Citation Nr: 1112208 Decision Date: 03/28/11 Archive Date: 04/06/11 DOCKET NO. 09-32 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD) prior to January 14, 2009. 2. Entitlement to an evaluation in excess of 50 percent for PTSD from January 14, 2009. 3. Entitlement to an evaluation in excess of 20 percent for status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 prior to December 4, 2008, to include a separate compensable rating for radiculopathy into the left lower extremity. 4. Entitlement to an evaluation in excess of 40 percent for status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 from December 4, 2008. REPRESENTATION Veteran represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from February 2000 to February 2004. His awards and decorations include the Navy and Marine Corps Achievement Medal with 'V" device. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to a temporary total rating for PTSD has been raised by the record in a February 2009 VA Form 21-4138, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. At this juncture, the Board notes that the Veteran has contended that he is unable to work as a result of his back disability. However, a claim for a total rating based on individual unemployability (TDIU) due to service connected disabilities was considered and denied in the June 2008 rating decision on appeal, and the Veteran did not submit a notice of disagreement with this issue. Therefore, as the Veteran has chosen not to pursue this matter, there is no basis for further consideration of a TDIU under the provisions of Rice v. Shinseki, 22 Vet. App. 447 (2009). A new claim can be filed at the RO if desired. The issues of entitlement to an evaluation in excess of 50 percent for PTSD from January 14, 2009, and entitlement to an evaluation in excess of 40 percent for status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 from December 4, 2008 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's service connected PTSD was productive of symptomatology such as anxiety around people, a depressed mood, chronic sleep impairment, and mild memory loss prior to January 14, 2009. 2. During the period prior to December 4, 2008, the Veteran's service connected status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 resulted in limitation of forward flexion to less than 30 degrees after consideration of additional impairment due to pain, weakness, incoordination, and fatigability on repetitive motion. 3. The Veteran's status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 results in mild sciatica in the left leg. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for PTSD prior to January 14, 2009 have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Code 9411 (2010). 2. The criteria for a 40 percent evaluation for status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 prior to December 4, 2008 have been met; the criteria for an evaluation in excess of 40 percent have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5243. 3. The criteria for a separate 10 percent evaluation, but no more, for sciatica of the left leg due to status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, 4.124a, Code 5243, 8520 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in February 2008 that contained all of the notification required by 38 C.F.R. § 3.159 for the claim for an increased evaluation for the back disability, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met for this issue. In regard to the claim for an increased evaluation for PTSD, the Board notes that this appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Board also notes that the Veteran was provided with proper VCAA notification in May 2008, which was before the initial adjudication of his claim for service connection. The Board finds that the duty to notify has also been met for this issue. The Board finds that the duty to assist has also been met. The Veteran's service treatment records have been obtained. VA treatment records have been obtained, and the Veteran has been afforded VA examinations. The Veteran declined his right to a hearing. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeals. Increased Evaluations The Veteran contends that the evaluation assigned to his back disability is inadequate. He argues that the pain it produces when he is being active made it impossible to continue working his previous jobs that involved manual labor. The Veteran further contends that the initial evaluation assigned for his PTSD does not reflect the impairment caused by this disability. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2010). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple 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). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In regard to the claim for a higher evaluation for PTSD, the Board notes that this issue involves the Veteran's dissatisfaction with the initial rating assigned following the grant of service connection. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). PTSD The record shows that the Veteran's claim for service connection was received in January 2008. Entitlement to service connection was granted in a June 2008 rating decision. This decision also assigned an initial evaluation of 30 percent. The Veteran's PTSD is evaluated under the General Rating Formula for Mental Disorders. Under this formula, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. The only criteria for a total disability rating for any disability rated in accordance with the VA General Rating Formula for Mental Disorders are total occupational and social impairment. Sellers v. Principi, 372 F.3d 1318, 1324 (Fed. Cir. 2004) A 70 percent evaluation is merited for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood due to such symptoms as suicidal ideation, obsessional rituals which interfere with routine activities, speech that is intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances (including work or a worklike setting), and an inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The 30 percent evaluation is merited for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9411. The evidence includes VA treatment records dated throughout 2008. February 2008 mental health clinic records show that the Veteran came in for evaluation of his anxiety, mood swings, insomnia, and lack of focus. He used to have nightmares but they went away. He had a history of excessive alcohol use to help him sleep, as well as an extensive amount of drugs after his deployment. On examination, the Veteran was alert and oriented to time, place, and person. He did not have suicidal or homicidal ideations, and his thoughts were coherent and goal-directed. The examiner's assessment was that the Veteran did not need further treatment for depression. The impression was PTSD, and the score on the Global Assessment of Functioning (GAF) scale was 55. The examiner placed the Veteran on medication. The Veteran was afforded a VA PTSD examination in May 2008. The claims folder was reviewed by the examiner. The Veteran was noted to have had a combat tour in Iraq. The Veteran described his current problems as lack of sleep, nightmares, not wanting to be around people, experiencing anxiety in crowds, and riding his motorcycle very fast in order to get his adrenalin up. He was on anti-depressant and anti-anxiety medication. The Veteran was not currently working and had quit his previous job due to back pain. On mental status examination, the Veteran was initially tense but eventually relaxed. His speech was initially hesitant but eventually became normal. His mood was anxious and his affect was appropriate. He denied hallucinations or illusions. The Veteran's thought process was logical and goal directed. There were no preoccupations, obsessions, or delusions. The Veteran had suicidal ideations of a passive nature, but no homicidal ideations. He was oriented times three. His attention and concentration showed some mild impairment resulting mild short-term memory loss. His long-term memory was intact. The Veteran's ability for abstract and insightful thinking was within normal range. Commonsense reasoning and judgment as well as moral and ethical thinking was dependent on his stress level. The Veteran would get about four hours of sleep each night with his medication, but it was not a deep sleep. He woke up every hour with thoughts, pain, or nightmares; although he reported that the nightmares occurred about twice a month. The Veteran described his energy level as moderate, and said he felt depressed some of the time. His anxiety depended on the situation and was worsened when around other people. He had a short temper and had broken things, but was not violent towards people. The Veteran had an exaggerated startle response. He was hypervigilant. He did not trust and could not get close to people. The Veteran felt distant from his wife, and had a numbing of general responsiveness. The May 2008 examiner's diagnosis was PTSD, and the examiner assigned a score on the GAF scale of 60. The examiner explained that the score of 60 was in the moderate range. This was assigned because while the Veteran did not have any friends, he was new to the area and had not met anyone. However, when he was working he was getting along reasonably well with co-workers and supervisors. The examiner added that the PTSD only mildly interfered with employment functioning, and that there was no impairment in thought process or communication. More than anything, his symptoms moderately interfered with his social functioning. VA treatment records dated June 17, 2008 show that the Veteran was seen at a VA emergency room with suicidal ideations, to include specific plans. He was noted to have run out of medication two days earlier. In addition, he was experiencing financial problems and had recently received some bad news in that regard. After receiving treatment, arrangements were made to admit him to the hospital. However, after speaking to his wife, the Veteran refused admission, and returned home to her with a plan to call if he experienced any more thoughts about harming himself. The Veteran returned to the hospital on June 18, 2008 as he had agreed to do the night before. He was feeling better and had slept well. On examination, he was alert and oriented. He no longer had suicidal ideations and noted that he continued to have his safety plan if they returned. He was not agitated, and appeared relaxed and well groomed. The Veteran agreed to take his original medication and to discontinue a second medication. It was agreed that hospitalization was not required. A follow-up record dated June 25, 2008 shows that the Veteran was feeling much better and believed that a certain medication had exacerbated his symptoms. After ending use of this medication, his sleep, anxiety, and mood had returned to baseline. His energy was good and he no longer had suicidal ideations. The Veteran maintained a safety plan as agreed to the previous week in case these ideations returned, but he insisted that he felt much better. On examination, the Veteran was alert and oriented. He did not have suicidal ideations, homicidal ideations, or psychosis. He believed his mood was good and that his original medication was working again. A November 2008 VA mental health clinic note states that the Veteran was alert and oriented, and did not have suicidal ideations or thoughts of harming others. His affect was well regulated and not depressed. The Veteran had mild anxiety but no agitation, and he was well groomed. He continued to have mild insomnia. His score on the GAF was estimated to be 65. VA treatment records from December 2008 show that the Veteran and his wife had been seen together. He was casually dressed with good eye contact. The Veteran was verbally engaged throughout the session. His affect and mood were congruent, and his thought process was logical, coherent, goal directed and linear. His thought content was devoid of suicidal or homicidal ideations. No agitation was noted, and he was oriented times three. The Veteran also denied auditory and visual hallucinations, delusions, and paranoia. His insight and judgment were adequate. After careful review of the Veteran's symptoms, the Board is unable to find that his PTSD was more than 30 percent disabling prior to January 14, 2009. With one notable exception, the Veteran did not display any of the symptoms required for an evaluation greater than 30 percent. The notable exception was the reports of passive suicidal ideations at the May 2008 VA examination and the acute episode of suicidal ideations on June 17, 2008. Suicidal ideations are a criterion for the 70 percent evaluation. As for the report of passive suicidal ideations at the May 2008, examination, the Board interprets this to mean fleeting suicidal thoughts without plan or intent. It is important to remember that the same May 2008, examiner who noted this symptom also characterized the Veteran's overall symptomatology as mild to moderate. In regard to the acute episode of suicidal ideation on June 17, 2008, the Board notes that this was much more serious, and included the Veteran's description of his planned method for the suicide. Fortunately, the Veteran sought immediate treatment, and this episode was attributed to a reaction to a certain medication, which was discontinued. He no longer had suicidal ideations on a follow-up visit the next day or on an additional visit approximately one week later. Suicidal ideations have not been reported since the June 17, 2008 episode, and the Board finds that this one day episode is not characteristic of the period on appeal. Instead, the Veteran's reported symptomatology shows that at no point has he exhibited a flattened affect, abnormal speech, panic attacks, difficulty in understanding commands, impairment of his long term memory, impaired judgment or impaired abstract thinking. He did report a shortened temper but without violence toward people. The Veteran's symptoms of an anxious and depressed mood, chronic sleep impairment, and mild memory loss are all contemplated by the criteria for the 30 percent evaluation. The May 2008 examiner described the Veteran's occupational impairment as mild and social impairment as moderate. The GAF scores for this period were between 55 and 65. A GAF score of 61 to 70 reflects some mild symptoms, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorder (DSM), 32 (4th ed.) (1994) (DSM-IV); 38 C.F.R. §§ 4.125, 4.130 (2005). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Board concludes that the Veteran's symptomatology for this period more nearly resembles that required for the 30 percent evaluation that is already assigned. 38 C.F.R. § 4.130, Code 9411. In reaching this decision, the Board has also considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b). There is no objective evidence that the Veteran's service connected PTSD presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. His symptoms are specifically contemplated by the rating criteria, and the May 2008, examiner described the occupational impairment due to PTSD as mild. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Back Disability Entitlement to service connection for intervertebral disc syndrome was established in a February 2005 rating decision. A 40 percent evaluation was assigned for this disability. A temporary total evaluation was assigned following surgery in May 2005, after which an October 2005 rating decision decreased the schedular evaluation to 20 percent. This disability continued to be evaluated as 20 percent disabling at the time the current claim was received in January 2008. The Veteran's disability is to be evaluated under either 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 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a Code 5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent evaluation is warranted; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Note (1) of the formula provides that, 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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is 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. Forward flexion of the cervical spine to 15 degrees or less, or favorable anklylosis of the entire cervical spine is evaluated as 30 percent disabling. Unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent evaluation. An evaluation of 50 percent or greater requires favorable or unfavorable ankylosis. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the general formula for diseases and injuries of the spine. Note (1) of this formula states that any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. 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 sum of the forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2). Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). There are other factors which must be considered in addition to those contained in the applicable rating code. The Board recognizes that the disability of the musculoskeletal system is primarily the inability due to damage or an infection in parts of the system to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Factors to be considered include pain on movement, weakened movement, excess fatigability, and incoordination. 38 C.F.R. §§ 4.40, 4.45. Functional impairment due to pain must be considered. 38 C.F.R. § 4.59. VA primary care treatment records dated January 2008 show that the Veteran was seen for complaints of back pain. His pain was making it difficult to sleep and he desired pain medications that included narcotics. His pain was described as a six on a scale to ten. He was able to get out of a chair without using his hands and he could walk on his heels and toes without difficulty. The Veteran was prescribed morphine and was to be followed at the pain clinic. January 2008 records from the VA pain clinic note the Veteran's back surgery and add that his symptoms had now returned, but were a lesser degree of severity than before. He had mild sensory radiculopathy and reduced L5 reflex. A recent magnetic resonance imaging study (MRI) had showed a small herniated disc pulposes at L4 to L5. The Veteran reported his pain fluctuated between four and seven on a scale to ten. It was located primarily in his low back with some radiation to the left leg. The examiner noted that the Veteran's wife was present to acknowledge the physical limitations of the Veteran's pain. The note also states the Veteran was disabled from his usual work due to increased pain with bending and lifting. The examiner believed the Veteran needed to consider retraining to a less physically demanding job. February 2008 pain clinic records show that the Veteran reported doing a little better. His maximum pain level was a four or five on a scale to ten. The lowest pain level would be a one or two, and the typical pain level was two to three. On examination, the Veteran had full range of motion with pain on full active flexion, but not extension. The impression was pain related diagnoses status post L4 to L5 decompression with persistent low back pain and intermittent L5 pain. The pain was mild and could be managed without opiates when he was off work and able to control his physical activities. The Veteran was afforded a VA examination of his back in April 2008. The claims folder was reviewed by the examiner. The Veteran had last worked in either late 2007 or early 2008, when he had worked for both a blasting company and a tree cutting company. He was noted to have a history of L4 to L5 hemilaminectomy and discectomy. He said that for the year after the surgery he was able to endure the pain and would only get flare-ups with use. Currently, he had a chronic, dull pain that would become sharp with any kind of minimal use. The Veteran reported that this was the reason he had stopped working. He would still intermittently get occasional radiation of pain down the left leg. On examination, the Veteran's gait and posture were within normal limits. There was some superficial swelling around the surgical scar. There was no paravertebral muscular tenderness and no spasticity noted. Straight leg raising elicited pain at roughly 45 degrees on the right and left sides in the lower back. Patellar and ankle reflexes were two plus bilaterally. There was no evidence of muscular atrophy in the bilateral lower extremities. The range of motion of the lumbar spine was flexion from zero to 40 degrees. He was able to flex from 40 to 65 degrees with pain. Extension was from zero to 20 degrees without pain, and he reported severe pain beyond 20 degrees. Right and left lateral flexion was zero to 20 degrees, and right and left rotation were the normal zero to 30 degrees. As for additional impairment due to pain, weakness, fatigability and incoordination, the examiner noted that there was painful motion on the examination. It was feasible that with flare-ups after repetitive use that the Veteran would lose an additional 20 to 30 degrees of motion. There was a moderate affect on his activities of daily living, and moderate effect on his usual line of work, which involved heavy labor. The diagnoses were chronic lumbosacral strain with residuals of L4 to L5 hemilaminectomy and discectomy. An August 2008 letter from the Veteran's VA social worker states that the Veteran was currently unable to work due to his back condition and associated pain. A convalescence period was recommended. VA psychiatric treatment records from December 2008 state that the Veteran continued to have back pain, which affected his mood. He sought an increase in his back pathology in a document received December 4, 2008. The VA spine examination conducted on January 14, 2009 states that the Veteran had not experienced any incapacitating episodes as a result of his back disability. After careful review of the Veteran's contentions and the medical findings, the Board finds that entitlement to a 40 percent evaluation has been demonstrated for the earlier period on appeal. The record shows that the January 2009 rating decision that increased the evaluation for the Veteran's back disability to 40 percent did so based on findings in the January 14, 2009 VA examination that shows the Veteran's forward flexion was reduced to less than 30 degrees after repetitive motion. The Board notes that similar findings were demonstrated on the April 2008 VA examination. That examination found that the Veteran's forward flexion was from zero to 40 degrees, and that additional flexion was accompanied by pain. However, the examiner added that it was feasible that the Veteran would lose an additional 20 to 30 degrees of motion after repetitive use. This would also result in limitation of flexion to less than 30 degrees, which merits a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Therefore, the Board concludes that an increased evaluation is warranted prior to December 4, 2008. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Code 5243. Moreover, the Board also finds that acting under Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, entitlement to a separate 10 percent evaluation is demonstrated for mild incomplete paralysis of the sciatic nerve of the left leg. This is based on the findings of the January 2008 VA treatment records that show radiation of pain into the left leg, as well as the April 2008 VA examination that also notes intermittent radiation of pain down the left leg. As these symptoms have been characterized as intermittent, the Board concludes that they are best characterized as mild under the appropriate rating code, which results in a 10 percent evaluation. 38 C.F.R. § 4.124a, Code 8520. There is no basis for finding moderate impairment based on these intermittent symptoms. The Board has considered entitlement to an evaluation in excess of 40 percent for the Veteran's back disability during this period, but this is not demonstrated by the evidence. None of the records from this period refer to an incapacitating episode, and the January 2009 VA examination states that the Veteran has not experienced any incapacitating episodes. In the absence of such episodes, there is no basis for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Furthermore, the medical records are entirely negative for any evidence of the ankylosis of the spine that would be required for an evaluation in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. The Board concludes that there is no basis for a rating greater than 40 percent. 38 C.F.R. § 4.71a, Code 5243. The Board has also considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b). There is no objective evidence that the Veteran's service connected back disabilities presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The Veteran was not hospitalized for his disability during this period. While the evidence shows that the Veteran left his job due to his back pain, pain and limitation of motion are specifically contemplated by the rating criteria. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial evaluation in excess of 30 percent for PTSD prior to January 13, 2009 is denied. Entitlement to a 40 percent evaluation for status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 prior to December 4, 2008 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a separate 10 percent evaluation for left leg sciatica as a result of status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The record indicates that the Veteran's claims for entitlement to a higher initial evaluation for PTSD and an increased evaluation for his back disability have been continuously on appeal since the January 2008 claim. It is acknowledged that the correspondence from the Veteran and his representative has been confusing. However, the Board believes that it was their intent to continuously pursue higher evaluations for each of these disabilities. This seems to have been acknowledged in the July 2009 statement of the case, which recognizes only the January 2008 claim and does not refer to any withdrawals or additional claims. Unfortunately, the only two issues addressed in the July 2009, statement of the case are the two that have been addressed above by the Board. The Board notes that although the RO increased the evaluation for the Veteran's back disability to 40 percent effective December 4, 2008, and increased the evaluation for PTSD to 50 percent effective January 14, 2009, a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded or the appeal is withdrawn. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the original notice of disagreement with the June 2008 rating decision includes the issues of entitlement to an evaluation in excess of 50 percent for PTSD from January 14, 2009, and entitlement to an evaluation in excess of 40 percent for status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 from December 4, 2008, and the Veteran must be provided a statement of the case for each of these issues. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case for the issues of entitlement to an evaluation in excess of 40 percent for status post left lumbar spine hemi-laminectomy and discectomy at L4 to L5 from December 4, 2008; and entitlement to an evaluation in excess of 50 percent for PTSD from January 14, 2009. The Veteran should also be notified of the necessity of submitting a substantive appeal, and these issues should be returned to the Board only if the Veteran submits a timely substantive appeal. If he desires to withdraw the appeal as to these issues, he may do so in writing at the RO/AMC. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs