Citation Nr: 1129727 Decision Date: 08/11/11 Archive Date: 08/23/11 DOCKET NO. 09-33 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher disability rating for lumbar degenerative disc disease with mild right lower extremity S1 radiculopathy, to include restoration of a 20 percent rating from June 11, 2008. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which reduced the evaluation of the Veteran's service-connected disability of lumbar degenerative disc disease with mild right lower extremity S1 radiculopathy from 20 percent to 10 percent, effective June 11, 2008. The Veteran has perfected an appeal from this decision. In an August 2011 rating decision, the RO increased the disability rating to 40 percent, but only effective as of January 28, 2010. The issue of entitlement to a higher rating for the back disability prior to and after January 28, 2010 remains on appeal because that rating did not constitute a full grant of the full benefits sought and he has not expressed satisfaction with that determination. See AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDINGS OF FACT 1. The reduction to a 10 percent rating for the service-connected lumbar degenerative disc disease with mild radiculopathy effective June 11, 2008, was improper. 2. Prior to January 28, 2010, the Veteran's lumbar spine disability manifested with forward flexion to 80 degrees, with pain beginning at 40 degrees; and no more than mild neurological involvement of the right lower extremity; without ankylosis or incapacitating episodes due to intervertebral disc syndrome (IVDS). 3. From January 28, 2010, the Veteran's lumbar spine disability manifested with flexion limited to 30 degrees, including upon repetitive motion; moderate neurological involvement of the right lower extremity; without ankylosis or incapacitating episodes due to IVDS. CONCLUSIONS OF LAW 1. A 20 percent disability rating for lumbar degenerative disc disease with mild radiculopathy from June 11, 2008 is restored. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.105, 3.344, 4.71a, 4.71a, Diagnostic Code (DC) 5243 (2010). 2. The criteria for a higher rating for lumbar degenerative disc disease rated at 20 percent prior to January 28, 2010, and rated at 40 percent thereafter are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, DC 5243 (2010). 3. The criteria for a separate 10 percent rating for right lower extremity radiculopathy prior to January 28, 2010, and a higher rating of 20 percent thereafter, are met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §38 C.F.R. § 4.71a, 4.124a, DC 8520 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent to the Veteran in February 2008 prior to the initial adjudication of his claim. He was notified of what was necessary to establish an increased rating, what evidence he was expected to provide, and what VA would obtain on his behalf. He was also informed as to the type of evidence necessary to establish an effective date and a disability rating. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Also at issue here, is the propriety of a rating reduction. The Board notes that when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). The Court of Appeals for Veterans Claims (Court) has held that when VA reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio, and will be set aside. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In this case, the Veteran was not notified of the proposed reduction of his disability rating in accordance with 38 C.F.R. § 3.105(e). However, as the rating action that implemented the rating reduction did not change the Veteran's overall disability rating, which remained at 20 percent, the reduction in the rating for the Veteran's low back disability did not result in a reduction of compensation payments, and the procedural safeguards of 38 C.F.R. § 3.105(e) do not apply. See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347- 49 (Fed.Cir.2007) (holding that provisions of § 3.105(e) did not apply where there was no change in overall disability rating). VA also has a duty to assist the Veteran in substantiating his claims under 38 C.F.R. § 3.159(c), (d) (2010). Here, the Veteran's statements, his service treatment records, and post-service VA and private treatment records have been associated with the claims folder. The Veteran was also afforded VA examinations in 2008 and 2010, and the examination reports are of record and were reviewed by the Board. In the Veteran's Substantive Appeal (VA Form 9), he averred that the June 2008 examination was inadequate because the examiner did not note his use of a cane and history of a fall, and did not use a goniometer for measurement of range of motion. He also avers that the examination room was too small for the examiner to accurately inspect his gait. The Board notes that the examiner's report does note the Veteran's use of a cane, though not his report of a fall. Moreover, although the examiner did not explicitly state that a goniometer was used, the measurements provided were consistent with the use of a goniometer. The examiner also specifically stated that the Veteran's gait was normal. The Board notes that there is a presumption of regularity under which it is assumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Here, the Veteran has not submitted clear evidence showing that a goniometer was not used or that the examiner was unable to accurately view his gait in the space provided. Thus, the examination report is found to be adequate for rating purposes. The Veteran has not notified VA of any additional available relevant records with regard to his claim. The Board finds that VA fulfilled its duties to notify and assist the Veteran. Sufficient evidence is available to reach a decision and the Veteran is not prejudiced by appellate review at this time. Analysis Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service- connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, 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 Veteran is presumed to be seeking the maximum benefit allowed by law and regulation. AB v. Brown, 6 Vet. App. 35, (1993). Under the general formula for rating diseases and injuries of the spine, DC 5235 (vertebral fracture or dislocation), DC 5236 (sacroiliac injury and weakness), DC 5237 (lumbosacral or cervical strain), DC 5238 (spinal stenosis), DC 5239 (spondylolisthesis or segmental instability), DC 5240 (ankylosing spondylitis), DC 5241 (spinal fusion), DC 5242 (degenerative arthritis of the spine) (see also, DC 5003), DC 5243 (IVDS) are evaluated under the following general rating formula for diseases and injuries of the spine (unless intervertebral disc syndrome is rated under the Formula for Rating IVDS Based on Incapacitating Episodes):with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See Id. Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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 thoracolumbar spine is 240 degrees. See Id. 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. See Id. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note 1: For purposes of evaluations under DC 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, each segment will be evaluated 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. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Also, the United States Court of Appeals for Veterans Claims (Court) recently noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010). The rating schedule also provides guidance for separately rating neurologic impairment. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Ratings for paralysis of the sciatic nerve are set forth at 38 C.F.R. § 4.124A, DC 8520. A 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. Diagnostic Code 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. In January 2008, the Veteran applied for an increased evaluation for his service-connected disability of lumbosacral degenerative disc disease with mild right lower extremity S1 radiculopathy. In an August 2008 rating decision, the RO reduced the disability evaluation for the low back disability to 10 percent, effective June 11, 2008, based on findings from a June 2008 VA examination. The Veteran seeks restoration of the 20 percent disability evaluation, in addition to a higher rating. The evidence pertinent to this appeal includes VA treatment records from 2007 to 2008 that reflect complaints of back pain and right leg pain. A private MRI report dated in May 2008 shows the Veteran was evaluated for complaints of burning at the top of his right upper leg and back pain. The clinical impression was degenerative disc at L5-S1 with disc space narrowing and diminished signal intensity in paracentral bulging, somewhat asymmetrical with possible herniation and encroaching on the right neural foramen and nerve root at this level. A June 2008 VA examination report shows the Veteran indicated he had a progressive worsening of his back pain with radiation to the right leg associated with a burning sensation and numbness of the toes. He denied a history of urinary and bowel dysfunction. He also denied any incapacitating episodes over the last 12 month period. The Veteran reported use of corrective shoes, orthotic inserts, and a cane for ambulation assistance, but had no limitations to walking. On physical examination, there was guarding and pain with motion. There was no spasm, guarding, weakness, abnormal gait, or abnormal spinal contour such as scoliosis, kyphosis, or reversed lordosis. Lumbar flattening was noted. Range of motion of the thoracolumbar spine included 0 to 80 degrees of flexion, with pain beginning at 40 degrees and ending at 80 degrees; 0 to 20 degrees of extension with pain beginning at 0 degrees and ending at 20 degrees; 0 to 30 degrees of lateral bending to the left and right; and 0 to 30 degrees of lateral rotation to the left and right. Pain was present after repetitive movement, but there was no additional limitation of motion. In addition, muscle strength was 5/5 in the bilateral lower extremities. Muscle tone was normal and there was no atrophy. Sensation was intact to vibration, pain with pin-prick, light touch, and position in both lower extremities. There was no abnormal sensation noted. Reflexes were normal at 2+ for knee and ankle jerk and plantar flexion. The diagnosis was IVDS. The examiner noted that the Veteran was currently employed on a full time basis and had lost less than 1 week from work in the past 12-month period. An August 2008 private medical record shows the Veteran complained of low back pain with right lower extremity radicular pain down his posterior thigh and calf. He denied weakness or leg pain on the right. He reported some weakness in his left knee associated with a prior (non service-connected) knee injury. His symptoms included numbness and tingling down the back of his right leg and numbness in his toes. He stated that it was difficult to stand or walk for extended periods. He denied bowel and bladder dysfunction. Objective neurological examination revealed that he ambulated without use of assistive devices using a normal gait. Motor strength was 5/5 throughout the lower extremities bilaterally. Sensory was intact to light touch and pinprick, with increased sensitivity to pinprick in the right dorsal aspect of the foot. Deep tendon reflexes were 2+ in the patella, 1+ in the Achilles on the right and 2+ on the left. The clinician noted that range of motion in the lumbar spine was decreased; however, specific ranges were not provided. Pain on palpation of the spine and spasms were not present. Straight leg raise was positive at 50 degrees bilaterally. The Veteran was able to stand on heel and toe, and tandem walk without difficulty. In a February 2009 statement, the Veteran reported that he has numbness in his right leg that radiates to his toes with "pins and needles" and a burning sensation in his right thigh. He reported that this causes an abnormal gait when walking and causes him to need a cane for stability. In an April 2009 statement, the Veteran's wife reported that the Veteran has daily pain due to his back disability and that his physician has recommended surgery. She also described the difficulty the Veteran has with activities of daily living such as washing his vehicle and other chores. The Veteran's neighbor also submitted a statement describing the Veteran's limitations on standing for prolonged periods, bending, and enjoying social activities due to his back pain. Based on the evidence above, the Board finds that the RO's reduction in the service-connected lumbar degenerative disc disease, from 20 to 10 percent and effective as of June 11, 2008, was improper. The evidence at the time of the June 2008 rating decision showed the Veteran's service-connected lumbosacral disability met the criteria for a 20 percent evaluation. Specifically, the June 2008 VA examination report shows that the Veteran had forward flexion to 80 degrees, but that his motion was limited to 40 degrees when pain was considered. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but less than 60 degrees. See 38 C.F.R. § 4.71, DC 5243. Thus, in light of DeLuca and Cullen, and resolving all reasonable doubt in the Veteran's favor, the criteria for a 20 percent rating was met under the general schedule for evaluating spine disorders. Therefore, the 20 percent evaluation for lumbar degenerative disc disease is restored as of June 11, 2008. The Board has next considered whether the Veteran was entitled to a disability rating higher than 20 percent, for any time during this appeal prior to January 28, 2010 - the effective date the RO assigned to the 40 percent disability rating. The next highest rating under DC 5243 is 40 percent and requires either evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, DC 5243 (2010). The only measurements for the lumbar spine range of motion, for the period prior to January 28, 2010, are noted in the June 2008 VA examination report. That report showed forward flexion was possible to 80 degrees, although pain began at 40 degrees. There was no additional limitation of motion due to pain on repetition. Thus, even with consideration of the DeLuca principles, flexion did not more closely approximate 30 degrees or less. The evidence also fails to show any ankylosis. Accordingly, the criteria for a higher rating of 40 percent are not met under the general formula. Alternately, a showing of IVDS with incapacitating episodes having a total duration of at least four weeks during the past 12 months would warrant a 40 percent rating under DC 5243. See 38 C.F.R. § 4.71a, DC 5243 (2010). Here, there is no evidence that a physician prescribed bed rest for a period of at least 4 weeks at any time during the appeal period in question; thus, a rating higher may not be assigned under DC 5243 on the basis of incapacitating episodes. The Board notes, however, that the rating schedule allows for separate ratings for chronic orthopedic and neurologic manifestations. See Note (1) of the General Rating Formula of Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Here, the June 2008 VA examination was negative for objective clinical evidence of sciatic involvement in the right lower extremity. On private evaluation in August 2008, however, there was increased sensitivity to pinprick in the right dorsal aspect of the foot and deep tendon reflexes were only 1+ in the Achilles on the right, as opposed to 2+ on the left. Moreover, the Veteran has credibly reported symptoms of burning and tingling in his right leg and numbness in the toes. Therefore, the Board will resolve doubt in the Veteran's favor and allow a separate rating 10 percent rating, and no higher, for mild right leg radiculopathy under DC 8520 for the entire appeal period prior to January 28, 2010. No other neurological abnormalities associated with the service-connected lumbar spine condition have been shown by the evidence, such as left lower extremity radiculopathy, and any bowel or bladder dysfunction. A higher rating is not warranted as more severe neurologic impairment has not been shown. In a March 2010 rating decision, the RO increased the disability evaluation for the service-connected lumbar degenerative disc disease disability to 40 percent, effective January 28, 2010. Accordingly, the Board has considered whether the Veteran is entitled to a disability rating higher than 40 percent for the appeal period beginning January 28, 2010. The evidence pertinent to this period includes a January 2010 VA examination report. This report shows that the Veteran stated that his private physicians deemed his back disability to be of such severity that surgery was required. He indicated that he had been scheduled for a laminectomy posterior spinal fusion L4 to sacrum, but due to a left shoulder injury the back surgery had to be postponed. He further reported that he treated his low back pain with nonsteroidal analgesics and muscle relaxants without relief. He denied any history of bowel and bladder dysfunction. He reported symptoms of stiffness, weakness, spasms and pain in the low back area that was severe and constant. He reported that pain radiated into his right lower extremity to the lateral aspect of his toes and was sharp and intermittent in nature. He denied any incapacitating episodes due to IVDS. On physical examination, the Veteran demonstrated an antalgic gait in the right lower extremity secondary to radiculopathy. He reported that he was unable to walk more than a few yards. Range of motion of the thoracolumbar spine included 0 to 30 degrees of flexion, 0 to 10 degrees of extension, 0 to 10 degrees of lateral bending to the left and right, and 0 to 10 degrees of lateral rotation to the left and right. Pain was present on all active ranges of motion and after repetitive movement, but there was no additional limitation of motion following repetitive movement. Objective neurological examination revealed motor strength was 5/5 throughout the lower extremities bilaterally, except in the right ankle plantar flexion where it was 4/5. Muscle tone was normal and there was no atrophy. Sensation was intact to position in both lower extremities. Vibration was absent on the right. Pain with pin-prick and light touch was diminished on the right. The examiner noted that there was decreased sensation along the S1 distribution. Reflexes were normal at 2+ for knee jerk. However, ankle jerk was 1+ (hypoactive) and there was clonus with bilateral plantar flexion. Straight leg raising was positive at 60 degrees on the right and there was positive sciatic notch tenderness on the right. The Veteran reported that he was employed full time but had lost 6 weeks from work in the past 12 months. The examiner's diagnosis was lumbar degenerative disc disease with severe mechanical low back pain and loss of range of motion; and moderate right lower extremities S-1 radiculopathy secondary to lumbar degenerative disc disease. To warrant a higher disability rating under the revised criteria, the evidence must show either unfavorable ankylosis of the entire thoracolumbar spine (for a 50 percent rating); or IVDS, with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (for a 60 percent rating). See 38 C.F.R. § 4.71a, DCs 5237, 5243 (2010). Here, the evidence shows the Veteran's spine is not ankylosed. The January 2010 VA examination reports reflect the Veteran was able to achieve forward flexion, extension, and both lateral bending and side rotation-although it was significantly limited. Furthermore, because the 40 percent evaluation is the maximum for limitation of motion without ankylosis, further DeLuca consideration is not warranted. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, a higher rating under the general rating formula is not available. In addition, incapacitating episodes due to IVDS have not been shown. The Board has considered the Veteran's statements regarding the difficulty caused by his back pain; however, it has not been shown that he was incapacitated from IVDS or that a physician-prescribed bed rest for a period of at least 6 weeks at any point during this appeal period. In the April 2009 statement from the Veteran's wife, she reported that the Veteran lost 6 weeks from work between March and April 1998- a period of time not covered in this appeal. Neither she nor the Veteran reported a recent period of physician-prescribed bed rest for the appeal period in question. As such, a higher rating for IVDS under DC 5243 is not available. Based on the clinical evidence for the appeal period beginning January 28, 2010, the Board finds that a 20 percent rating for moderate sciatic nerve involvement of the right lower extremity is warranted. The January 2010 VA examination shows an increase in the impairment of the right lower extremity caused by sciatic nerve involvement. Significantly, the examiner described the level of impairment as 'moderate' in severity. Based on the objective findings, the examiner's opinion, and the Veteran's credible report of his symptoms, the Board resolves doubt in his favor and finds that for the appeal period beginning January 28, 2010, a 20 rating is warranted for moderate right lower extremity radiculopathy under DC 8520. Again, no other neurological abnormalities associated with the service-connected lumbar spine condition have been shown by the evidence, such as left lower extremity radiculopathy, and any bowel or bladder dysfunction. A higher rating is not warranted as more severe neurologic impairment has not been shown. The Veteran's testimony regarding his back and radicular symptoms is considered credible, competent and probative. The Board does not doubt that the Veteran experiences discomfort and difficulty with respect to his service-connected back disability. However, as discussed in detail above, the medical evidence shows that his condition does not meet the criteria for a lumbar spine rating higher than 20 percent for the entire period of time covered by this claim that is prior to January 28, 2010; or for a rating higher than 40 percent for the entire period of time covered by this claim that is after January 28, 2010. The medical evidence shows that his right lower extremity radiculopathy does not meet the criteria for a rating higher than 10 percent for the entire period of time covered by this claim that is prior to January 28, 2010; or for a rating higher than 20 percent for the entire period of time covered by this claim that is after January 28, 2010. The Board finds the VA medical examination reports highly probative as to the ranges of motion that can be achieved, as well as the effect of pain, sciatic nerve involvement, and other factors on his lumbar spine range of motion and right lower extremity function. The reports were based on physical examinations and provided sufficient information to allow the Board to apply the schedular criteria. As such, higher evaluations are not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether the appellant is entitled to an extraschedular evaluation. 38 C.F.R. § 3.321. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating. First, there must be a comparison between the level of severity and symptomatology of the service-connected disability and the criteria found in the rating schedule to determine whether the disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Here, the Board finds that the rating criteria adequately contemplate the manifestations of the Veteran's lumbar degenerative disc disease and right lower extremity radiculopathy. The disabilities are productive of pain, limited motion, and mild to moderate neurologic involvement of the right lower extremity only. These manifestations are contemplated in the pertinent rating criteria and are therefore adequate to evaluate the Veteran's disabilities. Accordingly, referral for consideration of extraschedular rating is not warranted. Finally, the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) held that every claim for a higher rating includes a claim for a total disability based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevents him from working. In this case, the Veteran has not claimed that his service-connected lumbar spine disability prevents him from working, and he has been employed on a full-time basis for the past 20 years. Thus, a claim for TDIU has not been raised in this decision. ORDER The 20 percent rating for lumbosacral degenerative disc disease from June 11, 2008, is restored. A higher disability rating for lumbar degenerative disc disease rated 20 percent disabling prior to January 28, 2010, and rated 40 percent disabling thereafter, is denied. A separate 10 percent rating for mild right lower extremity radiculopathy prior to January 28, 2010, and a separate rating of 20 percent for moderate right lower extremity radiculopathy thereafter, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs