Citation Nr: 1237681 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 09-29 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for service-connected lumbosacral strain, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for service-connected right lower extremity radiculopathy, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Millikan, Counsel INTRODUCTION The Veteran served on active military duty from May 1985 to March 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) and a November 2011 Board remand. In May 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. FINDINGS OF FACT 1. Lumbosacral strain is manifested by forward flexion to 65 and 70 degrees and combined range of lumbar spine motion of 180 and 190 degrees, but additional functional loss causing an antalgic gait and intermittent spasms. 2. Right lower extremity radiculopathy is manifested by moderate incomplete paralysis due to reduced reflexes but full muscle strength and normal sensation. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent, but no more, for service-connected lumbar strain have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for an evaluation higher than 20 percent for service-connected right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). For increased rating claims, the VCAA requires generic notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A December 2008 letter that provided the required notice was sent to the Veteran prior to initial adjudication of his claim. Additionally, the Veteran was represented by a certified veterans' service organization throughout the claims process. Accordingly, VA's duty to notify has either has been satisfied or any deficiency has caused no prejudice to the Veteran. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records, VA medical records, and identified private medical records have been obtained. Although Social Security Administration (SSA) records are not associated with the claims file, VA requested the records and received negative responses in March and April 2009. Additionally, the RO issued a memorandum of unavailability regarding the records and notified the Veteran of the inability to obtain the records. See 38 C.F.R. § 3.159(e); VA Adjudication Procedures Manual, M21-1MR, Part I, Subpart 1, Chapter C, Section 5. Additionally, the Veteran sent in evidence after the most recent supplemental statement of the case. Upon receipt of relevant evidence after the initiation of an appeal and after the claims file is transferred to the Board, the Board must remand the appeal to the RO for review unless the veteran submits a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). However, this newly submitted evidence was duplicative of records and statements already in the claims file. The Board thus finds that waiver of this evidence is not required as it is not relevant. Furthermore, VA provided the Veteran with adequate medical examinations in 2007, 2009, and 2012. The examinations are adequate because each contains a history obtained from the Veteran and a thorough orthopedic examination relevant to the applicable rating criteria. Additionally, a neurologic evaluation was provided in 2012. Finally, the Veteran provided testimony at a 2011 Board hearing. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486 This appeal was remanded by the Board in November 2011. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). That remand requested that the Appeals Management Center (AMC) obtain updated VA medical records, obtain particular private medical records, and provide the Veteran with a VA examination addressing orthopedic and neurologic manifestations of the service-connected lumbar strain. Updated VA and private medical records are associated with the claims file. Additionally, the AMC provided the required examinations that addressed the questions in the remand in January 2012. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2012). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). In December 2008, the Veteran filed a claim for an increased evaluation. At that time, the service-connected lumbar strain was evaluated as 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The service-connected right lower extremity radiculopathy was assigned a 10 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8520. By a February 2009 rating decision, the RO denied increased evaluations. The Veteran appealed. In an August 2012 rating decision, the RO assigned a 20 percent evaluation for right lower extremity radiculopathy, effective December 3, 2008. A November 2007 VA spine examination was conducted upon review of the claims file. The Veteran reported low back pain caused by various triggers and occasional radiation of pain to the right lower extremity. He radiating pain occurred approximately three times per month when back pain was severe. The pain was sharp and lasted for hours. Pain was improved with Tylenol. The Veteran denied urinary and fecal incontinence, numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. The Veteran reported back pain and spasms. The pain was dull, severe, occurred one to six days per week, and lasted hours. The Veteran denied a history of fatigue, decreased motion, stiffness, and weakness. He reported severe weekly flare-ups that were precipitated by running, prolonged standing in one spot, and heavy lifting. The flare-ups were alleviated by Tylenol, avoiding triggers, and using an ice pack. He reported that during severe flare-ups he sat in his recliner with an ice pack, took medications, and waited for the pain to decrease. If that did not work, he attempts to sleep. He used a cane and a brace, but there was no limitation to walking. The Veteran was employed full-time as a sales associate at Wal-mart. He had worked there for one to two years. He lost two weeks of work time in the past year due to low back and right leg pain. Upon examination, there was normal posture and gait. There were no abnormal spine curvatures, ankylosis, spasm, atrophy, guarding, pain with motion, tenderness, or weakness. There was 5/5 bilateral lower extremity strength. Muscle tone was normal and there was no muscle atrophy. There were normal sensory and reflex examinations of the bilateral lower extremities. Lumbosacral spine range of motion was 70 degrees of flexion, 20 degrees of extension, 20 degrees of bilateral lateral flexion, and bilateral lateral rotation to 30 degrees. There was no objective evidence of pain on active range of motion or repetitive motion, and no additional limitations after three repetitions. Straight leg raise tests were negative. Magnetic resonance imagining (MRI) showed normal alignment of the lumbar spine but mild disc bulges. The diagnosis was lumbar strain with radiculopathy. There were significant effects on the Veteran's usual occupation due to problems with lifting, carrying, difficulty reaching, and pain. There were no effects on grooming, toileting, dressing, bathing, feeding, traveling, and recreation, and moderate effects on chores, shopping, and sports. There were also moderate effects on exercise - the Veteran avoided sports that including running, bending, jumping, or sprinting. In a January 2008 VA medical record, the Veteran reported low back pain that was intermittent, dull, aching, and radiated to the right lower extremity. The pain was 3/10, was alleviated by Tylenol, and was aggravated by bending and lifting. He denied paresthesia and bowel and bladder dysfunction. There was no spinal tenderness or sensory or motor deficits. In an April 2008 VA record, the Veteran reported low back stiffness and pain that was constant, dull, and aching. The pain was 3/10, aggravated by lifting and bending, and alleviated by Tylenol #3. He denied lower extremity weakness, parasthesia, and bowel and bladder dysfunction. Examination indicated no spinal tenderness, negative straight leg raise, and no motor or sensory deficits. In a July 2008 VA record, the Veteran reported low back pain that was constant, aching, and radiated to the right lower extremity. Pain was 4/10 and was aggravated by bending and lifting at work, and was alleviated with Tylenol #3. There was stiffness and intermittent paresthesia. He denied lower extremity weakness and bowel or bladder dysfunction. Examination indicated no spinal tenderness, a negative straight leg raise test, and no motor or sensory deficits. In an August 2008 VA medical record, the Veteran reported chronic low back pain. The pain was constant, dull, and aching, with intermittent sharp pain radiating down the right lower extremity The pain was aggravated by bending, walking, and prolonged standing, and alleviated by Tramadol. There was stiffness, but no lower extremity weakness, bowel or bladder dysfunction, or motor or sensory deficits. There was tenderness of the spine with palpation at L2-L4 and spasms, but negative straight leg raise tests. In a December 2008 VA record, the Veteran reported low back pain that was constant, dull, aching and radiated to the right lower extremity. The pain was 8/10 and was aggravated by rotation. He denied lower extremity weakness and bowel and bladder dysfunction, but reported paresthesia of the right lower extremity. There was no spinal tenderness, but there was spasms and tenderness with lateral rotation. Straight leg raise tests were negative and there were no motor or sensory deficits. In another December 2008 VA record, the Veteran reported chronic low back pain that was dull and aching. The pain was 3/10 and was alleviated by Tylenol #3. He reported stiffness and paresthesia of the left lower extremity, but denied bowel and bladder dysfunction. There were no motor or sensory deficits. There was back tenderness from L2 to L4, negative straight leg raise, and tenderness of the lumbar paravertebrals. A January 2009 VA spine examination was conducted upon a review of the Veteran's medical records. The Veteran reported daily pain that requires Tylenol #3 and Tramadol. He reported recurrent numbness and tingling of the right leg. The Veteran denied a history of urinary and fecal incontinence, leg and foot weakness, fails, and unsteadiness. He reported numbness, paresthesia, erectile dysfunction, stiffness, weakness, and pain due to lifting. The pain was throbbing, moderate, constant, and daily. The pain radiated to the right leg and felt electrical. He denied fatigue, decreased motion, and spasms. The Veteran reported severe flare-ups that occurred every five to six months, and lasted three to seven days. The flare-ups were precipitated by lifting and alleviated by rest. He reported that in November 2008, he had an incapacitating episode of one week. He was able to walk one to three miles. Upon examination, there was normal posture and gait. There were no abnormal spinal curvatures, ankylosis, left thoracic sacrospinalis spasm, atrophy, guarding, pain with motion, tenderness, or weakness. There was no right thoracic sacrospinalis atrophy or weakness, but there was right spasm, guarding, pain with motion, and tenderness, none of which was severe enough to be responsible for abnormal gait or spinal contour. There was 5/5 bilateral lower extremity strength. Muscle tone was normal without atrophy. Lower extremity sensation and reflexes were normal. There was flexion to 70 degrees, extension to 20 degrees, left lateral flexion to 30 degrees, left rotation to 30 degrees, right lateral flexion to 20 degrees, and right lateral rotation to 20 degrees. There was objective evidence of pain on motion and upon repetitive motion. There were, however no additional limitations after three repetitions of range of motion. Straight leg raise tests were negative. An x-ray showed degenerative changes. An MRI noted stable non-neurocompressive disc bulges. In a January 2009 submission, the Veteran reported that his low back pain made it difficult to bend, stand up, and reach. These limitations affected his employment. He reported that leg pain caused weakness and more frequent give-way. He could no longer do some things due to pain and it affected his work habits and married life. In a February 2009 statement, the Veteran asserted that his pain was 9-10/10. He had to quit his job because he could not lift 70 pounds or bend too much. In a May 2009 VA medical record, the Veteran reported chronic low back pain that was constant aching and was seven out of ten. The pain was aggravated by bending and lifting and was alleviated by Tylenol #3. There was stiffness and paresthesia in the left lower extremity. He denied lower extremity weakness and bowel or bladder dysfunction. Examination showed no spinal tenderness, negative straight leg raises, and no gross motor or sensory deficit. In a September 2009 VA record, the Veteran reported chronic low back pain that radiated. His pain was currently 5-6/10 and was sharp and burning. At best, his pain was 5/10. At its worst, his pain was 6-7/10, which occurred with increased activity. He reported the use of a back support and a transcutaneous electrical nerve stimulation (TENS) unit. In an October 2009 VA record, the Veteran reported low back pain with radiation down the right lower extremity. He rated his pain at 5-6/10. At best his pain was 5/10 and at worst, it was 6-7/10, with increased activity. In a December 2009 VA medical record, the Veteran reported low back pain that was constant and aching, with sharp intermittent pain. The pain was aggravated by bending and lifting and alleviated by Tylenol #3. He reported stiffness, but denied paresthesia, bowel and bladder dysfunction. There were no gross motor or sensory deficits. In a May 2010 VA record, the Veteran reported low back pain that was constant, aching, and did not radiate. The pain was 6/10, was aggravated by bending and lifting, and was alleviated by Tylenol #3. The Veteran reported stiffness, but denied paresthesia, bowel and bladder dysfunction, and lower extremity weakness. Examination indicated tenderness, but no gross motor or sensory deficits. In an August 2010 VA record, the Veteran reported minimal back pain. The pain that morning had been 3-4/10. There was 5/5 motor strength of the lower extremities and negative straight leg raises. In another August 2010 record, the Veteran reported pain that radiated down his left knee. The back pain was 5-6/10 and was constant. Pain was worse with forward flexion and prolonged sitting and was better with the use of a reclining chair, a TENS unit, and Tylenol #3. He was working stocking frozen foods, which did not exacerbate the pain. There was mild back tenderness. Forward flexion was to 65 degrees. There was normal muscle tone, 5/5 motor strength, intact sensation, and negative straight leg raise test. In a December 2010 VA medical record, the Veteran reported back pain that was currently 7.5/10. He was not taking any medication for the pain. There was 5/5 motor strength of the lower extremities. Straight leg raises were negative. In a February 2011 VA record, the Veteran reported pain of 8/10. He was wearing lumbar support. The pain was persistent and relieved with rest. The burning sensation did not radiate. Upon examination, there was 5/5 motor strength and negative straight leg raises. The provider noted that he had encouraged the Veteran to seek other employment. The Veteran's current work was stocking a store, lifting, pushing, and pulling pallets of 50 or more pounds. At the May 2011 Board hearing, the Veteran reported use of a TENS unit, a brace, and a cane to help alleviate his pain. He had pain with driving and had missed work due to his lumbar condition. He was on light duty at work either as a greeter or doing inventory. His normal responsibility was in stock, but he could not pull pallets or lift boxes. He reported that he was in constant pain. The Veteran stated that he was in constant pain due to his radiculopathy and that physical therapy had not worked. The Veteran's wife testified that they used to go dancing and to the movies, which they could no longer do. He was always in pain and his right leg gave out on him. He could not sit or stand very long. The Veteran stated he could not wash his car, had difficulty driving, could only walk short distance, and that he had to be accommodated at work. In a June 2011 VA medical record, the Veteran reported low back pain that was constant and aching. The pain was 8/10 and was aggravated by prolonged standing and alleviated with prescription medications. The Veteran also reported stiffness. The Veteran denied lower extremity weakness, bowel and bladder dysfunction, and paresthesia. In a July 2011 VA record, the Veteran reported low back stiffness and pain that was constant, aching, and 4/10. The Veteran denied lower extremity paresthesia, weakness, and bowel and bladder dysfunction. There was tenderness and a decreased range of motion, but negative straight leg raise tests and no gross motor or sensory deficits. In a November 2011 VA record, the Veteran reported low back pain that was intermittent and aching. It was aggravated by heavy lifting and bending and was alleviated by Tramadol. The Veteran also reported stiffness, but denied paresthesia, lower extremity weakness, and bowel and bladder dysfunction. There was paralumbar tenderness, but no spinal tenderness, or gross motor or sensory deficits. There were negative straight leg raise tests. In a November 2011 VA record, the practitioner stated that the Veteran was able to perform his job-related duties as a security officer. A January 2012 VA spine examination was conducted upon review of the claims file. The Veteran reported constant low back pain aggravated by work at Wal Mart unloading merchandise from trucks. The pain was described as 9/10 and was aggravated by prolonged standing, lifting, and bending. The Veteran took Tramadol and Tylenol, and used a TENS unit. The Veteran reported that flare-ups did not impact the function of his spine and did not use assistive devices. There was forward flexion to 70 degrees, extension to 20 degrees, and bilateral lateral flexion to 20 degrees, all with pain beginning at the endpoint. There was bilateral lateral rotation to 30 degrees without objective evidence of pain. Upon repetition, flexion, extension, and lateral flexion remained the same, but lateral rotation decreased to 25 degrees. The examiner thus found additional limitation of range of motion upon repetitive testing. The examiner also found additional functional loss or impairment to include less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. There was localized tenderness or pain to palpation in the right lumbar area, but no guarding or muscle spasm. There was 5/5 bilateral lower extremity muscle strength. There was no muscle atrophy. There were 1+ reflexes of the bilateral knees and ankles. There was normal sensory examination of the bilateral lower extremities, but a positive straight leg raise test on the right. The examiner found moderate right radiculopathy with right lower extremity moderate pain, mild paresthesia, and mild numbness. There were no left lower extremity symptoms. The examiner found there were no other neurologic abnormalities, including intervertebral disc syndrome. The examiner found there was lumbar spine degenerative disease, but no vertebral fracture. The examiner noted that the condition would impact any physical employment. A January 2012 VA peripheral nerves examination was conducted. The examiner diagnosed right lumbar radiculopathy. The Veteran reported recurrent pain radiation to the right leg above the knee area with numbness and tingling. He took Tylenol, codeine, and Tramadol for the pain. The symptoms were improved by the use of a TENS unit. There was right lower extremity moderate pain, moderate intermittent pain, mild paresthesia and/or dysthesia, and mild numbness. There were no left lower extremity symptoms. Muscle strength of the bilateral lower extremities was 5/5, there was no muscle atrophy, and there were 1+ reflexes of the bilateral knees and ankles. Sensory examination was normal. The Veteran's gait was abnormal because it was antalgic due to his lower back condition. The examiner found moderate, incomplete paralysis of the right anterior crural nerve. The left anterior crural nerve was normal. The condition was found to affect physical employment. In an August 2012 statement, the Veteran reported pain and was unable to do things he used to do. His right leg gave out on him and sometimes he had to drag the right leg. He was working because he needed to support his family. It was hard for him to stand up straight or have his back against anything due to the pain and stiffness. Lumbar strain evaluation The Veteran's lumbar strain is currently evaluated as 10 percent disabling, which contemplates 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. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent evaluation 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 evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Under the rating criteria for intervertebral disc syndrome, a 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 week but less than 4 weeks during the past 12 months, a 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 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, General Rating Formula, Note (1). Also under the General Rating Formula for spine disabilities, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Board finds that a 20 percent evaluation, but no more, is warranted. The evidence of record indicates forward flexion to 65 and 70 degrees and a combined range of lumbar spine motion of 180 to 190 degrees. These findings do not warrant a 20 percent evaluation. Additionally, the objective evidence of record consistently indicated normal gait and no abnormal spine curvatures, until the 2012 examination, where the examiner found an antalgic gait. The Veteran has intermittently reported spasms, including at the 2007 VA examination and in a December 2008 VA record. At the 2007 examination, he reported flare-ups that required he sit in a reclining chair and take medications. The examiner noted significant effects on his occupation and moderate effects on chores, shopping, and exercise. At the 2009 VA examination, the Veteran reported flare-ups that were only alleviated by rest. The examiner found right lumbar spine spasms and guarding, although it was noted that neither caused abnormal gait or spinal contour. At the 2012 examination, there were no spasms or guarding. The examiner, however, found that repetitive motion caused additional functional loss or impairment to include disturbance of locomotion and interference with weight-bearing. Taking the Veteran's competent reports of spasms, flare-ups, and other functional limitations, with the objective intermittent findings of effects on activities of daily living, spasms, and an antalgic gait, and resolving all evidence in favor of the Veteran, the evidence of record shows additional functional loss upon use to include spasms and an abnormal gait. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59 (2012); 38 C.F.R. § 4.71a, General Rating Formula; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Accordingly, a 20 percent evaluation is warranted. A 40 percent evaluation, however, is not for assignment as forward flexion was never less than 65 degrees, even when considering additional functional loss. An increased evaluation under other potentially applicable diagnostic codes has been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). But an evaluation in excess of 20 percent under the diagnostic code for intervertebral disc syndrome is not warranted because the record did not demonstrate any physician-ordered bed rest. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Additionally, an evaluation in excess of 20 percent is not provided for degenerative or traumatic arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Accordingly, an increased evaluation is not warranted under alternative diagnostic codes. Consideration has also been provided regarding whether a separate rating is required for any neurological component of the Veteran's lumbar spine disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5235, Note (1). Initially, the Board notes that the Veteran has a separate evaluation for his right lumbar spine radiculopathy for the entire period on appeal. Thus, only neurological symptoms of the left lower extremity and any other neurological symptoms are considered herein. The Veteran has consistently denied bowel and bladder dysfunction; a separate evaluation for these conditions thus is not warranted. In VA medical records throughout the appeal period, the Veteran has intermittently reported paresthesia and numbness. But in VA medical records dated in January 2008, April 2008, July 2008, August 2008, May 2009, December 2009, May 2010, August 2010, July 2011, and November 2011, there were no motor or sensory deficits and negative left lower extremity straight leg raise tests. At the 2007 VA examination, the Veteran denied paresthesia and numbness. Examination indicated normal sensory and reflexes and 5/5 muscle strength. At the 2009 VA examination, the Veteran reported paresthesia and numbness. Examination indicated 5/5 muscle strength and normal sensation and reflexes. At the 2012 VA examination, there were bilateral reduced reflexes, but normal sensation, and a negative straight leg raise test on the left. The examiner found normal left lower extremity nerves and no left lower extremity symptoms. Thus, the evidence of record indicates that an additional separate evaluation for neurological symptoms of a lumbar spine disability is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5235, Note (1). Right lower extremity radiculopathy evaluation The Veteran's right lower extremity is evaluated as 20 percent disabling, which contemplates moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. For neuritis, neuralgia, and paralysis of the sciatic nerve, moderately severe incomplete paralysis warrants a 40 percent rating, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating, and a 80 percent rating is warranted for complete paralysis of the sciatic nerve, with foot dangle and drop, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. When rating peripheral nerve injuries and their residuals and 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. §§ 4.120, 4.123. The words slight, mild, moderate, and severe are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as moderate and severe by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A November 2007 VA spine examination was conducted upon review of the claims file. The Veteran reported occasional radiation of pain to the right lower extremity. He reported pain of the right leg that occurred approximately three times per month when back pain was severe. The pain was sharp and lasted for hours. Pain was improved with Tylenol. The Veteran denied numbness, paresthesia, leg or foot weakness, falls, and unsteadiness. Upon examination, there was 5/5 strength of hip flexion, hip extension, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension. Muscle tone was normal and there was no muscle atrophy. There were normal sensory and reflex examinations. In VA medical records dated in January 2008, April 2008, July 2008, August 2008, December 2008, the Veteran reported low back pain that radiated to the right lower extremity. There were intermittent reports of paresthesia, but the Veteran consistently denied right lower extremity weakness. Examination indicated negative straight leg raise test and no motor or sensory deficits. At the January 2009 VA spine examination, the Veteran reported recurrent numbness and tingling of the right leg. The Veteran denied leg and foot weakness, falls, and unsteadiness. He reported numbness, paresthesia, and weakness. The pain radiated to the right leg and felt electrical. Upon examination, there was 5/5 strength of hip flexion, hip extension, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension. Muscle tone was normal without atrophy. Lower extremity sensation and reflexes were normal. In a January 2009 submission, the Veteran reported that his right leg pain caused weakness and more frequent give-way. He could no longer do some things due to pain and it affected his work habits and married life. In a February 2009 statement, the Veteran asserted that he has pain of nine to ten. In a May 2009 VA medical record, the Veteran denied lower extremity weakness. Examination showed negative straight leg raise test and no gross motor or sensory deficits. In a September 2009 VA record, the Veteran reported chronic low back pain that radiated. In an October 2009 VA record, the Veteran reported low back pain with radiation down the right lower extremity. In a December 2009 VA record, the Veteran denied paresthesia. There were no gross motor or sensory deficits. In a May 2010 VA record, the Veteran denied paresthesia and lower extremity weakness. Examination indicated no gross motor or sensory deficits. In an August 2010 VA record, there was 5/5 motor strength and a negative straight leg raise test. In another August 2010 record, there was normal muscle tone, 5/5 motor strength, intact sensation, and a negative straight leg raise test. In a December 2010 VA record, there was 5/5 motor strength and negative straight leg raise test. In a February 2011 VA record, there was 5/5 motor strength and a negative straight leg raise test. At the May 2011 Board hearing, the Veteran stated that he was in constant pain due to his radiculopathy and that physical therapy had not worked. The Veteran's wife testified that they used to go dancing and to the movies, which they could no longer do. He was always in pain and his right leg gave out on him. He could not sit or stand very long. The Veteran stated he could not wash his car, had difficulty driving, could only walk short distance, and that he had to be accommodated at work. In VA medical records dated in June 2011, July 2011, and November 2011, the Veteran denied lower extremity weakness and paresthesia. There was negative straight leg raise test and no gross motor or sensory deficits. At the January 2012 VA spine examination, there was 5/5 lower extremity muscle strength and no muscle atrophy. There were 1+ reflexes of the knee and ankle. There was normal sensory examination, but a positive straight leg raise test on the right. The examiner found right lower extremity moderate constant pain, moderate intermittent pain, mild paresthesia, and mild numbness. The nerve roots involved were the right L2/L3/L4. The right radiculopathy was moderate. A January 2012 VA peripheral nerves examination was conducted. The examiner diagnosed right lumbar radiculopathy. The Veteran reported recurrent pain radiation to the right leg above the knee area with numbness and tingling. He took Tylenol, codeine, and Tramadol for the pain. The symptoms were improved by the use of a TENS unit. There was right lower extremity moderate pain, moderate intermittent pain, mild paresthesia and/or dysthesia, and mild numbness. Muscle strength of the lower extremity was 5/5, there was no muscle atrophy, and there were 1+ reflexes of the bilateral knees and ankles. Sensory examination was normal. The examiner found moderate, incomplete paralysis of the right anterior crural nerve. In an August 2012 statement, the Veteran stated that he had pain and was unable to do things he used to do. His right leg gave out on him and he had to sometimes drag his right leg. He was working because he needed to support his family. It was hard for him to stand up straight or have his back against anything due to the pain and stiffness. The Board finds that an evaluation in excess of 20 percent is not warranted as the radiculopathy is properly evaluated as moderate. The Veteran has reported paresthesia, numbness, and radiating pain. He reported weakness in January 2009 statement, but denied leg weakness at the VA examinations in 2007 and 2009 and in VA records dated in April 2008, July 2008, August 2008, December 2008, May 2009, May 2010, June 2011, and November 2011. The objective evidence of record indicates normal sensation and 5/5 muscle strength throughout the appeal period. Although the 2012 VA examination indicated diminished reflexes, there was 5/5 muscle strength, normal muscle tone, and no atrophy. The Veteran's gait was antalgic, but that is the basis of the 20 percent evaluation assigned for lumbar strain and is not considered herein. See 38 C.F.R. § 4.14 (2012) (noting that the evaluation of the same disability or the same manifestations of a disability under various diagnoses constitutes prohibited pyramiding); but see Esteban v. Brown, 6 Vet. App. 259 (1994) (finding that when a veteran has separate and distinct manifestations from the same injury he should be compensated under different diagnostic codes). The 2012 VA examiner noted moderate radiculopathy with moderate pain, but mild numbness and paresthesia. Although the examiner's statement does not mandate a finding of moderate incomplete paralysis, it is evidence in support of such a finding. Accordingly, the Board finds that the evidence of record more closely indicates paralysis that is moderate and not moderately severe. An increased evaluation is thus not warranted. After review of the evidence, the evidence of record does not warrant a rating in excess of those assigned at any time during the period pertinent to this appeal. 38 U.S.C.A. § 5110. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Extraschedular evaluation Consideration has also been given regarding whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this regard, the schedular evaluations in this case are not inadequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected lumbar strain and right radiculopathy but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disabilities, as the criteria assess limitation of range of motion, additional functional loss, and neurological manifestations. Accordingly, this issue need not be referred for consideration of extraschedular ratings. ORDER An evaluation of 20 percent, but no more, is warranted for service-connected lumbar strain, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased evaluation for service-connected right lumbar radiculopathy is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs