge via videoconference from the RO. The veteran requested, and was granted, a 30 day extension in which to file additional medical evidence, which has now been received by the Board. Further, the Board has accepted the veteran's request to make a decision on the record, without a remand for additional evidentiary development, as a waiver of initial consideration of the newly submitted evidence by the agency of original jurisdiction. The veteran appears to have raised new claims of service connection for left and right knee disabilities, left and right hip disabilities, and a stomach disorder, all as secondary to the service connected low back disability. Moreover, the Board notes that the veteran has repeatedly alleged that he is unable to work due to his service connected disabilities. In light of the decision here, the veteran meets the schedular eligibility requirements for a total disability rating based on individual unemployability. As per Policy and Procedures Manual M21-1MR IV.ii.2.F.25.h and Norris v. West, 12 Vet. App. 413 (1999), a claim for benefits may be inferred. These issues are referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's lumbosacral strain with degenerative disc disease is manifested by limitation of flexion to less than 30 degrees, without findings of favorable or unfavorable ankylosis; the major limitation is caused by chronic pain. 2. Chronic right lower extremity radicular pain is diagnosed as of May 16, 2003; doctors note mild impairment due to right lower extremity radiculopathy beginning December 12, 2005. 3. Chronic left lower extremity radicular pain is diagnosed as of December 12, 2005, when doctors noted mild impairment of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for lumbosacral strain with degenerative disc disease are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.71a, Diagnostic Code 5237, Note (5) (2007). 2. A separate 10 percent evaluation for right lower extremity radiculopathy is warranted from December 12, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.71a, Diagnostic Code 5237, Note (1), 4.124a, Diagnostic Code 8520 (2007). 3. A separate 10 percent evaluation for left lower extremity radiculopathy is warranted from December 12, 2005. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.71a, Diagnostic Code 5237, Note (1), 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The claimant 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 notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims has interpreted the duty to notify in the context of specific types of claims. For an increased-compensation claim, as here, 38 U.S.C.A. § 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, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by 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. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, 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, supra. Here, the VCAA duty to notify has not been fully satisfied. The notice letter sent to the veteran in April 2005 provided sufficient notice of what evidence and information was generally required to substantiate the claim, as well as the respective obligations of the veteran and VA in obtaining such evidence and information. It requested that the veteran submit any evidence in his possession. It did not, however, inform the veteran of the specific range of motion benchmarks used to evaluate back disabilities. The notice instead informed the veteran that he must show his service connected disability had increased in severity. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores, 22 Vet. App. 37 ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post- adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre- adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. 37. In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication, and adjudication may proceed. While the veteran has not been provided with notice of the specific range of motion measurements and other benchmarks included in the criteria applicable to evaluation of his low back disability, he has demonstrated actual knowledge of those criteria, rendering the defect in notice non-prejudicial. At the February 2008 videoconference hearing before the undersigned, the veteran and his representative discussed the veteran's range of motion of the lumbar spine; the additional impact of factors such as pain, weakness, and fatigue on his functional ability; and the affect of the disability on the veteran's employment and daily life. They additionally detailed all manifestations of the low back disability, to include lower extremity radiculopathy. In the absence of prejudice to the veteran, adjudication of the claim for increased evaluation may proceed. VA additionally has a duty to assist the claimant in the development of the claim. This duty includes assisting in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran submitted private treatment records from Dr. BSG, Dr. RNS, and the Hospital at the University of Pennsylvania. He was provided an opportunity to set forth his contentions during the hearing before the undersigned Acting Veterans Law Judge. The veteran was afforded VA medical examinations in May 2005 and August 2006. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. There is no evidence of regular VA treatment, and the veteran has not supplied requested releases for the full records of his private providers. The Board notes that at his February 2008 hearing, the veteran and his representative requested that no additional evidentiary development be undertaken, as there was no outstanding evidence and, they felt, no need for an additional VA examination. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. Adjudication of the claim for increased evaluation may proceed. Legal Criteria Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Compensation for service-connected injury is limited to those claims which show present disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Factual Background The veteran underwent a VA spine examination in May 2003, in connection with an earlier claim for increased evaluation. At that time, the veteran complained of pain in the low back with intermittent radiation down the right leg. The right leg was also weak at times. The veteran took Motrin for back pain. On physical examination, there was mild to moderate spasm in the lumbar region. Forward flexion was limited to 50 degrees, extension was to 10 degrees, and lateral rotation and lateral flexion were each to 15 degrees bilaterally. Deep tendon reflexes were symmetrical, and sensory examination was unremarkable. Strength was 5/5. Ankle reflexes were preserved. The examiner diagnosed a lumbosacral strain/sprain syndrome with radicular features, with no evidence of fatigability or incoordination. The doctor opined that the veteran's condition was subject to progression. A February 2004 VA x-ray report shows degenerative changes of the facets at L5-S1, which the interpreter opined may be causing the veteran's complaints of hip pain. The veteran was examined in connection with the current claim in May 2005. He stated that he had developed arthritis and degenerative disc disease of the lumbar spine; the veteran supplied an MRI showing degenerative changes. He complained of achy pain, tightness in the low back muscles with stiffness and spasm. He reported that three or four days a month his symptoms flared and he had trouble getting out of bed. He used a back brace and a cane when walking his dog. He was able to walk three blocks before resting. He reported intermittent pain radiating down the right leg, but could not give clear details as to the frequency or severity of this pain. The veteran had not been bed ridden in the past year, but he did state he was semi-retired and could not work as an electrician. Bending, turning, pushing, and twisting were problematic. Physical examination revealed tenderness and spasm of the paravertebral lumbar spine muscles. Forward flexion was to 40 degrees, extension was to 10 degrees, lateral rotation was to 10 degrees bilaterally, and lateral flexion was to 20 degrees bilaterally. Repeated movements produced no increase in pain, fatigue, weakness, or incoordination. Pain was the limiting factor on movement. Neurological examination showed 5/5 muscle strength, with intact ankle reflexes and symmetrical deep tendon reflexes. Sensory examination was unremarkable. The examiner diagnosed sprain/strain with progression to degenerative joint disease. The examiner noted that the veteran was a "non-specific" historian and the degree of impairment during flare-ups could not be estimated due to the fluctuation in the veteran's descriptions of symptoms. A private doctor, Dr. RNS, examined the veteran in December 2005 and submitted a summary report of his findings. The veteran reported that his back had begun hurting regularly in approximately 1993, and had grown worse since 2003. The pain was no radiating down his legs. He reported instability, a bucking sensation of the legs, and weakness of the back and legs. The veteran wore a lumbar support. He experienced flare-ups of symptoms weekly; they had formerly been monthly. Physical examination showed a flattening of the lumbar lordosis and tension and tenderness in the paralumbar muscles. Pain is aggravated by attempted flexion or extension. Straight leg raises caused "pulling." No significant neurological asymmetry or pathological reflexes were noted. A June 2003 MRI showed desiccation and protrusion of the discs at L5-S1, L4-L5, and L3-L4 levels. Dr. RNS diagnosed a lumbosacral sprain as well as discogenic disease and facet arthropathy causing foraminal stenosis and sciatica. Although the doctor did not note specific measurements, he reported a limitation of motion of the back, as well as weakness and fatigability of the back and legs. The examiner felt the condition had worsened recently, and stated the veteran could only walk about 11/2 to 2 blocks before resting. During an August 2006 VA examination, the veteran reported that his pain had become constant, and was present every day. He takes over the counter medications for pain. The veteran described tightness and achiness in the lower back, with pain radiating to the legs. He used a cane, but eh examiner related its use to knee problems. The veteran contended that the cane was required due to the back. He does wear a back brace, however. Physical examination revealed tenderness and spasm of the lumbar spine, with forward flexion to 20 degrees, extension to 10 degrees, and lateral rotation and flexion to 15 degrees each, bilaterally. Strength was 5/5 and the sensor examination was unremarkable. Deep tendon reflexes were symmetrical. An antalgic gait was attributed to a knee condition by the doctor. Chronic lower back sprain/strain with degenerative joint disease was diagnosed. There was no restriction of walking due to the back condition. There were mild radicular symptoms of the lower extremities. The veteran had not been bed ridden in the past year. Dr. BSG, a private orthopedist, examined the veteran in December 2006. He had treated the veteran previously following an accident in 2001; the veteran had injured his neck and had upper extremity complaints at that time. The doctor stated that the veteran id not injure his lower back in the 2001 accident. Physical examination showed spasm of the lumbar spine, with limitation of motion to 75 to 80 percent of normal. Deep tendon reflexes were grossly intact in the lower extremities. MRI showed multilevel disc bulges and degenerative disc disease of the lumbar spine. Sciatic pain was adduced on the left with a straight leg raise, but not on the right. The veteran was hospitalized in June and July 2007 due to his diagnosis with pancreatic cancer. A discharge summary from the University of Pennsylvania Hospital shows complaints of chronic back pain. During his videoconference hearing in February 2008, the veteran reported back pain when standing, twisting, or bending. He uses only over the counter painkillers whenever possible to avoid stomach upset, but these are not fully effective. He also restricts his activity level to avoid pain or to recover from strenuous activity. He uses a cane because of balance problems. Flare-ups occur three to four times in six months, and, in the words of the veteran, can be incapacitating for up to two weeks. He will sleep sitting up instead of lying down, and has difficulty getting dressed. The veteran and his representative stressed the degree of impairment of his range of motion, and the effect pain had on his actual functional capacity. The veteran also reported a sharp pain shooting down his legs, with numbness. Following the hearing, the veteran was again evaluated by Dr. BSG. In February 2008, the doctor noted lumbar movement was restricted to 75 percent of normal, and it was painful in flexion and extension. Straight leg raises produced back pain, but no sciatic pain. Deep tendon reflexes were intact. Dr. BSG, an orthopedist, stated that there was no discrete radiculopathy. Analysis Lumbosacral Strain with Degenerative Disc Disease The veteran's low back disability is currently evaluated under Diagnostic Code 5237, for lumbosacral or cervical strain. This Code directs that a general rating formula for back conditions be applied, which provides in pertinent part that a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is available for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is available for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. The Board has given due consideration to evaluation of the low back disability under alternative Diagnostic Codes. Disc disease may be evaluated under Diagnostic Code 5243, for intervertebral disc syndrome. The criteria for that Code provide a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The veteran's decision, without orders from a doctor, to rest for a day or take to his bed or restrict his activity does not meet the definition of an incapacitating episode; in the absence of any evidence that a doctor has ordered the veteran to bed rest, evaluation under these criteria is not to the veteran's advantage. The measured limitation of motion, to less than 30 degrees flexion of the lumbar spine, warrants assignment of a 40 percent evaluation. There is no finding of unfavorable ankylosis of the lumbar spine by private or VA doctors which would warrant assignment of a higher evaluation. Evaluation of a service-connected disability involving a joint rated on limitation of motion, however, requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Board has considered the actual functional impairment of the veteran's lumbar spine disability, but finds that the disability does not rise to the equivalent of unfavorable ankylosis. Unfavorable ankylosis is defined as a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The competent medical evidence of record not only establishes that the spine is not fixed in any position, but shows none of the signs of unfavorable ankylosis. The Board notes that the veteran himself does not describe any of the listed symptoms. In the absence of unfavorable ankylosis or its functional equivalent, the claim for increased evaluation of the lumbar spine must be denied. The Board notes that, in his claim for increase, the veteran refers to the presence of demonstrable deformity of a vertebral body as warranting an increased evaluation. This provision was included in older evaluation standards, which were amended effective in September 2003. However, the provision cited by the veteran is applicable to fractures of the vertebrae, which are not shown here. Moreover, none of the current medical records show deformity of the vertebra; the degeneration of the joint spaces and discs is not the pronounced breakdown and damage contemplated by the older criteria. In sum, after a review of the evidence of record, the Board concludes that the schedular criteria for a disability rating higher than 40 percent for a low back disability are not met. Accordingly, to that extent, an allowance of the benefit sought on appeal is not in order. Lower Extremity Radiculopathy As was noted above, the rating schedule as it applies to spine disabilities was amended effective in September 2003. The amended regulations specifically provide that neurological manifestations of spinal disabilities are to be rated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Previously, the criteria for evaluating many spine disabilities, including lumbosacral strain, included neurological manifestations. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board finds that the diagnosed radicular symptoms of the lower extremities, identified by private and VA doctors as related to the service connected lumbosacral strain with degenerative disc disease, warrant assignment of separate evaluations. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve, which best reflects the anatomical location and physical manifestations of the veteran's disability. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. See 38 C.F.R. § 4.124a. The earliest manifestation of radiculopathy shown in the record is the report to a VA examiner of intermittent radiating pain of the right leg in May 2003. No left leg problems were reported. This means that the condition was present as of the date of receipt of the claim currently under appeal in April 2005. A May 2005 VA examination confirmed the presence of intermittent right leg radiculopathy, and again noted no left leg complaints. That VA examiner was unable to provide any details as to the severity of the condition on that date due to the veteran's poor description. The Board finds that while the right leg condition was present since May 2003, it was not compensable, as the criteria for a compensable rating were not demonstrated. During the December 12, 2005 private examination of Dr. RNS, however, the veteran complained of much more extensive neurological problems of the right and left legs. He reported weakness and a buckling sensation, and stated that the pain radiated down his legs. The examiner diagnosed sciatica and stated that the condition contributed to the veteran's limitations of activity. Subsequent VA and private evaluations continue to show complaints of bilateral radicular pain. In August 2006, a VA examiner stated that the veteran had "mild" radicular symptoms involving the lower extremities; although physical examination was normal, the veteran complained of intermittent pain radiating down the legs. Dr. BSG also described the problems as mild in December 2006, but he also made physical findings of degenerative changes of the spine corresponding to the complaints. The Board notes that Dr. BSG reported only left leg pain at that time, while in February 2008 he found no radicular symptoms. The Board finds that separate evaluations of 10 percent for mild radicular symptoms for the left and right legs are warranted, effective December 12, 2005. Prior to that time, solely the right leg was involved, based on subjective complaints, and the evidence of record shows that the symptomatology was not compensable. As of December 2005, however, radicular symptoms were appearing intermittently in both legs, with a degree of actual functional impairment, as reported by Dr. RSN. The doctor also was able to relate the complaints to physical changes of the spine in diagnosing sciatica. The Board does note that symptoms have alternated between the legs in recent records, and most recently are absent, but at all times the veteran has reported the radiculopathy is intermittent, and the waxing and waning of the complaints appears to be consistent with the nature of the back disability, which is subject to periodic flare-ups. In sum, after a review of the evidence of record, the Board concludes that criteria for separate 10 percent disability ratings for lower extremity neurological impairment are met. However, the criteria for ratings higher than 10 percent are not met. Extraschedular Considerations Finally, the Board has considered whether the veteran should be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for possible application of an extraschedular evaluation. No such referral is warranted under 38 C.F.R. § 3.321(b). The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. There is no evidence of frequent hospitalization for service connected disabilities. Moreover, the rating schedule does provide for higher possible evaluations in this case, which makes its application still practical. The Board acknowledges the opinion of R.N.S. in December 2005 that the veteran's limited range of back motion and fatigability in his back and legs make it "very difficult if not impossible for him to return to his previous job. The physical demands are just too great for [him]." However, the disability ratings assigned are recognition that industrial capabilities are significantly impaired. Van Hoose v. Brown, 4 Vet. App. 361 (1993). There is no indication from the opinion that other types of employment would be precluded. In the Board's view, the type of impairment demonstrated on examination is completely consistent with the disability ratings assigned. In sum, the record when considered as a whole does not indicate that the average industrial impairment from the back disability would be in excess of that contemplated by the assigned evaluations. Nor does it indicate that the veteran's service connected disabilities alone have resulted in marked interference with employment. Accordingly, the Board has concluded that referral of this case for extra- schedular consideration is not in order. ORDER An increased evaluation for lumbosacral strain with degenerative disc disease is denied. A separate 10 percent evaluation for right lower extremity radiculopathy, effective December 12, 2005, is granted, subject to the laws and regulations governing payment of monetary benefits. A separate 10 percent evaluation for left lower extremity radiculopathy, effective December 12, 2005, is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs