Citation Nr: 1227167 Decision Date: 08/07/12 Archive Date: 08/14/12 DOCKET NO. 10-12 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating for the herniated nucleus pulposus with scoliosis of the lumbar spine, currently evaluated as 10 percent disabling. 2. Entitlement to an initial disability rating in excess of 10 percent for the right lumbosacral radiculopathy. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to June 1996. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim for a disability rating in excess of 10 percent for the herniated nucleus pulposus with scoliosis of the lumbar spine. The Veteran then perfected a timely appeal regarding this denial. The September 2008 rating decision also granted service connection for right lumbosacral radiculopathy, and assigned an initial disability rating of 10 percent, effective January 28, 2008. The Veteran then perfected a timely appeal regarding the initial disability rating assigned for his right lumbosacral radiculopathy. In October 2011, the Veteran was afforded his requested Travel Board hearing at the local RO in Waco, Texas, before the undersigned Acting Veterans Law Judge (AVLJ). The Veteran and his spouse both testified. A transcript of the hearing has been associated with the claims file. The RO certified this appeal to the Board in July 2011. Subsequently, additional evidence was added to the claims file. However, the Veteran waived his right to have the RO initially consider this evidence in a July 2012 statement. 38 C.F.R. §§ 20.800, 20.1304 (2011). In January 2012, the RO informed the AVLJ that the Veteran had recently filed a claim of entitlement to service connection for left lumbosacral radiculopathy. This claim is not currently located in the Veteran's paper claims file or his Virtual VA claims file. However, the Board finds that this issue has been raised, 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. FINDINGS OF FACT 1. The Veteran's herniated nucleus pulposus with scoliosis of the lumbar spine is manifested by pain and some limitation of motion, but the forward flexion of the thoracolumbar segment of his spine is not limited to 60 degrees or less, and the combined range of motion of this segment is not limited to 120 degrees or less, nor is there muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Since June 8, 2010, the Veteran's herniated nucleus pulposus with scoliosis of the lumbar spine has been additionally productive of bladder impairment, manifested by voiding once per night (nocturia). 3. The Veteran's right lumbosacral radiculopathy is manifested by numbness, instability pain, and tenderness - all characteristic of a moderate, but not moderately severe, sensory disability. CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating higher than 10 percent for the herniated nucleus pulposus with scoliosis of the lumbar spine. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5243 (2011). 2. Since June 8, 2010, the criteria are met for a separate, noncompensable (0 percent) disability rating for nocturia, secondary to the service-connected herniated nucleus pulposus with scoliosis of the lumbar spine. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.115a, 4.115b, DCs 7542-7599 (2011). 3. The criteria are met for a higher 20 percent initial disability rating, but no higher, for the right lumbosacral radiculopathy. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.123, 4.124a, DC 8520 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A. Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA 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; and, (3) that the claimant is expected to provide. Regarding the right lumbosacral radiculopathy claim, this claim arises from a granted claim of service connection. The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's military service and the disability; (4) degree of disability; and, (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C.A. § 5103(a). Compliance with the first Pelegrini II element requires notice of these five elements in initial ratings cases. See Dunlop v. Nicholson, 21 Vet. App. 112 (2006). A letter dated in April 2008 fully satisfied the duty to notify provisions, including notice of the degree of disability, for the right lumbosacral radiculopathy claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to this claim. The April 2008 letter told him to provide any relevant evidence in his possession. See Pelegrini II, 18 Vet. App. at 120-21. The Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). However, relying on the informal guidance from the VA Office of the General Counsel and a VA Fast Letter issued in June 2008 (Fast Letter 08-16; June 2, 2008), the Board finds that the Vazquez-Flores decision does not apply to the right lumbosacral radiculopathy claim. According to VA Office of General Counsel, because this matter concerns an appeal from an initial rating decision, VCAA notice obligations are fully satisfied once service connection has been granted. Any further notice and assistance requirements are covered by 38 U.S.C.A. §§ 5104(a), 7105(d)(1), and 5103A as part of the appeals process, upon the filing of a timely Notice of Disagreement (NOD) with respect to the initial rating or effective date assigned following the grant of service connection. Additionally, the Veteran has not alleged that he received inadequate VCAA notice for his right lumbosacral radiculopathy claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding as to the notice requirements for downstream earlier effective date claims following the grant of service connection: "that where a claim has been substantiated after the enactment of the VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). Thus, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed with respect to this claim. Regarding the lumbar spine claim, prior to the initial RO adjudication of this claim, a letter dated in April 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. The Court held that to satisfy the first Quartuccio element for an increased-compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores, 22 Vet. App. at 43. The United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores in part, striking claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus modified, VA must notify the claimant that: 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability; 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment; and, 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores, 22 Vet. App. at 43, overruled in part sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). This was accomplished by the April 2008 notice letter. Thus, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed with respect to this claim. As there is no indication that there exists any evidence that could be obtained to affect the outcome of this case, no further VCAA notice is necessary. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that VCAA notice is not required where there is no reasonable possibility that additional development will aid the Veteran). B. Duty to Assist The duty to assist the Veteran with his claims includes the procurement of his service treatment records (STRs) and pertinent treatment records since his active military service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran's STRs and post-service VA and private treatment records have been obtained and associated with the claims file. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. There is no indication of any outstanding records that are potentially relevant, and therefore also would need to be obtained and considered, to include from the Social Security Administration (SSA). See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The duty to assist also includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran with appropriate VA examinations in July 2008, August 2008, and June 2010. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. See 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The recent June 2010 VA examination report is thorough and supported by the outpatient treatment records. The examination in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Additionally, the Veteran was afforded his requested Travel Board hearing before the undersigned AVLJ. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) (2011) requires that the Veterans Law Judge (VLJ) who conducts a Board hearing fulfill two duties to comply with the above regulation. These duties consist of: (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing, the AVLJ specifically noted the issues as entitlement to a rating in excess of 10 percent for a lumbar spine disability and a rating in excess of 10 percent for right lumbosacral radiculopathy. The AVLJ noted the elements of the claims that were lacking to substantiate the claims for benefits. The Veteran was assisted at the Board hearing by an accredited representative from the Texas Veterans Commission (TVC). The representative and the AVLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of these claims. In addition, the AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The representative specifically asked the Veteran about the current severity of his lumbar spine and right leg, and the effects of these symptoms on his daily life and employment. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's Board hearing constitutes harmless error. II. Schedular Evaluation of Herniated Nucleus Pulposus Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate DCs identify the various disabilities. The assignment of a particular DC is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which DC or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). An unappealed rating decision in December 1996 granted service connection for the Veteran's herniated nucleus pulposus with scoliosis of the lumbar spine. While his entire history is reviewed when making a disability determination, 38 C.F.R. § 4.1, where, as here, service connection already was established years ago and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Although an adjudicator is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. A "staged" rating is appropriate for an increased-rating claim, however, even when the claim does not involve an initial rating, when in assessing the present level of disability the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant temporal focus is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007); see 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2011). The Veteran's herniated nucleus pulposus with scoliosis of the lumbar spine is currently rated as 10 percent disabling under DC 5237, which refers to the General Rating Formula for Diseases and Injuries of the Spine. This General Rating Formula provides a 10 percent disability rating for 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. The higher 20 percent disability 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. 38 C.F.R. § 4.71a. DC 5237. These criteria apply 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. 38 C.F.R. § 4.71a. Note (2) of the General Rating Formula provides that, 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 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 thoracolumbar spine is 240 degrees. See Plate V, 38 C.F.R. § 4.71a. Applying these criteria to the facts of this case, the Board finds that the Veteran is not entitled to a higher rating of 20 percent for his herniated nucleus pulposus with scoliosis of the lumbar spine. None of the requirements for the higher 20 percent disability rating were diagnosed or objectively noted. 38 C.F.R. § 4.71a, DC 5237. Specifically, regarding forward flexion, during his July 2008 VA examination, the Veteran's forward flexion of his thoracolumbar spine was to 90 degrees, even when considering his pain (keeping in mind that normal is to 90 degrees). During the August 2008 VA examination, the Veteran's forward flexion was to 65 degrees, even when considering his pain. At the June 2010 VA examination, the Veteran's forward flexion was to 90 degrees, even when considering his pain. The VA and private treatment records in the claims file do not provide contrary results. Thus, the Veteran's forward flexion of the thoracolumbar spine greater has not been 60 degrees or less during the appeal period - the requirement for the 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5237. Further, at the July 2008 VA examination, the Veteran's combined range of motion was 240 degrees, even when considering his pain (with normal being 240 degrees). At the August 2008 VA examination, the Veteran's combined range of motion was 150 degrees, even when considering his pain. At the June 2010 VA examination, the Veteran's combined range of motion was 220 degrees, even when considering his pain. The VA and private treatment records in the claims file do not provide contrary results. Thus, the Veteran's combined range of motion of the thoracolumbar spine has not been 120 degrees or less during the appeal period - the requirement for the 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5237. Regarding muscle spasms of the lumbar spine, this symptom was not displayed at the VA compensation examinations or in the VA and private treatment records. Regarding guarding of the lumbar spine, this symptom was not displayed at the July 2008 or June 2010 VA compensation examinations, or in the VA and private treatment records. However, the August 2008 VA examiner determined that the Veteran had moderate muscle guarding of his lumbar spine bilaterally. The examiner also found that the Veteran's gait was "swaying, right lateral to left lateral position." Nonetheless, the August 2008 VA examiner, or any of the other VA examiners, did not find evidence that this guarding was severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. None of these abnormalities were documented in the VA compensation examination reports or in the treatment records. Despite the fact that the Veteran was originally service-connected for "herniated nucleus pulposus with scoliosis of the lumbar spine," the examination reports and the treatment records do not contain complaints of or treatment for scoliosis. For instance, the recent June 2010 VA examiner determined that the Veteran did not have a diagnosis of scoliosis and he could find no evidence of scoliosis. The July 2008 VA examiner found that the Veteran's gait was normal, and the examiner determined that the Veteran did have scoliosis, but it was congenital. The examiner concluded that the Veteran did not have muscle spasms or guarding of his lumbar spine severe enough to be responsible for an abnormal gait or spinal contour. Thus, the Board finds that the Veteran's herniated nucleus pulposus with scoliosis of the lumbar spine has not been manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis during the appeal period - the requirement for the 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5237. Regarding the Veteran's pain in his lumbar spine, the July 2008 VA examiner determined that the Veteran did not have pain on active motion, passive motion, or repetitive motion of the lumbar spine. Additionally, the VA examiner determined that the Veteran did not have additional loss of motion on repetitive use of the joint. The August 2008 VA examiner found that the Veteran did have pain on motion and pain on repetitive motion, but the examiner concluded that the pain did not cause any additional limitation of motion of the lumbar spine. The June 2010 VA examiner determined that there was no objective evidence of pain on active range of motion. The examiner also found that there was no objective evidence of pain or additional limitations following repetitive motion of the lumbar spine. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. 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). Here, though, even when considering the Veteran's pain, his ranges of motion of the lumbar spine, as documented in the VA examinations and the treatment records, do not provide objective support for a higher disability rating of 20 percent. Thus, the Veteran is not entitled to a higher disability rating based on his pain and functional loss in the lumbar spine. The Board notes that the Veteran was also diagnosed with degenerative disc disease at the June 2010 VA examination. Degenerative disc disease is evaluated under 38 C.F.R. § 4.71a, DC 5243, which refers to intervertebral disc syndrome based on incapacitating episodes. Under DC 5243, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated 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 38 C.F.R. § 4.25 (the combined ratings table). 38 C.F.R. § 4.71a. 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. 38 C.F.R. § 4.71a, DC 5243. For purposes of assigning 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1 (2011). The Veteran has a diagnosis of degenerative disc disease. However, there is no evidence of record indicating that the Veteran has ever had an incapacitating episode (as defined by DC 5243) due to his herniated nucleus pulposus with scoliosis of the lumbar spine. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not apply to the Veteran. 38 C.F.R. § 4.71a. Additionally, as mentioned above, the General Rating Formula for Diseases and Injuries of the Spine has already been applied to the Veteran's lumbar spine disability. 38 C.F.R. § 4.71a, DC 5243. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran, to include his testimony before the Board, his correspondence to VA and his statements to various medical providers. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Thus, the Veteran is competent to report his symptoms in including pain, and his spouse is competent to present eyewitness testimony to the Veteran's observable symptoms. In this case the Veteran has presented evidence regarding back pain and associated limitation of motion, and his spouse has presented corroborative evidence regarding the Veteran's impairment of daily activities. However, even affording full credibility to these lay statements, they do not show the Veteran's symptoms more closely approximated the schedular criteria for higher evaluation under the General Rating Formula. Finally, the Board has considered whether a separate disability rating is warranted based upon neurological abnormalities associated with the Veteran's herniated nucleus pulposus with scoliosis of the lumbar spine. In this regard, the Veteran is already service-connected for right lumbosacral radiculopathy. Additionally, in January 2012, the RO informed the AVLJ that the Veteran had recently filed a claim of entitlement to service connection for left lumbosacral radiculopathy. Therefore, that is a separate claim that does not need to be addressed by the Board at this time. Regarding erectile dysfunction or bowel dysfunction, the evidence of record, to include the VA examinations, does not establish, and the Veteran does not contend, that he currently experiences these symptoms. The Board has found the Veteran has bladder dysfunction associated with his herniated nucleus pulposus, which will be discussed by in further detail below. The Veteran's herniated nucleus pulposus with scoliosis of the lumbar spine has not met the requirements for a higher 20 percent disability rating under the General Rating Formula during any distinct period during the course of the appeal, so the Board cannot "stage" this rating under Hart v. Mansfield, 21 Vet. App. 505 (2007). For these reasons and bases, the preponderance of the evidence is against the Veteran's claim. Thus, there is no reasonable doubt to resolve in his favor and his claim of entitlement to a disability rating in excess of 10 percent for the herniated nucleus pulposus with scoliosis of the lumbar spine must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Separate Schedular Disability Rating for Bladder Impairment As noted above, neurologic abnormalities associated with a disability of the spine, including but not limited to bowel or bladder impairment, are evaluated separately under the appropriate diagnostic code. The medical evidence of record, combined with the Veteran's lay statements, establishes that his herniated nucleus pulposus with scoliosis of the lumbar spine is productive of nocturia. At the recent VA spine examination in June 2010 the Veteran reported experiencing nocturia. Following a physical examination of the Veteran, the examiner determined that the etiology of this nocturia is "not unrelated" to the herniated nucleus pulposus with scoliosis of the lumbar spine. Additionally, at his Board hearing in October 2011, when asked if his herniated disc caused any bladder problems, the Veteran testified that "sometimes" he has to go to the bathroom frequently. The Veteran's spouse also testified that sometimes the Veteran "wets the bed" during his sleep. Therefore, the evidence reflects that the Veteran experiences nocturia in connection with his service-connected herniated nucleus pulposus with scoliosis of the lumbar spine. In this regard, nocturia is not listed on the Rating Schedule. Therefore, the Board will evaluate this disability by analogy. 38 C.F.R. §§ 4.20, 4.115a, 4.115b. In this context, the Board finds that the Veteran's nocturia closely resembles a neurogenic bladder impairment manifested by urinary frequency. 38 C.F.R. § 4.115b. Under the criteria of DC 7542, neurogenic bladder is to be rated as voiding dysfunction; however, as noted, the manifestations of the Veteran's neurogenic bladder more closely resemble urinary frequency and, as such, will be rated there under. 38 C.F.R. § 4.115a. Under the criteria of 38 C.F.R. § 4.115a, urinary frequency warrants a compensable, 10 percent disability rating with daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours, or awakening to void three to four times per night. 38 C.F.R. § 4.115a. In applying the facts to the foregoing criteria, and after resolving all doubt in favor of the Veteran, the Board finds that a separate, noncompensable disability rating is warranted for the Veteran's nocturia. At his June 2010 VA examination, the Veteran reported that his nocturia is manifested by voiding once per night. Thus, the Board finds that the Veteran's nocturia warrants a noncompensable disability rating. 38 C.F.R. § 4.115a. The noncompensable disability rating is assigned, effective June 8, 2010, the date of the Veteran's VA examination and the date of the first lay or medical evidence of nocturia in the record. For instance, at the July 2008 VA examination, the Veteran denied urinary incontinence, urinary urgency, urinary retention, or urinary frequency. Thus, the Board finds that June 8, 2010, is the appropriate effective date for the initial disability rating. Id. However, the Veteran's nocturia does not warrant a compensable 10 percent disability rating. At the VA examination, the Veteran denied urinary frequency and reported voiding only once per night. See June 2008 VA examination report. There is no lay or medical evidence of daytime voiding interval between two and three hours, awakening to void two times per night, or more frequent daytime or nighttime voiding - to warrant a compensable disability rating. Therefore, a noncompensable disability rating, but no higher, is warranted for the nocturia, secondary to the herniated nucleus pulposus with scoliosis of the lumbar spine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.31, 4.115a, 4.115b, DCs 7542-7599. IV. Schedular Initial Evaluation of Right Lumbosacral Radiculopathy If, as here, there is disagreement with the initial disability rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. In other words, VA may "stage" the rating to compensate the Veteran for times since the effective date of his award when his disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran asserts that he is entitled to a higher initial rating for his service-connected right lumbosacral radiculopathy, currently evaluated as 10 percent disabling under 38 C.F.R. § 4.124a, DC 8520. DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis that is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Applying these criteria to the facts of this case, the Board finds that the Veteran has moderate incomplete paralysis of the left sciatic nerve, which warrants a higher initial disability rating of 20 percent for the right lower extremity. 38 C.F.R. § 4.124a, DC 8520. Specifically, at his Board hearing, the Veteran testified that his right leg and foot are manifested by pain and numbness, which prevent him from running. The Veteran stated that he occasionally experiences loss of control over his right leg and right foot, which has caused his leg to give way and has caused him to fall on a few occasions. The Veteran also described involuntary movement of his right leg. The Veteran testified that in the past he had been confined to bed rest for a two week period because of his right lumbosacral radiculopathy. The Veteran also described experiencing these symptoms at his VA examinations. Additionally, at the July 2008 VA examination, the VA examiner determined that the Veteran's light touch on the right leg was impaired. At the August 2008 VA examination, the VA examiner determined that the Veteran had decreased sensation in his right leg and his strength was "fair minus." Therefore, resolving all reasonable doubt in his favor, the Board finds that the evidence warrants a higher initial disability rating of 20 percent rating for the right lumbosacral radiculopathy under DC 8520 for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. However, the Veteran is not entitled to a higher 40 percent rating for the right lumbosacral radiculopathy under DC 8520 since the evidence of record does not establish that his incomplete paralysis of the sciatic nerve is moderately severe in this extremity. Indeed, at the July 2008 VA examination, the Veteran had normal knee jerk. The July 2008 VA examiner determined that the Veteran's light touch on the right leg was impaired, but was not absent. The examiner also found that the Veteran's vibration, pain, and position sense of the right leg were normal. At the August 2008 VA examination, the VA examiner found that, while the Veteran did have decreased sensation in his leg and "fair minus" strength in his right leg, his muscle tone was normal and he did not have muscle atrophy. The August 2008 VA examiner also indicated that the Veteran had a "slightly" hyperactive knee jerk on the right side. At the June 2010 VA examination, the Veteran's motor examination of the right leg was normal. At an August 2011 private examination, the private physician determined that the Veteran had a normal right lower extremity with normal sensation and no pain. Thus, the Veteran's symptoms have ranged from normal to slightly impaired or fair. These types of symptoms do not demonstrate a moderately severe disability, but instead show, at most, a moderate disability. Therefore, the Veteran's incomplete paralysis of the sciatic nerve is best rated as moderate in his right lower extremity. 38 C.F.R. § 4.124a, DC 8520. The Veteran's lay evidence concerning the severity of his right lumbosacral radiculopathy has been considered in granted this increased rating. The Board notes in that regard that the Veteran has testified to uncontrollable right side spasm, but motor examination has consistent been normal; the objective evidence of record confirms only sensory problems (pain and numbness), for which evaluation is warranted at the "moderate" level at most. Lay evidence regarding symptoms other than sensory is unsubstantiated and probatively outweighed by the objective medical findings to the contrary. See Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494-95; Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310; see also 38 C.F.R. § 3.159(a)(2); Rucker, 10 Vet. App. at 67; Layno, 6 Vet. App. at 469; see, too, Buchanan v. Nicholson, 451 F.3d at 1335. Since, as mentioned, the present appeal arises from an initial rating decision that established service connection and assigned an initial disability rating, it is not the present level of disability that is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings (i.e., separate ratings for separate periods of time based on the facts found. See Fenderson, 12 Vet. App. at 125-26. The Veteran, however, has not met the requirements for a schedular rating in excess of 20 percent at any time since the effective date of his award, so the Board may not stage his disability rating because he has been, at most, 20 percent disabled during the entire period at issue. For these reasons and bases, the Board has found the evidence shows entitlement to schedular rating of 20 percent, but not more, for right lumbosacral radiculopathy. The appeal is granted to this degree. Benefit of the doubt has been resolved in favor of the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany, 9 Vet. App. at 519. V. Extraschedular Consideration The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Here, the Veteran is currently retired and self-employed part-time. At his Board hearing, the Veteran testified that, during flare-ups of the disabilities currently on appeal, he does require additional assistance when performing the duties required for his self-employment. However, the recent June 2010 VA examiner determined that the disabilities currently on appeal do not prevent the Veteran's employability. The Board acknowledges the Veteran's contentions; however, the Board finds the severity of the herniated nucleus pulposus with scoliosis of the lumbar spine, right lumbosacral radiculopathy, and nocturia are fully contemplated by the rating criteria. There is nothing exceptional about these service-connected disabilities, to include hospitalizations or unemployability. The degree of these disabilities exhibited is contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 111. VI. TDIU Consideration Finally, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating by reason of individual unemployability (TDIU) due to service-connected disabilities is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, a TDIU issue is not raised by the record. The Veteran is currently retired and self-employed part-time. At his Board hearing, the Veteran testified that, during flare-ups of these disabilities, he does require additional assistance when performing the duties required for his self-employmentthe disabilities. However, the record does not indicate, and the Veteran has not claimed, that he was forced to retire due to the service-connected disabilities on appeal, or that he is completely unable to carry out his self-employment due to these disabilities. Therefore, the Board finds that consideration of a TDIU is not warranted. ORDER A disability rating higher than 10 percent for the herniated nucleus pulposus with scoliosis of the lumbar spine is denied. A 20 percent initial disability rating for the right lumbosacral radiculopathy is granted, subject to the laws and regulations governing the payment of VA compensation. Service connection for nocturia is granted as secondary to the herniated nucleus pulposus with scoliosis of the lumbar spine, and an initial disability rating of 0 percent (noncompensable) is assigned effective June 8, 2010. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs