Citation Nr: 1007487 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-31 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for chronic low back pain with L5-S1 radiculopathy to bilateral lower extremities, to include a separate rating for sciatica of the left lower extremity. 2. Entitlement to a disability in excess of 20 percent for residuals of a right wrist fracture. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from January 1966 to January 1968, and from November 1980 to April 1998. The appeal comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied entitlement to a rating in excess of 40 percent for chronic low back pain with L5-S1 radiculopathy to bilateral lower extremities, and increased his disability rating to 10 percent for residuals of a right wrist fracture. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. The Veteran's residuals of a right wrist fracture has not manifested ankylosis. 3. The Veteran's low back disability has not manifested unfavorable ankylosis of the entire thoracolumbar spine or symptoms that more nearly approximate incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 4. Radiculopathy of the left lower extremity and/or sciatica is attributable to the Veteran's service connected lumbar spine disability and is manifested by 'moderate' disability with pain, slight sensory loss, and numbness. There is no evidence of severe sensory loss or foot drop, paralysis, constant weakness, or muscle atrophy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a low back disability, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). 2. The criteria for a rating in excess of 10 percent for residuals of a right wrist fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5215 (2009). 3. The schedular criteria for a rating of 20 percent, but no greater, for sciatica of the left lower extremity have been met, effective November 2, 2006. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled. In this case, the Veteran filed his increased rating claims in September 2006 (wrist) and February 2007 (back). Thereafter, he was notified of the provisions of the VCAA by the RO in correspondence dated in August 2007. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding VCAA. Subsequently, the claims were reviewed and a supplemental statement of the case (SSOC) was issued in November 2009. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir 2007). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." See 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to this matter was provided in August 2007. The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. A review of the claims file also shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims during the course of this appeal. His service treatment records and post-service VA and private treatment records have been obtained and associated with his claims file. The Veteran has also been provided with VA medical examinations in August 2007 and September 200. The Board finds the case is adequately developed for appellate review. Law and Regulations The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (Schedule). To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (2009). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2009). In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2009). The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Court held that in evaluating a service-connected disability, 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 must be considered. The Court also held that, when a Diagnostic Code does not subsume 38 C.F.R. §§ 4.40 and 4.45, those provisions are for consideration, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Increased Rating for Residuals of a Fractured Right Wrist The Veteran is assigned a 10 percent rating for residuals of a fractured right wrist, effective September 27, 2006, under Diagnostic Code 5299-5215. When a veteran is diagnosed with an unlisted condition, it must be rated under an analogous diagnostic code. See 38 C.F.R. §§ 4.20, 4.27 (2009). The diagnostic code is "built- up" by assigning the first two digits from that part of the schedule most closely identifying the part of the body involved and then assigning "99" for the last two digits for all unlisted conditions. See 38 C.F.R. § 4.27 (2009). Then, the disability is rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. See 38 C.F.R. §§ 4.20, 4.27 (2009). Therefore, the Veteran's service-connected residuals of a right wrist fracture are rated according to the analogous condition of limitation of extension of the wrist under Diagnostic Codes 5299-5215. 5003 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2009). 5214 Wrist, ankylosis of: Major Minor Unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation 50 40 Any other position, except favorable 40 30 Favorable in 20º to 30º dorsiflexion 30 20 Note: Extremely unfavorable ankylosis will be rated as loss of use of hands under diagnostic code 5125. See 38 C.F.R. § 4.71a, Diagnostic Code 5214 (2009). 5215 Wrist, limitation of motion of: Majo r Minor Dorsiflexion less than 15º 10 10 Palmar flexion limited in line with forearm 10 10 See 38 C.F.R. § 4.71a, Diagnostic Code 5215 (2009). Factual Background and Analysis VA progress notes dated from February 2006 to July 2009 show that the Veteran was treated for a right wrist pain by physical therapy, medication, and surgery. In a February 2006 VA progress note, the Veteran complained of an increase in swelling to the point where he could not bend his wrist. The examiner diagnosed a chronic nonunion of the lunar styloid fracture and a possible triangular fibrocartilage complex rupture. In a March 2006 VA progress note the examiner found significant effusion to his wrist especially over the ulnar styloid exquisitely tender to palpation, limited range of motion secondary to pain and swelling but grossly neurovascularly intact with the median, radial and ulnar distributions. In a May 2006 VA progress note, the examiner diagnosed arthritis in the wrist joint which would be age elated or possibly old trauma, but noted that his primary problem was on the ulnar side. The Veteran reported he received a cortisone injection. In an October 2006 private follow-up report, the Veteran was noted to have undergone arthroscopy of the right wrist, debridement TFCC tears times two, and arthroscopic excision of ulnar styloid, right wrist. Upon examination, the examiner found some aching discomfort and weakness of grip. It was also reported that the Veteran had 70 degrees of wrist extension and 50 degrees of flexion with satisfactory digital motion. In a November 2006 private follow-up report, the examiner found some weakness of grip and grasp, and some mild to moderate ulnar swelling. It was also reported that the Veteran had 65 degrees of wrist extension and 45 degrees of flexion. In a February 2007 private follow-up report, the Veteran stated he had no pain at rest and only minor pain with heavy lifting. In an August 2007 VA examination report, the Veteran complained of right hand cramping and contracting of fingers subsequently, wrist pain and hand swelling, and treatment with physical therapy. Symptoms such as giving way, instability, pain, weakness, and incoordination, decreased speed of joint motion, warmth, redness, swelling, and tenderness were also reported. The Veteran denied stiffness, dislocations, locking episodes, and effusions. Upon examination, the examiner found nonunion of the ulnar styloid, painful, abnormal right wrist. The examiner diagnosed chronic non-union fracture distal ulna styloid process. The examiner further noted effects on usual daily activities such as chores, exercise, sports, recreation, traveling, and moderate effect on feeding. Range of motion findings was dorsiflexion to 70 degrees, palmar flexion to 55 degrees, radial deviation to 17 degrees, and ulnar deviation to 18 degrees. Also reported was objective evidence of pain, no additional limitations after three repetition of range of motion, and no joint ankylosis. In an October 2009 VA examination report, the examiner found swelling and deformity on the ulnar aspect of the right wrist, no acute tenderness, and the range of motion of the right wrist was flexion to 70 degrees with pain, extension to 65 degrees with pain, ulnar deviation pain at 25 degrees, radial deviation at 20 degrees without pain. The examiner noted that the Veteran could not do his occupation, but could do his daily activities. It was also reported that there was no additional limitation following repetitive use, no flare- ups, and no instability of the joint. The Board notes that under 38 CFR 4.71a, Diagnostic Code 5215, a 10 percent rating is the highest possible schedular rating without a showing of ankylosis. The United States Court of Appeals for Veterans Claims has defined "Ankylosis" as "immobility and consolidation of a joint due to disease, injury, or surgical procedure, Dorland's at 91." Shipwash v. Brown, 8 Vet App 218 (1995). In this case, the Veteran's records show no evidence of ankylosis. The Board also has considered whether an increased rating would be warranted under an alternative diagnostic code. As the right wrist is considered one major joint, see 38 C.F.R. § 4.45, the provisions of Diagnostic Code 5003 do not allow for a higher rating in this case. Consequently, a rating in excess of 10 percent for residuals of a right wrist fracture, to include arthritis, is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5214, 5215. See also Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of a diagnostic code should be upheld so long as it is supported by explanation and evidence). Increased Rating for Lumbar Spine Disability The Veteran is assigned a 40 percent rating for chronic low back pain with L5-S1 radiculopathy to bilateral lower extremities, referred to as a low back disability, effective May 1, 1998, under Diagnostic Code 5243. Under the current rating criteria, degenerative arthritis of the spine (designated at Diagnostic Code 5242) is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Intervertebral disc syndrome (designated at Diagnostic Code 5243) is rated either pursuant to the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Spine 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 ***Evaluate intervertebral disc syndrome (preoperatively or postoperatively) 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 under Sec. 4.25. General Rating Formula for Diseases and Injuries of the Spine: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): Ratin g 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 unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 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 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine 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 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, 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. 38 C.F.R. § 4.71a (2009). Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes Intervertebral disc syndrome Ratin g With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60 With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40 With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 Note (1): 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. See 38 C.F.R. § 4.71a (2009). Factual Background and Analysis VA progress notes dated from February 2006 to July 2009 show that the Veteran was continuously treated for a low back pain by physical therapy, medication, and surgery. A MRI report dated in November 2006 found spinal canal stenosis L3-L4 with extruded disc into the left lateral recess predominantly affects the left L4 root. In a June 2007 private operative report, the examiner noted that the Veteran underwent an L3-4-5, S1 bilateral laminectomies, mesial facetectomies, and formaminotomies with excision of herniated disc at left L3-4 and right L3-1 posterolateral bone fusion with autograft. In a July and October 2007 private follow-up report, the Veteran stated he was walking up to six miles a day, had no back or leg pain, and that he was doing very well. He denied any weakness and any bowel or bladder issues. On physical examination, the examiner found he was able to flex and extend without pain. In an August 2007 VA examination report, the Veteran complained of back pain into the right buttock, numbness and tingling of the bilateral lower extremities and that lengthy physical therapy made no improvement. The examiner that the Veteran reported urinary frequency, nocturaia, erectile dysfunction, numbness, paresthesias, leg or foot weakness, and falls related to his claimed back disability. The examiner further noted a history of fatigue, decreased motion, stiffness, weakness, spasms, and constant moderate pain with no radiation of pain. No incapacitating episodes for the thoracolumbar region were reported, and aids include a cane and brace. The examiner reported no thoracolumbar spine ankylosis. Range of motion findings included flexion to 70 degrees, extension to 15 degrees, left lateral flexion to 30 degrees, right lateral flexion to 23 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 15 degrees. There was reported objective evidence of pain. There were no additional limitations after repetition. The examiner referenced a December 2006 MRI report which found lumbarized S1, minimal dextroscoliosis, moderate degenerative changes of the endplates, discs, and facet joints, no compression fracture, disc bulging and facet arthropathy from L2-3 to L5-S1. In June 2008, the Veteran underwent a re-exploration of the left L5-S1 with a linotomy and discectomy. In a July 2008 private follow up note, the Veteran stated that his preoperative leg pain was gone, but that he recently developed some increased low back pain and was having trouble bending over. Upon physical examination, he was able to flex to 45 degrees, and extension did not bother him. A January 2009 VA progress note reported full lumbar flexion and decreased lumbar extension to 10 degrees. Increased pain with lumbar flexion and lumbar extension was also reported. In a September 2009 VA examination, the examiner noted that the Veteran had range of motion findings including forward flexion painful at 60 degrees, backward extension painful at 30 degrees, lateral flexion and rotation painful to the right at 30 degrees, and left at 35 degrees. Also noted were painful motion, spasm, and tenderness of the L5-S1 spine, and no weakness. The examiner indicated that he had no incapacitating episodes in the past 12 months. The examiner reported that he could do daily activities, could not lift or carry, could walk a half a block, and that climbing, kneeling, bending, twisting, pulling, and pushing are restricted due to pain. After a review of all of the evidence of record, the Board finds that the Veteran's service-connected low back disability has not manifested symptoms that more nearly approximate incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, as required for a 60 percent disability rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2009). In fact, both the August 2007 and September 2009 VA examiners noted no incapacitating episodes. Considering an alternate rating, the Veteran's service- connected recurrent low back pain has not manifested ankylosis of the entire thoracolumbar spine, as required for a higher disability rating of 50 percent under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a (2009). The various VA examinations and other clinical measures of the Veteran's spine, even with consideration of additional limitations due to pain or during flare-ups, reflect ranges of motion well beyond that of ankylosis. For example, the September 2009 VA spine examination report reflects forward flexion limited to 60 degrees (limited by pain). For no period during the increased rating claim has the Veteran's service-connected low back disability manifested ankylosis of the entire thoracolumbar spine, as required for a higher disability rating of 50 percent under the General Rating Formula for Diseases and Injuries of the Spine. See id. Even considering the Veteran's subjective complaints of pain in his low back, the evidence of record does not demonstrate any additional limitation of motion or functional loss in response to repetitive motion that would support a rating in excess of the 40 percent for any period of increased rating claim on appeal. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2008); see also 38 C.F.R. §§ 4.45, 4.59. As indicated above, the General Rating Formula also directs that neurological manifestations of should be rated separately from orthopedic manifestations. Although an evaluation in excess of 40 percent during this time period cannot be established under the regulations pertaining to disabilities of the spine, the Veteran's radiculopathy of the left lower extremity should be evaluated separately. In a November 2006 VA progress note, the Veteran complained of low back pain and left leg numbness, with a severe shooting pain in the left leg. Upon examination, the examiner found +1 reflex on the left lower extremity, +2 on the right, decreased strength on the left lower extremity about +4, and +5 on the right. In a June 2007 private treatment note, the examiner found some subtle quad weakness on the left side, sensation decreased at L5-S1 as well as L4 on the left, and reflexes +2 on the right knee and absent on the left. The examiner further referenced a recent MRI scan which found some stenosis as well as sizeable disc herniation on the left which would cause L4 radiculopathy. In a March 2008 VA progress note the Veteran complained of a recurrence of his left-sided sciatica. The examiner noted that the symptoms were consistent with his previous episodes of back problems. Upon examination, the examiner found straight leg raising test was positive at about 20 to 30 degrees on the left, motor exam was normal, and reflexes were normal in the left lower extremity. The examiner diagnosed sciatica. In a May 2008 private physician report, the physician reported complaints of significant pain in the low back extending to the left buttock and down the posterior thigh and calf with physical examination revealing sensation decreased to touch and pinprick in the lower aspect of the left leg in both an L5 and S1 distribution. The examiner also noted straight leg raising positive on the left and negative on the right. A January 2009 VA diagnostic report found no electro- diagnostic evidence of a peripheral neuropathy, lumbar radiculopathy affecting the L4/L5/S1 nerve roots, lumbar plexopathy or sciatic nerve neuropathy. In a March 2009 VA pain clinic note, the examiner found absent patella reflex on the left and no feeling for light touch below his left knee at all. The examiner opined that the Veteran clearly had left lumbar nerve dysfunction despite the negative EMG as he has strong clinical sign supporting the diagnosis. In a September 2009 VA internal medicine note, the examiner noted that he was recently placed with a spinal chord stimulator. The examiner reported that the Veteran has chronic numbness and tingling in his feet and that has slightly improved. It was further reported that the Veteran's history was significant for lumbar spine laminectomy of L5-S1 and sciatica as a result of that. In this case, the Board has determined that there are objective findings of neurologic manifestations attributable to the Veteran's lumbar spine disability that warrant the assignment of a separate 20 percent evaluation for neurological impairment of the left lower extremity under Diagnostic Code 8520, effective November 2, 2006, the date of the first complaints of left leg numbness and shooting pain. The Board reaches this conclusion based on the history of complaints of pain and numbness in his left leg, and the May 2009 VA progress note which found absent patella reflex on the left and no feeling for light touch below his left knee. Therefore, the Board concludes that the evidence supports a rating under the 20 percent criteria for moderate incomplete paralysis of the sciatic nerve under Diagnostic Code 8520. However, the criteria for a higher 40 percent rating under Diagnostic Code 8250 have not been met. See 38 C.F.R. § 4.7. The Veteran is still capable of walking, and had improvement with the spinal chord stimulator. There is no evidence of severe sensory loss in his left lower extremity. Although present, his left lower extremity sciatica is not characterized by foot drop, paralysis, constant weakness, bowel or bladder impairment requiring absorbent material, or muscle atrophy. Consequently, his radicular pain and some loss of strength in his left lower extremities are, at most, moderate in degree, warranting only the separate 20 percent rating. 38 C.F.R. § 4.7. Both Claims The Board has considered 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995), along with the Veteran's subjective complaints of pain. However, the September and October 2009 VA examination reports reported no objective evidence of additional loss of motion or function of the right wrist or low back, fatigue, weakness, or lack of endurance upon repetition. Therefore, the disability picture for the Veteran's right wrist and low back disabilities do not more nearly approximate the criteria for any higher rating than that assigned. For all the foregoing reasons, the Veteran's claims for entitlement to a rating in excess of 40 percent for a low back disability and 10 percent for residuals of a fractured right wrist must be denied. The Board has considered staged ratings, under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the service-connected low back or right wrist disabilities that would take the Veteran's case outside the norm so as to warrant the assignment of an extraschedular rating. Consequently, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). As the Veteran has had a total rating due to unemployability (TDIU) primarily as a result of his service-connected disabilities, remand or referral of a claim for a TDIU is not necessary under the Court's ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 40 percent for chronic low back pain with L5-S1 radiculopathy to bilateral lower extremities is denied. Entitlement to a disability in excess of 10 percent for residuals of a right wrist fracture is denied. Entitlement to a disability rating of 20 percent for sciatica of the left lower extremity as secondary to service-connected low back disability as of November 2, 2006 is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs