Citation Nr: 1300852 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-07 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to higher initial disability ratings for service-connected sacralization and spondylosis at L5, rated 40 percent prior to June 29, 2006, 100 percent from June 26 through September 30, 1996, and 40 percent on October 1, 2006. 2. Entitlement to an initial disability rating higher than 10 percent for right lower extremity radiculopathy. 3. Entitlement to an initial disability rating higher than 10 percent for left lower extremity radiculopathy. 4. Entitlement to a total rating based on individual unemployability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from February 4 to March 18, 1974. This matter comes before the Board of Veterans' Appeals (Board) from October 2007 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The October 2007 rating decision granted service connection for sacralization and spondylosis of L5 and assigned an initial 40 percent rating effective from May 3, 2002. The Veteran appealed for a higher initial rating and an earlier effective date for service connection and initial rating. The September 2008 RO rating decision denied entitlement to a total disability rating based on individual unemployability (hereinafter: TDIU). In January 2009, the RO assigned an earlier effective date of November 27, 2001, for service connection for sacralization and spondylosis of L5. The initial 40 percent rating was made effective on that date also. The RO also granted a temporary total rating for that disability effective June 29 through September 30, 2006, and a 40 percent schedular rating thereafter. The RO also granted separate service connection and a 10 percent schedular rating effective February 11, 2005, for right lower extremity radiculopathy. The RO also granted separate service connection and a 10 percent schedular rating effective May 8, 2006, for left lower extremity radiculopathy. In August 2010, the Board granted an earlier effective date of January 20, 1976, for service connection for sacralization and spondylosis of L5. The Board remanded the issues of an initial rating greater than 40 percent for sacralization and spondylosis of L5 and the issue of entitlement to TDIU. In a decision issued in September 2010, the RO assigned an initial 40 percent schedular rating effective January 20, 1976, for sacralization and spondylosis of L5. In November 2012, the Veteran revoked a power of attorney formerly granted in favor of The American Legion. See 38 C.F.R. § 14.631 (f)(1). He is now unrepresented in this appeal. FINDINGS OF FACT 1. For the period prior to November 14, 1988, the service-connected sacralization and spondylosis at L5 was manifested by severe limitation of motion of the lumbar spine. 2. For the period beginning November 14, 1988, through June 28, 2006, the service-connected sacralization and spondylosis at L5 was manifested by constant low back pain and radiating lower extremity pains compatible with sciatic neuropathy, with little intermittent relief. 3. For the period June 29 through September 30, 2006, a temporary total rating is in effect for the lumbar spine. 4. For the period beginning October 1, 2006, the service-connected sacralization and spondylosis at L5 was manifested by constant low back pain and radiating lower extremity pains compatible with sciatic neuropathy, with little intermittent relief. 5. The assignment of a 60 percent schedular rating for intervertebral disc syndrome under Diagnostic Code 5293 is more favorable to the Veteran than a 40 percent rating for the lumbar spine combined with two 10 percent ratings for bilateral lower extremity radiculopathy, including the bilateral factor. 6. A single service-connected disability has been rated 60 percent or more since November 14, 1988. 7. The Veteran stopped working due to his service-connected low back disability on January 10, 1991. 8. Competent evidence attributing unemployability to the service-connected low back disability has been submitted. CONCLUSIONS OF LAW 1. For the period prior to November 14, 1988, the criteria for an initial rating greater than 40 percent for service-connected sacralization and spondylosis at L5 are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 5295 (effective prior to September 23, 2002). 2. From November 14, 1988 through June 28, 2006, the criteria for a 60 percent schedular rating for service-connected sacralization and spondylosis at L5 are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). 3. From October 1, 2006, the criteria for a 60 percent schedular rating for service-connected sacralization and spondylosis at L5 are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). 4. The criteria for TDIU are met as of January 10, 1991. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the claim for a higher initial rating for a low back disability, the notice of disagreement (hereinafter: NOD) as to the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a statement of the case (hereinafter: SOC). The SOC provided the claimant with the relevant rating criteria for disabilities of the spine, as listed at various diagnostic codes and, importantly, the criteria that existed at the earlier portion of the rating period. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings for a low back disability. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In this case, any timing error with respect to the notice requirements has been remedied by the Board's remand followed by issuance of a supplemental statement of the case. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA clinical records, private clinical records, and SSA records. The claimant was provided an opportunity to set forth his contentions during a videoconference hearing before the undersigned Veterans Law Judge. The claimant was afforded VA medical examinations. The claimant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court stressed that the difference between an original rating and an increased rating is important with respect to the evidence that may be used to determine whether the original rating was erroneous. Id. at 126. In its subsequent analysis of an initial rating, the Court considered medical and lay evidence of record at the time of the original service connection application and additional evidence submitted since then. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings could be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Rating the Lumbar Spine prior to June 29, 2006 The lumbar spine has been rated 40 percent for that portion of the appeal period prior to June 29, 2006. This rating period begins on January 20, 1976, according to an August 2010 Board decision, and continues through June 28, 2006. In this decision, this rating period will henceforth be referred to as the "earlier rating period." The significance of this earlier rating period, aside from spanning more than three decades, is that the rating criteria for the spine changed significantly during this period. The rating criteria for the lumbar spine that were in effect in January 1976 remained in effect, without change, until September 23, 2002. See 38 C.F.R. § 4.71a, Diagnostic Codes, 5292, 5293, and 5295 (1975). The September 23, 2002, revisions remained in effect until September 26, 2003, when the current revisions became effective. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the Veteran applies, absent congressional or Secretarial intent to the contrary. VA's General Counsel (GC) held that where a law or regulation changes during the pendency of a claim for an increased rating, the Board should first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. 5110(g) (West 2002) can be no earlier than the effective date of that change. VA must apply the earlier version of the regulation for the period prior to the effective date of the change and may continue to apply it after the change, if favorable to the veteran. VAOPGCPREC 3-2000. A September 2010 RO rating decisions reflect that an initial 40 percent rating was assigned for the lumbar spine disability under Diagnostic Code 5239 and the effective date of that rating is January 20, 1976. Because Diagnostic Code 5239 was created by a revision that became effective on September 26, 2003, Diagnostic Code 5239 cannot be used prior to that date, as it did not yet exist. The former rating criteria and diagnostic codes must be used for rating the spine prior RO September 26, 2003. As mentioned above, the former rating criteria may continue to be used for any portion of the appeal period after September 26, 2003, if the former criteria remain advantageous to the Veteran. Under the former Diagnostic Code 5292, evaluations from 10 to 40 percent are available for limitation of motion of the lumbar spine. Slight limitation of motion of the lumbar spine warrants a 10 percent evaluation. Moderate limitation of motion of the lumbar spine warrants a 20 percent evaluation. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2001 and earlier). Under the former Diagnostic Code 5295, lumbosacral strain, with slight, subjective symptoms only, is rated zero percent disabling. With characteristic pain on motion, the rating is 10 percent. With muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in standing position, the rating is 20 percent. A 40 percent rating is warranted for severe lumbosacral strain manifested by listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation in forward bending in standing position, loss of lateral motion with osteoarthritic changes, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2001 and earlier). Because the RO has already assigned a 40 percent rating for the lumbar spine for the earlier appeal period, and because 40 percent is the maximum rating offered under either Diagnostic Code 5292 or 5295, further analysis for limitation of motion of the lumbar spine or for lumbosacral strain is not necessary. Former Diagnostic Code 5293, however, offers a 60 percent rating for pronounced intervertebral disc syndrome. Thus, the next pertinent question is whether the criteria of a 60 percent rating under Diagnostic Code 5293 are more nearly approximated at any time prior to June 29, 2006. Under Diagnostic Code 5293, a 60 percent evaluation is warranted for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 23, 2002). The Veteran's Service Treatment Reports (STRs) reflect a normal spine upon entry into active military service on February 4, 1974. He reported low back pains on February 9 and again on February 11. On February 12, he reported low back pain without radiation. X-rays taken on February 12 showed spondylolysis at L4 and probable spondylolysis at L5 (spondylolysis is dissolution of a vertebra, Dorland's Illustrated Medical Dictionary 1563 (28th ed. 1994)). The STRS further reflect that on March 7, 1974, the Veteran complained of three days of back pain with no radiation and no genitourinary dysfunction. Range of motion was within normal limits and ankle jerks were normal and symmetrical. A straight leg raising test was positive because of hamstring tightness. The Veteran was discharged from active service on March 18, 1974. Although his service personnel records reflect that he had complaints of back pains, his discharge was recommended because of motivational problems. In January 1976, he applied to VA for service connection for back problems. Medical evidence received at the RO since then will be discussed in the order in which it was received at the RO. Pertinent medical reports dated in 2001 and 2002 were received from Cedar Valley Medical Specialists, P.C. A February 2001 report notes back problems and mentions that the Veteran had low back syndrome and was treated by that physician as early as 1997. A June 2002 report notes a long history of severe back pain and spondylolysis at L4-5 and spondylolisthesis at L5. Spine surgery was considered. [Spondylolisthesis is forward displacement of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or the fourth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis. Dorland's Illustrated Medical Dictionary 1563 (28th ed. 1994)]. In March 2004, the Veteran testified before an RO hearing officer that he had back spasms intermittently after active service. He testified that he worked for the Viking Pump company from 1978 to 1990, but had to leave because of back pains. In September 2004, the Veteran testified before a Veteran's law judge that when he was discharged from the Army, he was not told of the medical evidence of his back problems. He recalled that from 1974 to 1990, while working for Viking Pump, he did not have any other back injury. SSA records that are of great significance to the earlier appeal period were added to the claims files with no date of receipt. They appear to have been received by VA in or around December 2006. These reports reflect that in April 1992, the Veteran applied for SSA benefits. He reported that he had back and knee problems that forced him to quit work on January 10, 1991. SSA-supplied private medical reports reflect that the earliest mention of back treatment is a December 1985 report of midline backaches. The report notes a surprisingly large spondylotic defect at L4. An earlier, July 1985, report reflects a neck and shoulder injury due to an auto accident, with no mention of low back pain. A January 1991 report notes a herniated disc. A May 1991 report describes the back problem as "quite severe." A June 1991 report notes loss of 20-degrees of forward motion, loss of 10-degrees of extension, loss of 10-degrees of side bending to the right, and loss of 10-degrees of rotation to the left. An August 1991 SSA-supplied report reveals the date of onset of lower extremity pains. That report mentions that on November 14, 1988, the Veteran complained of pain in his low back and left thigh and calf. According to him, he had never had anything like that before. Although he had back pain prior, he did not have pain in the left thigh and calf previously. According to the Veteran, he had fallen at work on October 18, 1988, and had injured his thigh and shin, but did not feel any back pain immediately. Later, the current pains began to work upward in his back. Private physician, A. Delbridge, M.D., measured 70 degrees of spinal flexion, 20 degrees of extension, 20 degrees of right lateral flexion, full left lateral flexion, 20 degrees of left rotation, and full right rotation. Dr. Delbridge's August 1991 report contains a factual finding that demonstrates a distinct time period in which the service-connected disability exhibited symptoms meeting the criteria for a different rating. The assignment of a staged rating will therefore be considered from November 14, 1988. Hart, 21 Vet. App. at 510. In November 1992, Dr. Delbridge reported spinal forward flexion of 65 to 70 degrees, little or no extension, limited side bending and rotation, and pain radiating down both legs with tingling in the toes. The doctor concluded, "He really is not any different than he was before." In November 1997, there were 25 degrees of extension and 20 degrees of right and left lateral flexion. Flexion and rotation were not reported. X-rays showed grade-I anterolisthesis of L4 on L5 with spondylolysis and mild degenerative changes at L4. The diagnosis was degenerative osteoarthritis of the lumbosacral spine. A May 2006 report from C. Spence, M.D., reflects diagnoses of L4-5 and L5-S1 spondylolisthesis; bilateral L5-S1 radiculopathies; and, lumbago (pain in the lumbar region, Dorland's Illustrated Medical Dictionary 961 (28th ed. 1994)). The physician reported that lumbar spine range of motion was full, but that multi-segmental spondylolisthesis had caused a motor deficit and significant pain syndrome as a result. Comparing the manifestations reported during the earlier appeal period to the rating criteria for intervertebral disc syndrome, there is evidence of constant low back pain with little intermittent relief. Radiating bilateral lower extremity pain and tingling in the toes, compatible with sciatic neuropathy, were reported. The only symptom missing for a 60 percent intervertebral disc syndrome rating during the earlier appeal period is absent ankle jerks. Missing ankle jerks alone is not fatal to the claim. The SSA-supplied records reflect that the date of onset of lower extremity pains was November 14, 1988. The Board will therefore use that date as the earliest date that the criteria for pronounced intervertebral disc syndrome. Because the symptoms shown more nearly approximate the criteria for a 60 percent rating, the Board will grant a 60 percent rating under Diagnostic Code 5293 beginning on November 14, 1988. The evidence reflects that prior to November 14, 1988, there was no radiculopathy. Therefore, prior to November 14, 1988, the criteria for a 40 percent rating for severe limitation of motion are more nearly approximated under Diagnostic Code 5292, and, for that earliest portion of the appeal period, the evidence preponderates against an initial rating higher than the 40 percent already assigned by the RO. Next for consideration during the earlier appeal period are the significant changes to the rating schedule that occurred. On September 23, 2002, the rating criteria for intervertebral disc syndrome changed. The maximum schedular rating available remained at 60 percent; however, it became based on duration of incapacitating episodes (defined as periods of doctor prescribed bed rest) over the past 12 months, rather than on pronounced intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). The rating schedule that became effective on September 23, 2002, offers a new maximum rating of 60 percent for incapacitating episodes of intervertebral disc syndrome. This 60 percent rating is warranted only where incapacitating episodes have a total duration of at least six weeks during the past 12 months. Comparing these criteria to the manifestations, incapacitating episodes of intervertebral disc syndrome are not shown to be this severe during from September 23, 2002. Moreover, because a 60 percent rating for intervertebral disc syndrome is assignable under the prior provisions of Diagnostic Code 5293, there is no need for further consideration of a rating for incapacitating episodes of intervertebral disc syndrome. That is, the September 23, 2002, revision would not result in a greater benefit than the 60 percent already granted under the prior version of Diagnostic Code 5293. Another new provision that became effective on September 23, 2002, provides that orthopedic and neurologic manifestations may be separately evaluated under appropriate codes and those evaluations may be used if they result in a greater benefit. See 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note 2 (effective September 23, 2002). Thus, the Board must consider whether the new method set forth at Note 2 results in a schedular rating greater than 60 percent. Above, the Board determined that the lumbar spine could be rated no higher than 60 percent for intervertebral disc syndrome from November 14, 1988, onward. Therefore, the use of Note 2 could be advantageous to the Veteran only if it results in an overall rating greater than 60 percent. The next question therefore is whether separate neurological ratings for each lower extremity, when combined with a maximum 40 percent rating for limitation of motion of the lumbar spine under Diagnostic Code 5292, and combined with the bilateral factor, are advantageous to the Veteran. These separate neurological ratings are explained below. Neuritis, cranial or peripheral, 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. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2012). Neuralgia, cranial or peripheral, is usually characterized by a dull and intermittent pain, of typical distribution, so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2012). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral combine with application of the bilateral factor. Diagnostic Code 8520 is analogous to left and right lower extremity radiculopathy because the anatomical area of the neurologic deficits more nearly approximates the level of disability produced by sciatica when considering functional impairment, anatomical location, and symptomatology. 38 C.F.R. § 4.20. Keeping in mind that wholly sensory manifestations warrant a rating for mild, or at most, a moderate disability, the involvement of radiating pains to the lower extremities and toe tingling are sensory only. Therefore, this bilateral radiculopathy is no worse than mild. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires moderately severe incomplete paralysis. A 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124(a), Code 8520 (2012). Because no motor involvement is shown, the disability more nearly approximates mild sciatica during the earlier appeal period and does not warrant a schedular rating greater than 10 percent for either lower extremity. Thus, using the alternate method of rating the lumbar spine disability, that is, combining limitation of motion of the lumbar spine with separate ratings for bilateral lower extremity radiculopathy does not result in a rating greater than the 60 percent rating assignable for intervertebral disc syndrome. Next, we turn to the revisions to the rating schedule that became effective on September 26, 2003. On September 26, 2003, the diagnostic code numbers changed and these code numbers continue to the present time. Spine disabilities are now rated under the General Rating Formula for Diseases and Injuries of the Spine set forth as follows: 5235 Vertebral fracture or dislocation 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003) 5243 Intervertebral disc syndrome Under this revised schedule, the criteria for a rating based on duration of incapacitating episodes over the past 12 months remain the same. Also unchanged is the procedure for combining, under 38 C.F.R. § 4.25, separate evaluations of the chronic orthopedic and neurologic manifestations; however, the following new rating criteria were added: (For diagnostic codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine.......................................100 Unfavorable ankylosis of the entire thoracolumbar spine...........................................................................................50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine............................................40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.. 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.........................................................................10 Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. These changes have recoded intervertebral disc syndrome from old Diagnostic Code 5293 to new Diagnostic Code 5243 and added a new formula for rating limitation of motion of the thoracolumbar spine that was not available prior to September 26, 2003. Keeping in mind that a 60 percent rating is assignable for this period under prior provisions, this later revision of rating schedule requires that unfavorable ankylosis of the thoracolumbar spine be shown in combination with separate 10 percent ratings for bilateral lower extremity radiculopathy in order to be more advantageous to the Veteran than the 60 percent schedular rating for intervertebral disc syndrome. Thus, from September 26, 2003, and for the remainder of the earlier appeal period, the most recent rating criteria do not help the Veteran obtain a schedular rating greater than 60 percent. After consideration of all the evidence of record, including the testimony, the Board finds that for the earlier appeal period, a 60 percent rating should be granted under Diagnostic Code 5293 beginning on November 14, 1988. Prior to that time, the appeal for an initial rating greater than the 40 percent rating already assigned by the RO must be denied as the evidence is against such a rating. Rating the Lumbar Spine from June 29 through September 30, 2006 During the period from June 29 through September 30, 2006, the RO has already assigned a temporary total rating. Because the maximum benefit has been assigned during that period, the Board need not review that rating. Rating the Lumbar Spine from October 1, 2006 Additional pertinent medical evidence has been received during this later rating period. A January 2007 VA orthopedic compensation examination report reflects that there was 55 degrees of flexion, only 5 degrees of extension, 20 degrees of lateral bending in each direction, and 50 degrees of rotation in each direction. No loss of strength or sensory deficit in the lower extremities was detected. The impression was current severe debility from lumbosacral spine surgery, long standing spondylolisthesis, and radiculopathy. A June 2008 VA general medical compensation examination report reflects that this is not an examination for intervertebral disc syndrome. During the examination, the Veteran reported a constant sharp stabbing pain radiating down the left leg and into the feet. The examiner noted a history of left leg paresthesia and numbness. A surgery scar over the lumbar spine was well healed. The thoracolumbar spine showed 40 degrees of flexion with pain beginning at 15 degrees. There was 10 degrees of extension with pain beginning at 10 degrees. There was 30 degrees of lateral bending in each direction without pain. There was 30 degrees of rotation in each direction without pain. There was no additional functional impairment due to pain, fatigue, weakness, or lack of endurance. An October 2008 VA out-patient treatment report notes a complaint of severe radicular pains. In April 2009, A. Afzal, M.D., reported that the Veteran has a low back lumbar failed back syndrome and neuropathic pain. In September 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge that he stopped working in January 1990 and missed much work due to back pain prior to then. He testified that his doctor occasionally told him to get off of his feet, if possible. He testified that he often has cramping-like pains in his legs. He testified that he is not able to walk three or four blocks or work for eight hours, even if sitting. He testified that in the 1980s he was a machine operator. A November 2010 VA compensation examination report reflects a complaint of pain or tingling in the legs. The Veteran reported weekly severe flare-ups of pain. He reported numbness and paresthesia, but no weakness. The examiner indicated that these symptoms are related to his service-connected low back disability, but later concluded that there was no sign or symptom of radiculopathy. The examiner also found a history of fatigue, limitation of motion, stiffness, weakness, spasm, lumbar spine pain, and bilateral sciatica. There had been one incapacitating episode of thoracolumbar spine pain in the recent year. This episode lasted two to three days. The examiner later concluded, though, that there had been no incapacitating episode of intervertebral disc syndrome. The spine had normal appearance, except for a flattened lumbar lordosis, and the Veteran walked normally. There was 80 degrees of flexion with pain, 25 degrees of extension with pain, and 30 degrees of left and right lateral bending and rotation in each direction with pain. There was no additional functional limitation after three repetitions. X-rays showed mild degenerative disease of the lumbar spine, fusion of L3 through S1 and anterolisthesis of L4 and L5 on L5-S1. Comparing the manifestations shown throughout this later appeal period to the rating criteria for intervertebral disc syndrome, there is evidence of constant low back pain with little intermittent relief. Radiating buttock pain, bilateral lower extremity pain, numbness, and paresthesia, compatible with sciatic neuropathy, are shown. Characteristic pain and muscle spasm are demonstrated. The only symptom missing for a 60 percent intervertebral disc syndrome rating is absent ankle jerks. The manifestations more nearly approximate the criteria for a 60 percent rating under Diagnostic Code 5293. The final question, however, is whether a combination of ratings for thoracolumbar spine limitation of motion and lower extremity radiculopathy is advantageous to the Veteran. The criteria for a 40 percent schedular rating for limitation of motion of the lumbar spine are met under Diagnostic Code 5292, as the June 2008 examination report reflects that pain began at 15 degrees of forward flexion. Other reports are unclear as to where, within the range of motion, pain first appears. Turning to bilateral lower extremity radiculopathy, the evidence continues to show no more than bilateral lower extremity sensory deficits during this period. Thus, the 60 percent rating for intervertebral disc syndrome continues to be more advantageous than a 40 percent rating for limitation of motion combined with two separate 10 percent ratings for right and left lower extremity radiculopathy, including the bilateral factor. In this case, because the highest schedular rating for intervertebral disc syndrome has been applied, there is no need for further DeLuca consideration. Johnston v. Brown, 10 Vet. App. 80 (1997) (when the maximum schedular rating is in effect for loss of motion of a joint, and the disability does not meet the criteria for a higher evaluation under any other applicable DC (after all other potential DCs have been considered), further consideration of functional loss may not be required). After consideration of all the evidence of record, including the testimony, the Board finds that for the later appeal period, a 60 percent rating should be granted under Diagnostic Code 5293, rather than the single 40 percent rating and two separate 10 percent ratings that were assigned by the RO. TDIU The lumbar spine is now rated 40 percent for that portion of the appeal period prior to November 14, 1988, 60 percent from November 14, 1988, through June 28, 2006, 100 percent from June 29 through September 30, 2006, and 60 percent from October 1, 2006. Concerning the short time period from June 29 through September 30, 2006, which already enjoys a temporary total rating, the Court has held that TDIU must nevertheless be considered. In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court rejected VA's rationale for concluding that a 100 percent schedular rating subsumes a TDIU rating. The Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. VAOGCPREC 6-99, which is contrary to the holding of Bradley, was later withdrawn by GC. See 75 Fed. Reg. 11230 (2010). A TDIU claim "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). 38 C.F.R. § 4.16 (c), (effective prior to November 7, 1996) is not applicable to this claim. Under the earlier criteria, if the only compensable service-connected disability was a mental disorder assigned a 70 percent rating, and such mental disorder precluded the Veteran from securing or following a substantially gainful occupation, a total rating for compensation was not for application and, instead, a 100 percent schedular rating was to be assigned under the appropriate diagnostic code. Age may not be considered as a factor in evaluation service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2012). In the decision above, a 60 percent schedular rating has been granted for a service-connected disability effective from November 14, 1988. Therefore, from November 14, 1988, the Veteran's service-connected intervertebral disc syndrome meets the schedular guidelines provided for consideration of TDIU pursuant to § 4.16 (a). Evidence pertinent to entitlement to TDIU will now be discussed. In March 2004, the Veteran testified before an RO hearing officer that he worked for the Viking Pump company from 1978 to 1990, but had to leave because of back pains. He testified that he now receives SSA disability benefits because of his back and his knees, and possibly diabetes. SSA records reflect that in April 1992, the Veteran applied for SSA benefits. He reported that he had back and knee problems that forced him to quit work on January 10, 1991. A May 1991 report submitted by SSA describes the back problem as "quite severe." A January 2007 VA orthopedic compensation examination report contains an impression of current severe debility from lumbosacral spine surgery, long standing spondylolisthesis, and radiculopathy. The physician added, "He is currently unable to work and is very disabled by his back condition." In April 2008, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. He reported that he last worked on January 1, 1990. He reported that he had four years of high school and no training or further education since then. In September 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge that he stopped working in January 1990 and missed much work due to back pain prior to then. He testified that his doctor occasionally told him to get off of his feet, if possible. He testified that he often has cramping-like pains in his legs. He testified that he is not able to walk three or four blocks or work for eight hours, even if sitting. He testified that in the 1980s he was a machine operator. In August 2010, the Board remanded the case for a medical opinion addressing TDIU. He was re-examined in November 2010. A November 2010 VA compensation examination report reflects a complaint of pains and tingling in the legs. The Veteran reported weekly severe flare-ups of pain. He reported numbness and paresthesia, but no weakness. The examiner indicated that these symptoms are related to his service-connected low back disability. Concerning unemployability, the VA examiner stated that such an opinion would be speculative. But, the examiner then qualified that by stating that this disability should not preclude performing sedentary part-time workloads. The above-mentioned medical evidence and medical opinions are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The lay statements and testimony are competent evidence with regard to descriptions of symptoms of disease or disability or an injury. 38 C.F.R. § 3.159. Moreover, a lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Veteran's claim of unemployability due solely to service-connected disabilities must be given weight because the medical professionals appear to agree. However, although he testified that he stopped work in January 1990, his SSA application, dated in April 1992, reflects that he had reportedly stopped work on January 10, 1991. To the extent that his testimony was offered many years later when his memory might have diminished, the Board will give greater weight to the April 1992 application and find that the Veteran stopped working on January 10, 1991. The evidence discussed above that is favorable to the TDIU claim includes a December 1997 SSA determination to the effect that the Veteran is unemployable due to both service-connected and non-service-connected disabilities. Although favorable, the SSA report cannot be afforded significant weight because it considers a non-service-connected knee disability and obesity as factors contributing to unemployability. The SSA determination notes that a disability from employment began on March 1, 1993, but offers no explanation for that date. A January 2007 VA examination report is favorable and persuasive. It appears to attribute unemployability solely to the service-connected back disability. The November 2010 VA examination report is also favorable and persuasive. Although the November 2010 examiner felt that any opinion would be speculative, the examiner apparently did not find sufficient evidence with which to dissociate unemployability from the service-connected disability. Furthermore, in finding that the back disability would not preclude part-time work, the examiner suggests that full time work, that is, substantially gainful employment is precluded by the service-connected low back disability. No medical evidence has been submitted that tends to controvert these medical opinions. After considering all the evidence of record, including the testimony, the Board finds that the evidence is at least in relative equipoise concerning entitlement to TDIU. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Entitlement to TDIU under 38 C.F.R. § 4.16 (a) from January 10, 1991, will therefore be granted. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. In this case, TDIU has been granted on a schedular basis. Thus, it is conceded that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability and the case presents indicia of marked interference with employment. However, TDIU having been granted above, there is no evidence that an extra-schedular disability rating would be in the interest of justice. The Board is therefore not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). (CONTINUED ON NEXT PAGE) ORDER For the period prior to November 14, 1988, entitlement to an initial disability rating greater than 40 percent for service-connected sacralization and spondylosis at L5 is denied. From November 14, 1988 through June 28, 2006, the criteria for a 60 percent schedular rating for service-connected sacralization and spondylosis at L5 are met, subject to the laws and regulations governing payment of monetary benefits. From October 1, 2006, the criteria for a 60 percent schedular rating for service-connected sacralization and spondylosis at L5 are met, subject to the laws and regulations governing payment of monetary benefits. Separate schedular ratings for lower extremity radiculopathy are denied. The criteria for TDIU under 38 C.F.R. § 4.16 (a) are met as of January 10, 1991, subject to the laws and regulations governing payment of monetary benefits. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs