Citation Nr: 1111882 Decision Date: 03/24/11 Archive Date: 04/06/11 DOCKET NO. 96-15 671 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for the service-connected degenerative disc disease of the lumbar spine, status post L3-4 hemilaminectomy and L3-4-5 foraminotomies, for the period prior to August 30, 2001 (exclusive of the period from July 29, 1997 to November 30, 1997). 2. Entitlement to an evaluation in excess of 60 percent for the service-connected degenerative disc disease of the lumbar spine, status post L3-4 hemilaminectomy and L3-4-5 foraminotomies, for the period beginning August 30, 2001. 3. Entitlement to an effective date earlier than August 30, 2001 for the grant of a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Esq. WITNESSES AT HEARING ON APPEAL Appellant, spouse and Dr. C.N.B. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1978. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from March 1995 and May 2000 rating decisions issued by the RO, which denied the Veteran's claims for entitlement to an increased rating for his lumbar spine disability and entitlement to a TDIU rating. In September 2002, the Board denied the Veteran's claims for an increased rating for his lumbar spine disability and entitlement to a TDIU rating. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In April 2003, the Court granted a Joint Motion to vacate the September 2002 decision and to remand the matter for further development. In compliance thereof, the Board remanded the issues in April 2004, December 2005 and February 2008 for further development of the record. Additionally, the Veteran testified at personal hearings before the undersigned Veterans Law Judge in June 2002 and June 2005. His attorney and a private physician presented additional statements at a hearing in November 2007. Copies of the transcripts of those hearings are of record. The Board notes the issue of entitlement to an increased rating for the bladder disorder was addressed in a January 2010 statement of the case. Apparently, a timely substantive appeal was not submitted and the appeal as to this matter is not perfected. This issue is not before the Board. The Board also notes that the Veteran's appeal originally included the issue of entitlement to a total rating based on individual unemployability (TDIU). During the pendency of the appeal, the RO, in an April 2009 decision, granted a TDIU rating effective on August 30, 2001, the date the Veteran meet the schedular requirement for assignment of TDIU rating. The Veteran was notified of this decision and did file a Notice of Disagreement (NOD) in response with regard to the effective date of the grant of the TDIU rating. Therefore, the issue has been characterized as noted on the title page of this decision and remains on appeal before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. Throughout the entire period of the appeal, the Veteran's service-connected lumbar spine disability is shown to be productive of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 2. At no time during the period of the appeal has ankylosis of the entire spine been demonstrated by the evidence of record. 3. December 1, 1997 is the first date the Veteran meets the schedular requirements and is shown to be unemployable due to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, the criteria for the assignment of a 60 percent evaluation, but no higher, for the service-connected degenerative disc disease of the lumbar spine, status post L3-4 hemilaminectomy and L3-4-5 foraminotomies have been met for the entire period of the appeal. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.400(o), 4.71a, Diagnostic Codes 5293 (before and after September 23, 2002) and 5243 (after September 26, 2003). 2. The criteria for a rating in excess of 60 percent for the service-connected degenerative disc disease of the lumbar spine, status post L3-4 hemilaminectomy and L3-4-5 foraminotomies were not met at any time during the period at issue. 38 U.S.C.A. § 1155 (West 2002 and Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Codes 5293 (before and after September 23, 2002) and 5243 (after September 26, 2003). 3. With resolution of reasonable doubt in the appellant's favor, the criteria for the assignment of an effective date of December 1, 1997, but no earlier, for the grant of a total rating based on individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 by information provided to the Veteran in correspondence from the RO dated in June 2004, January 2006 and March 2008. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claim and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. 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), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). Effective May 30, 2008, 38 CFR 3.159 was revised to clarify that no duty to provide section 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."38 C.F.R. § 3.159 (b)(3) 2008. 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. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. Notice as to these matters was provided in the letter sent to the Veteran in March 2008. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Lumbar Spine Laws and Regulations- Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings from the time the claim is file until VA makes a final decision. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluation of a service-connected disability involving a joint rated on limitation of motion 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. During the pendency of Veteran's claim, the criteria for intervertebral disc disease, 38 C.F.R. § 4.71a, Diagnostic Code 5293, were revised effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002) ("revised disc regulations"). Further, the remaining spinal regulations were amended and the diagnostic codes renumbered in September 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) ("revised spinal regulations"). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thoracolumbar Spine 38 C.F.R. § 4.71, Plate 5 (2009) 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief 60 Severe; recurring attacks, with intermittent relief 40 Moderate; recurring attacks 20 Mild 10 Postoperative, cured 0 Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. (prior to September 23, 2002) Formula for Rating Intervetebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least six weeks during the past 12 months.... 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months....... 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months...... 10 Note (1): For purposes of evaluations under 5293, 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): 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 chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Effective September 23, 2002 The Spine 5235 Vertebral fracture or dislocation General Rating Formula 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): Rating 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 effective September 26, 2003 Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes 5243 Intervertebral disc syndrome Rating 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. Effective September 26, 2003 Factual Background Historically, service connection for the lumbar spine disability was granted by a Board of Veterans' Appeals decision of March 1986. An April 1986 rating action awarded a 10 percent rating. In March 1994, the rating was increased to 20 percent, effective September 1993. In February 1995, the Veteran filed the current claim for an increased rating for the lumbar spine disability. In the appealed March 1995 rating decision, the RO denied the Veteran's claim for a rating in excess of 20 percent for the lumbar spine disability. Subsequently, in an April 1996 rating decision, the RO increased the evaluation for the lumbar spine disability to 40 percent, effective September 23, 1993. The RO assigned a temporary total evaluation for the lumbar spine disability, effective from July 29, 1997 to November 30, 1997. The 40 percent evaluation was resumed effective December 1, 1997. In the April 2009 rating decision, the RO increased the evaluation for the lumbar spine disability to 60 percent effective August 30, 2001. These increases during the appeal period did not constitute a full grant of the benefit sought. Therefore, the Veteran's claim for an increased evaluation for lumbar spine disability remains on appeal. See AB v. Brown, 6 Vet.App. 35, 39 (1993). VA outpatient treatment records covering the period from December 1995 to January 1996 show treatment during that time for the Veteran's low back problems. In a December 1995 VA treatment record, the Veteran complained of a 4-day history of increased pain with right radicular pain. He was employed as a truck driver and he hauled seed. He could not lie down for long due to pain. His prescribed medications provided no relief of the pain. The pain was localized in the center of the low back and radiated down the right leg to the ankle. Following a physical examination, the diagnosis was degenerative joint disease of the lumbar spine with radicular right leg pain. The Veteran was prescribed three days of bed rest and Motrin (800mg). He was advised to refrain from heavy lifting and report back in 2-3 weeks for follow-up. In a January 1996 follow-up VA treatment record, the Veteran reported that the pain had "dulled" with the prescribed Motrin; however, it was still present and sometimes worse. He also continued to complain of right leg radicular pain but denied symptoms of dysuria, hesitancy, dribbling or other medical problems. Following objective examination, the diagnosis was chronic low back pain, status post exacerbation in early December 1995. The examiner noted there was some improvement but no resolution and no new symptoms. The Veteran was advised to continue taking the prescribed ibuprofen and Tylenol and return to the clinic if new symptoms arose. During an April 1996 VA orthopedic examination, the Veteran complained of an almost constant pain, with an inability to bend and move normally. On physical examination, he ambulated without assistance, and was able to both fully dress and undress himself. Examination of his back showed evidence of mild paraspinous muscle spasm, with a markedly decreased range of motion, but no pain to palpation over the sacroiliac joints. Range of motion measurements showed forward flexion to 45 degrees, with backward extension to 15 degrees, lateroflexion to 25 degrees on both the right and left, and rotation to 15 degrees on the right and 18 degrees on the left. There was evidence of pain on motion, with the Veteran "grunting and groaning" throughout all motions during the course of the examination. The Veteran stated that he was currently able to work as a truckdriver, and to continue with the activities of daily living. At the time of examination, there was no evidence of neurologic involvement. Deep tendon reflexes were 2/4, and symmetrical bilaterally. During a VA examination in July 1996, the Veteran was observed to ambulate with a normal gait. Range of motion measurements of the lumbar spine showed flexion to 80 degrees, with extension to 20 degrees, and no evidence of focal tenderness. Neurologic examination showed motor strength of 5/5 in the lower extremities, in conjunction with intact objective sensation. Deep tendon reflexes were 2+ and symmetrical. At the time of examination, tests of straight leg raising were negative. On subsequent VA examination of the Veteran's spine conducted approximately two weeks later, motor strength was 5/5 in the Veteran's lower extremities. Lower extremity reflexes were approximately 2+ and symmetrical. His gait was within normal limits, and he was able to walk on his heels and toes, and in tandem. He complained of some pain on deep palpation over the lower lumbar spine. Tests of straight leg raising were approximately 50 to 60 degrees on the right side, and 70 to 80 degrees on the left side. On VA orthopedic examination in February 1997, the Veteran complained of pain which never went away. He was employed as a truck driver. Physical examination revealed a greatly decreased range of motion of the lumbosacral spine on flexion, extension, lateral bending, and rotation. The Veteran walked with a cane and an antalgic gait, favoring his right leg. The musculature of the back was within normal limits, and there was no atrophy of the paravertebral spinal muscles, or of any of the other muscle groups in the low back area. Nor was there any evidence of erythema, ecchymosis, or appreciable edema. Range of motion of the lumbar spine was described as extremely limited, with forward flexion to 30 degrees, backward extension to 10 degrees, left and right lateroflexion to 15 degrees, and left and right rotation to 10 degrees. The patellar and Achilles reflexes were 2+/4+ in the left lower extremity, and 3+/4+ in the right lower extremity. In an April 1997 VA treatment record, objective examination showed evidence of spasms in the low back muscles. The assessment was chronic low back pain, disc herniation and rule out lumbar radiculopathy. During the course of a VA outpatient neurosurgical evaluation in June 1997, it was noted that the Veteran should not be doing any heavy lifting. However, other forms of activity would be permissible. In the opinion of the examiner, while prolonged sitting would be problematic for the Veteran, he might well be able to find some gainful employment which took into account his fairly delicate back. A VA record of hospitalization dated in late July 1997 reveals that the Veteran was hospitalized at that time for lumbar stenosis. During the Veteran's hospitalization, he underwent an L3-4 right hemilaminectomy, with foraminotomies at L3, L4 and L5. Following surgery, the Veteran was kept on antibiotics for a period of 24 hours, following which he was "up out of bed ambulating." In a September 1997 private physiatrist examination report, doctor K.F.P. recorded the history of the Veteran's lumbar spine disability. The Veteran complained of constant low back pain with radiation to the posterior right leg. Any activity increased the pain. Lying down or changing positions helped to relieve the back pain. He rated the pain as a 7-8 out of 10. He described the pain as a dull achy pain with occasional sharp pain. His prescribed pain medications included Percocet, Salsalate, Robaxin, Elavil and extra-strength Tylenol. Objectively, he ambulated with the use of a straight cane; he was able to ambulate without the cane. He used the cane for long distance walking and for general support. He had difficulty doing heel and toe walking. He had no problem getting on and off the examination table. He had some difficulty reaching over to put on his shoes and socks. He was not able to squat down and stand up. He had midline scar over the lumbosacral spine with no drainage. He had abnormal straightening of the lumbar lordosis. On palpation, he had diffuse tenderness mostly to the right of the scar. There was some degree of paraspinal muscle spasm bilaterally. There was no reproduction of the pain radiation to the lower extremities. Straight leg raising was 90 degrees bilaterally. There was no significant muscle atrophy. Reflexes were 1+ at both knees and absent in the right ankle (muscle strength was 4/5 in the right ankle dorsiflexion and the right great toe dorsiflexion). He had 40 degrees of forward flexion (with severe pain); 10 degrees of extension; and, 10 degrees of lateral flexion. There was patch decrease of sensation in the dorsum of the right foot. The diagnosis was multiple levels of lumbar spinal stenosis, status post L3-L4 right hemi-laminectomy and foraminotomies at L3, L4, and L5 levels with signs of symptoms compatible with right L5-S1 radiculopathy. On neurosurgical follow-up in September 1997, the Veteran's motor strength was 5/5 in his lower extremities. Reflexes in the lower extremities were described as mildly hyperreflexic. Tandem walk was within normal limits, as was gait, and heel-toe walking. In an October 1997 VA treatment record, the Veteran complained of severe low back pain with intermittent radiation posteriorly to the foot. There was no weakness, paresthesias, bowel or bladder symptoms. Objectively, there was tenderness in the left lumbar paraspinals; negative straight leg raises; and, good reflexes and strength in the lower extremities. The diagnosis was acute low back pain with sciatica. During a November 1997 VA orthopedic examination, the Veteran complained of flare-ups, stating that his back pain came and went. He was no longer employed due to his back disorder. On physical examination, range of motion measurements showed flexion forward to 50 degrees, with extension backward to zero degrees. Lateroflexion to both the right and left was to 20 degrees. Rotation to both the right and left was to 25 degrees. According to the Veteran, he experienced pain in his back with any movement at all. According to the examiner, the Veteran entered his office with apparent severe back pain, barely able to walk across the floor. However, after leaving the office, he was able to walk down the hallway normally, with a normal gait, and apparently normal range of motion. Noted at the time of examination was that the Veteran exhibited no evidence of spasms, or of any apparent weakness. While there was some mild tenderness to palpation over the Veteran's surgical site, there was no other objective evidence of back pain. On VA general medical examination in January 1998, the Veteran complained of "daily and chronic" low back pain, accompanied by continual numbness in the anterior aspects of both lower legs, and hypersensitivity of the soles of his feet. Additionally noted were problems with urinary frequency and urgency, in addition to enuresis on a "once or twice a month" basis. On physical examination, the Veteran exhibited a somewhat antalgic gait, favoring his right side. There was a good range of motion of all extremities, without evidence of limitation or discomfort. Examination of the back revealed bilateral normal musculature, without evidence of spasm or point tenderness. Deep tendon reflexes were +2 and equal. Range of motion measurements of the back showed 30 degrees' forward flexion, with 12 degrees' backward extension, 28 degrees' rotation on the right, and 30 degrees' rotation on the left. Lateroflexion was to 18 degrees on the right, and to 14 degrees on the left. With the Veteran in the supine position, tests of straight leg raising were positive at approximately 48 degrees on the right, and at 24 degrees on the left. However, with the Veteran in the sitting position and distracted, there was negative straight leg raising approaching 75 degrees bilaterally. Nerve conduction studies were essentially within normal limits bilaterally, with no clear evidence of left or right lumbosacral radiculopathy. In a decision of the Social Security Administration of January 1998, it was noted that the Veteran displayed "severe" impairments of multiple levels of lumbar spinal stenosis and degenerative joint disease. Substantial evidence persuaded the evaluator that the combination of the Veteran's medically determinable impairments were of such severity as to prevent him from performing work at any exertional level, except for a very limited range of sedentary (employment). In April 1998, there were received numerous records utilized by the Social Security Administration in their determination of the Veteran's entitlement to benefits. During a March 1999 VA orthopedic examination, it was noted that the Veteran's medical records were available, and had been reviewed. He complained of lower back pain radiating to his left lower extremity, all the way to the ankle. Physical examination showed flexion to 30 degrees, though with somewhat greater flexion on both dressing and undressing. Extension was to 15 degrees, with right and left lateral bending to 35 degrees, and right and left rotation to 40 degrees. Deep tendon reflexes were 2+/4+ bilaterally. Muscle strength in the lower extremities was 5/5 bilaterally, with straight leg raising producing mild to moderate pain at 50 degrees bilaterally. On VA neurologic examination in July 1999, it was once again noted that the Veteran's medical records were available, and had been reviewed. He complained of problems with prolonged sitting and/or standing, though he was currently taking no prescribed pain medication. On physical examination, the Veteran exhibited a normal range of motion of his lower extremities bilaterally. Deep tendon reflexes were described as equal bilaterally. On VA orthopedic examination in April 2000, the Veteran complained of a constant, mostly dull pain in his lower back radiating to his left hip and down his left leg. He was unemployed, and had been on total disability through Social Security since 1997. Previously, he had been employed as a truckdriver and mechanic. He was able to shower, shave, eat, and toilet independently, though on some days, he needed assistance with dressing, in particular, with putting on his shoes and socks. On physical examination, the Veteran was observed to shift his weight frequently in his chair. He needed assistance in order to remove his left shoe and sock, and found it necessary to twist his body in a certain way in order to put on his shoes and socks, and to tie his shoes. The Veteran's gait at the time of examination was within normal limits. Musculature of the Veteran's back was likewise within normal limits, though with some reported tenderness on palpation of the lumbosacral spine. Range of motion measurements showed flexion forward to 50 degrees, with pain at 45 degrees. Extension backward was to 0 degrees, with right lateroflexion to 15 degrees, and left lateroflexion to 20 degrees. Right rotation was to 20 degrees, with left rotation to 25 degrees. In December 2000, a VA neurologic examination was accomplished. At the time of examination, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. The Veteran complained of a constant, dull-type pain starting in his lower back, and radiating to his left hip and down the back of his left leg, along the sides of his knees to his ankles. He noted periods of flare-ups, during which he experienced increased pain, stiffness, and weakness. He had been on total disability through Social Security since 1997. Prior to that time, he had been employed as a truckdriver and mechanic. He could no longer perform these jobs due to an inability to bend over cars or sit for long periods of time while driving. He was able to shower, shave, eat, and toilet independently, though he needed help on occasion with dressing, in particular, with putting on his shoes and socks. He was unable to do yard work, but could do some light housework. On physical examination, the Veteran's gait was within normal limits. There was decreased lordosis of the lumbar spine. The musculature of the back was similarly normal, though with some reported tenderness on palpation of the lumbosacral spine. Muscle strength in the lower extremities was 5/5. Deep tendon reflexes showed an ankle jerk of 2+ on the left, and 1+ on the right, with no clonus. Range of motion measurements of the lumbosacral spine showed forward flexion to 45 degrees, with pain at 40 degrees. Extension backward was to 0 degrees, with right lateroflexion to 15 degrees, and left lateroflexion to 20 degrees. Right rotation was to 15 degrees, and left rotation was to 25 degrees. Previous electromyographic testing was described as showing no clear evidence of left or right lumbosacral radiculopathy. On VA orthopedic examination in August 2001, the Veteran complained of constant backaches. Physical examination showed normal strength of the proximal and distal musculature of the Veteran's lower extremities. Reflexes were symmetrical in the lower extremities, with knee jerks and ankle jerks of 2+. Tests of straight leg raising were positive at approximately 40 degrees bilaterally, and the Veteran was able to tandem-walk with only slight difficulty, though with some limping. September 2001 VA MRI results showed left sided disc herniation at L1-L2 causing significant left lateral stenosis and compression of the left L2 nerve root; right paracentral disc herniation at L2-L3 causing central and right lateral stenosis with compress of the right L3 nerve root (and significant facet hypertrophy at the L2-L3 level, left greater than right); marked central and lateral stenosis at L3-L4 due to shortened pedicles, central disc herniation and marked hypertrophic changes involving the facet joints (and significant foraminal stenosis at L3-L4, right greater than left, with impingement on the existing L3 nerve roots; significant central stenosis at L4-L5 due to central disc herniation with marked lateral recess and foraminal stenosis at the L4-L5, bilaterally; and, moderate facet arthropathy at L5-S1. In a February 2004 private treatment record, doctor C.N.B. indicated that the Veteran's claim file had been reviewed. Doctor C.N.B. opined that the Veteran's in-service spinal injury resulted in severe musculoskeletal problems with sciatica since 1993 and that the Veteran had been unemployable due to his lumbar spine disability since 1997. Doctor C.N.B. extensively documented the records in the claims file used in rendering this opinion. In a September 2004 VA Peripheral Nerves examination report, the examiner recorded the history of the Veteran's disability. The Veteran reported that he underwent surgery in July 1997 for his lumbar spine disability with initial positive results. However, gradually the symptoms worsened. On average, he rated the pain a 5 out of 10 with intermittent flare-ups of pain of 6-7 out of 10. He complained of difficulty sleeping and driving long distances. Walking, prolonged standing and prolonged sitting increased the pain. He reported intermittent symptoms of pain extending into the left leg. He had a patchy area of numbness in the lower legs and feet, bilaterally. He also complained of bladder urgency since the lumbar spine surgery in 1997 (he denied bowel symptoms or sexual dysfunction). Overall, he felt weak but had no specific complaints of weakness in the legs. He had not worked since 1997. He had been employed as a truck driver and mechanic but had been unable to resume those activities. He was prescribed Salsalate, Robaxin and Tylenol for pain relief of his back symptoms. Objectively, there was no muscle wasting in the arms or legs; tone was normal. There were no fasciculations. He had good strength in all the muscle groups in the arms and in the legs. He had minimal give-way weakness in hip flexion associated with the lower back pain. He had decreased sensation distal to the knees, bilaterally and decreased sensation over the lateral aspect of the right foot compared to the medial aspect and lateral aspect of the left lower leg. Reflexes in the legs were 1+ to 2 and knee and ankle jerks were easier to elicit in the left leg. He tended to externally rotate the left leg compared to the right and was able to do heel and toe walking fairly well. Straight leg raising test was positive to about 45 degrees on the right and about 30 degrees on the left. Movement of the lumbar spine, especially extension, increased the pain and the Veteran complained of symptoms into the left leg with extension. The Veteran had difficulty getting onto and off the examination table and difficulty putting/taking his shoes and socks on/off. X-rays of the lumbar spine showed multiple disc space narrowing and vertebral marginal spurring was reported. EMG performed in December 1997 did not show any radiculopathy. The diagnosis was chronic low back pain with a history of surgery in July 1997 with right L3-4 hemilaminectomy and foraminotomies at the L3-4-5 levels with residual bilateral symptoms in the legs. There were decreased knee and ankle jerks on the right compared to the left. There was no motor deficit noted. There was patch sensory impairment which was difficult to localize to peripheral nerve or root distribution. The pain interfered with his day-to-day activities and limited his chances of reemployment. In an October 2004 VA fee basis orthopedic examination report, the physician indicated that the claims file had been reviewed. The Veteran filled out a pain drawing indicating pain in his low back and numbness in the left leg with pain in the left thigh and leg. The Veteran reported that he took Robaxin (muscle relaxer), approximately 12-15 days per month; Salsalate, intermittently; Tylenol, 2 times per day; and, Vicodin, 1 time per day for management of his low back pain symptoms. The Veteran underwent surgery on his lumbar spine in July 1997. Subsequently, the low back pain has improved to a duller type of pain. Movements, twists/leans in the wrong direction, aggravated his pain. The pain was localized mainly in the low lumbar, midline area. He had radicular pain down the left leg to ankle level approximately 2-3 times per month. Additionally, he complained of numb spots throughout both legs. Bladder and bowel functions were good. Sneezing increased the pain as did increased levels of activity. Comfortably, he could walk about a block before pain onset. Prolonged periods of sitting and driving increased his low back symptoms. Additionally, the examiner questioned the validity of the February 2004 private doctor opinion report given that the private doctor based his opinion on review of the medical records of evidence and not an actual examination of the Veteran, and that the private doctor was a radiologist and nuclear medicine specialist without experience in treating patients with low back problems. Objectively, the Veteran was observed to walk in and out of the office normally. he walked on his heels and toes easily. With palpation of the lower lumbar midline, he complained of tenderness and soreness over surgical scar; otherwise, paravertebral muscles on either side were not tender; there was no muscle spasm, no scoliosis, and no gluteal area tenderness on either side. On flexion, the Veteran stopped 8 inches from reaching the floor with complaints of low back pain. Extension was to 15 degrees and right and left lateral tilt to 15 and 10 degrees, respectively. The Veteran complained of tightness and low back pain at extremes of all motions. He traced the pain from the low back down through the left gluteal area, down the posterolateral left leg. Calf muscles, bilaterally, have no tenderness to squeezing. Against resistance, both toes had strong dorsiflexion and ankles had strong dorsiflexion and plantar flexion. Knees had strong extension and flexion power, bilaterally. Straight leg raising on the right caused complaint of tightness and discomfort in the hamstring area. Left straight leg raising at 45-50 degrees caused some discomfort in the low back. Pin sensation was thought to be within normal limits bilateral in the thighs, legs and feet. The examiner concluded that the Veteran continued to have low back pain manifested by multiple levels of degenerative discs with narrowing and osteophytes and intermittent symptoms into his left leg consistent with some degree of radiculopathy. He opined that the Veteran would be able to undertake light work activities which did not require frequent or heavy lifting or pushing, pulling, bending, twisting or climbing. In a June 2005 examination report, doctor C.N.B. reiterated that the Veteran's claim file had been reviewed. Doctor C.N.B. also indicated that he examined the Veteran prior to providing testimony in the June 2005 Board hearing. Doctor C.N.B. took issue with the findings of the October 2004 VA fee basis examination report, specifically as it pertained to the examiner questioning the validity of doctor C.N.B.'s previous February 2004 opinion. Doctor C.N.B. chronicled his expertise and qualifications; documented his extensive review of the records of file; discounted the findings of the October 2004 fee basis examination report; and, repeated his opinion offered in February 2004, namely that the Veteran was unemployable due to his lumbar spine disability and had been so since 1997. In a June 2006 VA Fee basis examination report, the same examiner who evaluated the Veteran in October 2004, documented his extensive review of the claims file. The history of the Veteran's lumbar spine disability has been well documented and remained wholly unchanged in the examination report. The Veteran complained of continued, chronic low back pain which he rated as 3-4 out of 10, with increases in severity during periods of increased activity level. The majority of the pain was localized in the center of the low back and extending out to the left side with radiation down the left leg into the foot. He described the radiating pain as acute in nature, occurring 2-3 times per week and lasting approximately 20 minutes at a time. He was unable to quantify particular activity which aggravated his back pain. He had minimal radicular symptoms into the right lower extremity. He also had long-standing complaints of patchy numbness throughout the left leg. Bowel and bladder functions were satisfactory. Sneezing and prolonged walking increased his low back pain. He avoided any strenuous activity and any heavy lifting. Objectively, he had 30 degrees of flexion (approximately 3 inches below the knee); 15 degrees of extension; and, 10 and 15 degrees of right and left lateral bend, respectively. He was able to walk on heels and toes fairly easily. Knee and ankle reflexes were all active and good. He did complain of mild to moderate discomfort over the lower lumbar midline and left gluteal area. Against resistance, he had good strength in the knees, ankles and toes. Straight leg raising on the right caused complaints of tightness in the hamstrings at 70 degrees but no particular back pain. Straight leg raising on the left caused complaints of low back pain at 65 degrees. Pin prick sensation seemed variable at different areas throughout either leg; no consistent pattern of sensory deficit was identified. The examiner concluded that the Veteran has chronic low back pain manifested by multiple levels of degenerative disc disease throughout the lumbar spine and had not had full recovery or resolution of the symptoms following the July 1997 surgical procedure. His current symptomatology was also suggestive of some nerve root involvement. Additionally, the Veteran's physical and occupational activities were significantly limited due to the back disability. The examiner again restated his opinion that Veteran would be able to undertake light work activities which did not require frequent or heavy lifting or pushing, pulling, bending, twisting or climbing. He opined that the Veteran was not entirely disabled or unemployable. Objective examination findings of a December 2006 VA examination included exaggerated lordotic curvature, nontender musculature on the lumbar and paralumbar region, no direct spinal tenderness to palpation and on palpation, minimally tender sacroiliac joints. He had forward flexion from 0-45 degrees (with pain from 20-45 degrees); extension 0-20 degrees (with pain from 10-20 degrees); rotation 0-25 degrees, bilaterally (with pain throughout). There were no positive Waddell distraction signs present. In an April 2009 VA medical examination report, the Veteran rated his daily pain level as 4-5 out of 10 and described the pain as a dull pain with occasional sharpness radiating down into the right leg. Flare-ups of pain occurred with certain simple movements and were not necessarily related to more stressful activities. Additionally, the flare-ups of pain radiated down the right leg and lasted anywhere from 2 hours to a day. The flare-ups were unpredictable and the Veteran could not quantify the frequency of flare-ups of pain in a certain time span. With flare-ups of pain, the Veteran experienced additional limitation of motion and functional impairment. The Veteran used Tramadol, Salicylate and Tylenol to treat his back pain symptoms. He also complained of associated numbness of the lower extremities. Following his spinal surgery in 1997, he also experienced profound urinary urgency, intermittently to the point of incontinence. There were no complaints of bowel problems or erectile dysfunction. He was able to walk unaided but occasionally had to use a cane. He wore a VA prescribed back brace. Prolonged walking aggravated his back pain. Objectively, there was slight decrease in the normal lumbar lordosis. There was tenderness over all of the lumbar spinous processes, and to a lesser degree, the paravertebral muscles adjacent. However, there was no palpable muscle spasm. He had flexion to 48 degrees; extension to 40 degrees; left and right lateral bending to 20 and 21 degrees, respectively; and left and right rotation to 43 degrees and 52 degrees, respectively, all with severe pain at the extremes but not throughout the ranges of motion. Straight leg raising on the right was 32 degrees and on the left 34 degrees with pain throughout the range of motion. The pain was localized in the low back. Strength of the thoracolumbar spine was reduced by 20 percent or more on repetitive motion, manifested by an additional loss of 5-10 degrees in all ranges of motion. The peripheral pulses were easily palpable and normal. Neurologic examination revealed absent right knee jerk and decreased right ankle jerk. Sensation was decreased in both medial feet and both anterolateral thighs, corresponding to the enervation area of the lateral femoral cutaneous nerve in the thigh. Diagnoses included degenerative disc disease and degenerative arthritis of the lumbar spine and status post lumbar back surgery for relieving of radicular nerve pressure. Analysis The Board has reviewed the evidence of record. For the entire period of appeal (exclusive of the period from July 29, 1997 to November 30, 1997), assignment of a 60 percent rating is in order. In this regard, in the December 1995 VA treatment record, the Veteran complained of a 4 day history of increased pain with right leg radicular pain. On objective examination, the diagnosis was degenerative joint disease of the lumbar spine with radicular right leg pain. In an April 1996 VA examination report, examination of his back showed evidence of mild paraspinous muscle spasm, with a markedly decreased range of motion. In a February 1997 private treatment report, the diagnosis was multiple levels of lumbar spinal stenosis, status post L3-L4 right hemi-laminectomy and foraminotomies at L3, L4, and L5 levels with signs of symptoms compatible with right L5-S1 radiculopathy. In an April 1997 VA treatment record, objective examination showed evidence of spasms in the low back muscles. In July 1997, the Veteran underwent lumbar spine surgery to relieve his low back symptoms, including radicular nerve pressure. Subsequently, the Veteran's complaints have remained constant, lumbar spine disability with pain, muscle spasms and signs and symptoms of lower extremity radiculopathy. Thus, assignment of a 60 percent evaluation, but no higher, for the entire time period of the appeal is warranted (exclusive of the period from July 29, 1997 to November 30, 1997). In this regard, the Veteran's current claim for increased rating for his lumbar spine disability was received by the RO on February 10, 1995; accordingly, the 60 percent rating is assigned as of February 10, 1995. See 38 C.F.R. § 3.400(o). Prior to September 26, 2003, to warrant a rating in excess of 60 percent, residuals of fracture of the vertebra with cord involvement, bedridden or requiring long leg braces (diagnostic code 5285) or unfavorable ankylosis of the entire spine (diagnostic code 5286) must have been demonstrated. Beginning September 26, 2003, to warrant a rating in excess of 60 percent, unfavorable ankylosis of the entire spine must have been demonstrated. During this period in question, such impairment was not documented. As such, the Board finds that the Veteran is not entitled to a rating in excess of 60 percent at any time during the period of the appeal. The facts of this case do not present such an extraordinary disability picture such that the Board is required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008). In any event, the Veteran in this case has been assigned a total rating based on individual unemployability due to his service-connected disabilities as of December 1, 1997 (see discussion hereinbelow). TDIU Laws and Regulations- Effective Dates The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010) and 38 C.F.R. § 3.400 (2010). In cases involving increases (which includes a claim for individual unemployability), the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Factual Background and Analysis The Veteran's claim for a total disability rating based upon individual unemployability was received in February 2000. At the time of that claim, the Veteran indicated that he had last worked in July 1997. He had completed high school, and had occupational experience as a professional (truck) driver. In a May 2000 rating decision, the RO denied the Veteran's claim for a TDIU rating. The Veteran did appeal this decision. Subsequently, in an April 2009 rating decision, the RO awarded the Veteran a TDIU rating as of August 30, 2001, the date he (previously) met the schedular requirements. Again, the Veteran did appeal this decision with regard to the assigned effective date. In the present case, the Board finds that an effective date of December 1, 1997, for the award of the TDIU rating is warranted. To that end, as noted, above the Veteran underwent an L3-4 right hemilaminectomy, with foraminotomies at L3, L4 and L5 in July 1997. Subsequently, the RO assigned a temporary total evaluation for the lumbar spine disability, effective from July 29, 1997 to November 30, 1997, for a period of convalescence following a surgical procedure. The record indicates that the Veteran has not been employed since that time. The Board is aware that in the April 2009 rating decision, the Veteran was first shown to meet the schedular requirements for a TDIU rating as of August 30, 2001 (i.e., a 60 percent rating was assigned for his lumbar spine disability). However, given the action taken hereinabove, the Veteran actually met the schedular requirements for a TDIU rating in February1995 (i.e., per the Board action above, a 60 percent rating is assigned for the lumbar spine disability as of February 10, 1995). However, at that time the Veteran was employable and in fact was employed as a truck driver. The Veteran was not shown to be unemployable until the period following his July 1997 surgical procedure. In this regard, the Board does not wish to disturb the period from July 29, 1997 to November 30, 1997, when the Veteran was assigned a temporary total evaluation for a period of convalescence following his surgical procedure. Accordingly December 1, 1997 is the first day the Veteran was shown to meet the schedular requirements and shown to be unemployable due to his service-connected lumbar spine disability. ORDER An increased evaluation of 60 percent, but not higher, for the service-connected degenerative disc disease of the lumbar spine, status post L3-4 hemilaminectomy and L3-4-5 foraminotomies is granted for the period beginning February 10, 1995, subject to the regulations controlling the disbursement of VA monetary benefits. An evaluation in excess of 60 percent for the service-connected degenerative disc disease of the lumbar spine, status post L3-4 hemilaminectomy and L3-4-5 foraminotomies is denied. An effective date of December 1, 1997, but no earlier, for the assignment of a TDIU rating is granted. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs