Citation Nr: 1301088 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 04-42 439 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). 2. Entitlement to an initial rating in excess of 20 percent for the service-connected residuals of an L4 compression fracture. 3. Entitlement to a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from October 1967 to September 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2006 and February 2010 rating decisions of the St. Petersburg RO. In October 2007, the Board remanded the issues of a higher rating for the service-connected low back disability for issuance of a statement of the case (SOC) since a notice of disagreement was received in October 2006 regarding this issue. In August 2009, the higher rating for the low back disability was remanded to obtain records from the Social Security Administration, VA treatment records, and to schedule a VA examination. In February 2012, the both issues were remanded, to schedule the Veteran for a local hearing with a Veterans Law Judge. The hearing was held in June 2012 before the undersigned; a transcript of this hearing is associated with the claims file. During the hearing, the undersigned agreed to hold the case in abeyance for 30 days to allow the Veteran to submit additional evidence. The Veteran raised a claim of service connection for PTSD, but there is medical evidence of record that also contains diagnoses of other psychiatric disorders. The Court in Clemons found that if a Veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the Veteran's claim must be considered. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the present claim is expanded, as shown on the title page, to include consideration of MDD, which is also diagnosed. The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that has not been considered by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for an innocently acquired psychiatric disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the appeal the service-connected low back disability is shown to be manifested by X-ray evidence of minor compression deformity and forward flexion to 65 degrees or better; anklyosis, moderate or severe limitation of motion, loss of lateral bending, listing of the whole spine to the opposite side, marked limitation in forward bending in the standing position, and incapacitating episodes with prescribed bed rest are not shown at any time. 2. Radiculopathy in the lower extremities is shown to be manifested by intermittent numbness, tingling, and weakness that more closely resembles mild incomplete paralysis of the sciatic nerve and is as likely as not associated with the service-connected lumbar disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for residuals of an L4 compression fracture have not been met for any period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5292, 5293, 5295 (2003); 38 C.F.R. § 4.71a Codes 5235-5243 (2012). 2. The criteria for a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve, left lower extremity, associated with the Veteran's service-connected low back disability from May 3, 2003 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.25, 4.26, 4.124a, Code 8520 (2012). 3. The criteria for a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve, right lower extremity, associated with the Veteran's service-connected low back disability from May 3, 2003 are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.25, 4.26, 4.124a, Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As the October 2006 rating decision on appeal granted service connection for a lumbar disability and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The question of whether a further VCAA letter for such "downstream" issues is required was also addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this opinion, the General Counsel held that, in such circumstances, a Statement of the Case (SOC) was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the necessary SOC was issued in January 2009. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and VA's duty to assist requirements has been satisfied. The service treatment records are associated with his claims file, and VA has obtained all pertinent/identified records that could be obtained. The Board also finds that there has been substantial compliance with the August 2009 Board remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). While such substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). SSA records and additional VA treatment records were added to the claims file. The Veteran was afforded a hearing and he was given a VA examination that is adequate for adjudicating the claim. See Barr v. Nicholson, 21. Vet. App. 303 (2007). The Board finds that there is no reasonable possibility that further assistance would aid in the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Thus, the VA's duty to assist the Veteran is met. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). Where, as in the case of the Veteran's claim, the claimant has appealed the initial rating given at the time service connection was established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating ("staged" ratings) from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). As discussed below, the Board considered the concept of staged ratings but found no distinct periods upon which different rating were assignable. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The service-connected low back disability is rated 20 percent disabling under 38 C.F.R. § 4.71a, Code 5285-5292 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). The rating criteria for intervertebral disc disease that were in effect when the Veteran's claim was filed in May 2003 are found under Code 5293. These criteria were in effect from September 23, 2002 to September 25, 2003 and state that intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is warranted. A 40 percent rating is for application where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Note (1): For purposes of evaluations under 5293, 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Other rating criteria for diseases of the spine in effect at that time are as follows: Under the provisions of Code 5285, a 100 percent rating is warranted with cord involvement and the Veteran bedridden and requiring long leg braces. A 60 percent rating is warranted when there is no cord involvement but there is abnormal mobility requiring a neck brace (jury mast). In other cases, the disability is to be rated on the basis of limitation of motion or muscle spasm with an additional 10 percent for a demonstrable deformity of a vertebral body to be added to the evaluation of the Veteran's disability. 38 C.F.R. § 4.71a, Code 5285. Under the provisions of Code 5292, a 10 percent evaluation is warranted for slight limitation of motion of the lumbar spine, a 20 percent evaluation is assigned for moderate limitation of motion, and a 40 percent evaluation is assigned for severe limitation of motion. 38 C.F.R. § 4.71a, Code 5292. Under Code 5295 lumbosacral strain warrants a no percent evaluation when manifested by slight subjective symptoms only. A 10 percent rating is assigned when there is characteristic pain on motion. A 20 percent rating is assigned where there is muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating is assigned for severe disability with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Code 5295 (2003). Rating criteria for diseases of the spine were later revised; the new criteria are in effect from September 26, 2003. Code 5235, Vertebral fracture or dislocation; Code 5236, Sacroiliac injury and weakness; Code 5237, Lumbosacral or cervical strain; Code 5238, Spinal stenosis; Code 5239, Spondylolisthesis or segmental instability; Code 5240, Ankylosing spondylitis; Code 5241, Spinal fusion; and Code 5242, Degenerative arthritis of the spine; are rated under the following new general rating formula for diseases and injuries of the spine: 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: A 20 percent rating is assigned for 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. A 30 percent is assigned for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent evaluation will be assigned for 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. A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. 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): 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 (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. 38 C.F.R. § 4.71a , Codes 5235 to 5242. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under Diagnostic Code 5243, a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. In accordance with VAOPGCPREC 3-2000, the Board will consider the claim under the old rating criteria for the entire period of the appeal, and the new criteria from the effective date of the revisions. See also 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2012). The Veteran's May 2003 claim stated that that he had constant back pain with radiation to his legs. On August 2006 VA examination, the Veteran complained of lower back pain and occasional tingling in his legs. The pain in his back also went to his left leg and it periodically went to both legs. He was unable to stand longer than 2 hours or walk farther than 2 miles. Flare-ups occurred 4 to 6 times a month but with no limitation of motion. He was not told by a physician to stay in bed at any time during the past 12 months. On examination he was able to raise up on his heels and toes well. Forward flexion was to 65 degrees, extension was to 30 degrees, left bending was to 20 degrees, right bending was to 30 degrees, and bilateral rotation was to 35 degrees. The straight leg raise on the left was to 75 degrees and on the right to 80 degrees. Deep tendon reflexes were symmetrical and 3+. The ankle jerk on the right was 2+, which was somewhat less than on the left, which was 3+. There was no lumbosacral spine tenderness or muscle spasm. The examiner gave consideration as to increased loss of motion due to fatigue, weakness, or lack of endurance and increased loss of motion during flare-ups. X-rays revealed a minor compression deformity of L4. The examiner stated that the Veteran had very minimal evidence of sciatica. An April 2007 VA treatment record notes chronic low back pain and numbness in the left thigh. The assessment was back pain with radiculopathy to the left lower extremity. An October 2008 VA treatment record shows that the Veteran rated his back pain as an 8 on a 10-point scale. He denied taking any pain medication for relief. There were no associated symptoms of numbness, tingling, or bowel or bladder problems. A November 2008 MRI of the lumbar spine revealed degenerative changes and lumbar spondylosis at L5-S1. There was also minimal increased signal centered in the intervertebral disc laterally in the right L5-S1 with some enhancement anteriorly area; the findings were likely degenerative. February 2009 VA treatment records indicate the Veteran's gait was unsteady and range of motion of the lumbosacral spine was limited and painful. There was also paraspinal muscle spasm in the lumbar area. A March 2009 VA treatment record shows the Veteran had pain with lumbar range of motion. A form dated in June 2009 related to use of paratransit service indicates the Veteran's lumbar sprain prevented him from using regular bus service. The nurse who completed the form also stated that the Veteran was limited to walking 1/4 mile unassisted, and to standing 10 to 15 minutes unassisted. On December 2010 VA examination, the Veteran indicated that he had flare-ups less than yearly and that they were severe and lasted 3 to 7 days. He was unaware of precipitating and alleviating factors, and he did not have any additional limitation of motion or other functional impairment during these times. There was no history of urinary or fecal incontinence, paresthesias, unsteadiness, or fatigue, but his did report having numbness, leg or foot weakness, falls, decreased motion, stiffness, spasms, and spine pain. He had low back pain with lifting that was moderate in intensity that was daily and lasted hours. There was radiation of an aching pain in both legs that alternated between the two legs. He denied having any incapacitating episodes. He walked with the use of a cane and he could was more than 1/4 of a mile but less than a full mile. On examination, his posture was normal but his gait was antalgic. There was no evidence of abnormal spinal curvatures. Flexion was from 0 to 72 degrees, extension was from 0 to 21 degrees, left lateral flexion was from 0 to 24 degrees, left lateral rotation was from 0 to 22 degrees, right lateral flexion was from 0 to 24 degrees, and right lateral rotation was from 0 to 21 degrees. There was no objective evidence of pain with active range of motion including repetitive motion. There were also no additional limitations after 3 repetitions. Reflex testing was normal on the right at 2+ and hypoactive on the left at 1+. Plantar flexion was normal bilaterally. Sensory testing in both lower extremities indicated that the tibial peroneal and sural nerves were affected. There was decreased sensation to vibration in the ankles and decreased sensation to pain or pinprick and light touch in the toes. There was no dysesthesia. Motor testing in the lower extremities revealed active movement against some resistant. His muscle tone was normal and there was no atrophy. An April 2010 MRI of the lumbar spine revealed mild degenerative disc disease at L4-L5 and L5-S1 with mild arthritic changes in the posterior elements. A June 2011 addendum to the examination report contains an opinion that the Veteran's bilateral lower extremity sensory radiculopathy was less likely as not caused by or aggravated by the old L4 compression fracture. The rationale was that the most recent lumbar MRI showed no evidence of any bony residual of the L4 compression fracture. He also commented that the Veteran worked many years doing heavy labor in the construction business. In June 2012, the Veteran testified that his legs gave out and that he frequently fell. He also experienced locking, and numbness in one or both legs. His back limited him to walking 1/8 of a mile due to his legs giving out. Criteria Prior To September 26, 2003 A higher rating is not assignable under Code 5292. During the appeal, the service-connected lumbar disability was manifested by no greater than moderate limitation of motion; severe limitation is not shown or approximated. In this regard, forward flexion was limited to no less than 65 degrees and extension, lateral bending, and rotation are likewise not show to demonstrate significant limitation. In considering the DeLuca factors, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40." Johnston v. Brown, 10 Vet. App. 80, 85 (1997). While the Veteran has subjectively complained of low back pain, the clinical findings made by medical professionals have been inconsistent in reporting painful motion. The Veteran reported having flare-ups but denied having any additional limitation of motion at these times. Furthermore, there is no additional functional impairment during flare-ups or with repetitive motion. Thus, the Board considered the additional factors outlined in DeLuca, but finds that they are not sufficiently severe to result in a higher rating. A higher rating is not assignable under Code 5295. Although no examiner specifically commented on whether there was a positive Goldwait's sign, the record does not indicate that other symptoms associated with a higher rating were present. In particular, there was no listing of the entire spine to the opposite side, marked limitation of forward bending in the standing position, loss of lateral motion, narrowing or irregularity of the joint space or abnormal mobility on forced motion. Regarding Code 5293, the evidence does not establish incapacitating episodes, as defined by Note 1 to Diagnostic Code 5293 (effective September 23, 2002). As such, the revised version of Diagnostic Code 5293, as in effect from September 23, 2002, cannot serve as a basis for an increased rating on the basis of incapacitating episodes. Under the revised version of Diagnostic Code 5293, as in effect from September 23, 2002, the Board must also consider whether separate evaluations for chronic orthopedic and neurologic manifestations of the service-connected back disability, when combined under 38 C.F.R. § 4.25 with evaluations for all other disabilities, results in a higher combined disability rating. As previously discussed, no greater than a 20 percent rating is assignable for the orthopedic manifestations of the service-connected lumbar disability. Complaints of neurological manifestations were noted in the initial claim and during the Veteran's first VA examination at which time he reported having occasional tingling and numbness in his lower extremities. The examiner stated that there was very minimal evidence of sciatica. Similar complaints were occasionally made throughout the appeal and while the December 2010 VA examiner found that the sensory radiculopathy in the lower extremities was unrelated to the lumbar disability, an April 2007 VA treatment record suggests that the lower extremity radiculopathy is related to the back disability. As to this point, the Board finds that the evidence overall is in equipoise; therefore, the Veteran is afforded the benefit of the doubt. Given the symptoms of radiculopathy and sciatica demonstrated during the appeal, there is sufficient evidence to establish the presence of neurological manifestations, bilaterally. Diagnostic Code 8520 governs paralysis of the sciatic nerve. Where such paralysis is complete such that the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, an 80 percent rating is available. For incomplete paralysis, where severe, with marked muscular atrophy, a 60 percent rating is available. Where moderately severe, a 40 percent rating is available. Where moderate, a 20 percent rating is available; where mild, a 10 percent rating is available. See 38 C.F.R. § 4.124a, Code 8520. The Board observes that the words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 (2012). In this case, a 10 percent rating under Diagnostic Code 8620 for radiculopathy in each lower extremity may be assigned as neurological manifestations of the service-connected lumbar disability. Since the findings have been intermittent and are shown to be minimal, no greater than 10 percent for each lower extremity may be assigned. The Veteran's complaints were first noted in his May 2003 claim and findings were later shown in VA examinations and treatment records. Based upon the evidence, these ratings are to be assigned throughout the appeal period. The Board also considered the service-connected lumbar disability under the General Rating Formula for disease or injury of the spine, effective September 26, 2003, for Diagnostic Codes 5237, 5242, and 5243 but finds that the competent clinical evidence of record is against an evaluation in excess of 20 percent for the disability at issue. Indeed, a finding of forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine is required in order for the Veteran to qualify for the next-higher 40 percent evaluation under the General Rating Formula for Disabilities of the Spine. Neither finding is shown in this case. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria 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 so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's lumbar spinal disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability has been evaluated under the applicable Diagnostic Codes that have specifically contemplated the level of occupational and social impairment caused by service-connected spinal disability. The Veteran's symptoms such as pain, limitation of motion, and mild neurological manifestations are addressed under the multiple Diagnostic Codes discussed in this decision. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In short, the preponderance of the evidence is against a finding that the orthopedic aspect of the service-connected disability warrants a higher rating. To this extent, benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56. However, the evidence is in equipoise regarding neurological manifestations; therefore, separate ratings of 10 percent for each lower extremity is granted. The Veteran's service-connected low back disability has not undergone any significant changes during the course of the appeal that would require assignment of staged ratings. Fenderson, 12 Vet. App. at 125-26. ORDER An initial rating in excess of 20 percent for the service-connected orthopedic residuals of residuals of an L4 compression fracture is denied. A separate rating of 10 percent for left lower extremity neurological manifestations associated with the service-connected low back disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. A separate rating of 10 percent for right lower extremity neurological manifestations associated with the service-connected low back disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. REMAND The matters of service connection for an innocently acquired psychiatric disorder and entitlement to a TDIU must be remanded since the record is inadequate to decide the claims. The RO made a finding in February 2010 that the stressors associated with the Veteran's service could not be corroborated due to insufficient information. However, as testified by the Veteran in June 2012, a stressor event occurred that is likely capable of corroboration. While he was stationed at Fort Dix he was part of a search party that found the body of a serviceman who had committed suicide in December 1967. The record does not show that any action was taken to corroborate this event. Although the Veteran does not know the name of the dead serviceman, the location, month, and year should be adequate information to conduct a meaningful search. Since a VA psychologist in December 2009 linked the diagnosis of PTSD to the Veteran's "military experiences" and the Veteran asserts this event is one of the stressors associated with his PTSD, it is critical that appropriate steps are taken to corroborate the event. The claim for a TDIU is inextricably intertwined with the claim for service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Consequently, a decision on this matter must be deferred pending resolution of the service connection issue. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must take appropriate steps to corroborate the Veteran's assertion that a serviceman committed suicide at Fort Dix in December 1967. All potential sources, including Fort Dix, should be contacted in pursuit of this information. 2. Associate with the claims file all VA treatment records associated with the Veteran's claimed psychiatric disability since September 2012. 3. If and only if the RO obtains corroboration of the suicide at Fort Dix, the Veteran must be scheduled for a VA psychiatric examination to determine the nature and etiology of his claimed psychiatric disability. The claims folder and a copy of this remand must be made available to the examiner for review, and he or she must specifically acknowledge receipt and review of these materials in any reports generated. The examination report must reflect review of pertinent material in the claims file. The examiner will respond to the following: (a) Does the Veteran have a diagnosis of PTSD in accordance with the DSM IV criteria? (b) If so, is PTSD at least as likely as not related to the stressor of the Veteran finding the body of a serviceman who committed suicide? (c) Does the Veteran currently have an acquired psychiatric disorder, to specifically include major depressive disorder that at least as likely as not had its clinical onset during his military service or within the initial post-service year? (d) The examiner must provide a detailed explanation based on the evidence of record as to the reasoning underlying all opinions expressed regarding the etiology of any psychiatric disorder. (e) If the Veteran has a diagnosis of PTSD linked to a corroborated stressor or if any other acquired psychiatric disorder is related to service, the examiner must discuss the impact that the disability has on the Veteran's ability to secure and follow substantial gainful employment. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. 5. Then readjudicate the Veteran's claims of service connection for an acquired psychiatric disorder and entitlement to a TDIU. If any benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs