Citation Nr: 1301914 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 10-26 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation greater than 10 percent for degenerative disc disease (DDD). 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran had verified active service from February 1975 to May 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, granted the Veteran service connection and a 10 percent initial evaluation for DDD, effective April 7, 2008 (the date on which his original claim for VA compensation was received by VA) and denied his claim for service connection for hypertension. For the reasons that will be discussed in the REMAND portion of this decision below, the issue of entitlement to service connection for hypertension is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. The Veteran and his representative will be notified by VA if any further action is required on their part. FINDINGS OF FACT 1. For the period from April 7, 2008 to November 4, 2009, the Veteran's DDD was manifested by chronic low back pain necessitating treatment with prescriptions of narcotic pain medication, with demonstrated limitation of forward thoracolumbar flexion to not less than 45 degrees due to onset of pain. 2. For the period from November 5, 2009 to June 6, 2011, the Veteran's DDD was manifested by chronic low back pain necessitating treatment with prescriptions of narcotic pain medication, with demonstrated limitation of forward thoracolumbar flexion to not less than 30 degrees due to onset of pain. 3. For the period from June 7, 2011, the Veteran's DDD was manifested by chronic low back pain necessitating treatment with prescriptions of narcotic pain medication, with demonstrated limitation of forward thoracolumbar flexion to not less than 60 degrees due to onset of pain. 4. For the period from April 7, 2008 to November 4, 2009, the Veteran's sciatica associated with his DDD was manifested by positive Lasegue's sign, bilaterally, indicating radiculopathic pain due to sciatica on straight leg raising of both lower extremities, which more closely approximates mild sciatic nerve impairment of both lower extremities due to incomplete paralysis. 5. For the period from November 5, 2009 to May 26, 2010, the Veteran's sciatica associated with his DDD was negative for Lasegue's sign, bilaterally, but was manifested by right buttock numbness and reduced motor testing scores of 3/5 for his ankles and absent ankle reflexes, bilaterally, which more closely approximates mild sciatic nerve impairment of both lower extremities due to incomplete paralysis. 6. For the period from May 27, 2010, the Veteran's sciatica of his right lower extremity associated with DDD was manifested only by positive Lasegue's sign, indicating radiculopathic pain due to sciatica on straight leg raising, which more closely approximates mild sciatic nerve impairment of the right lower extremity due to incomplete paralysis. 7. For the period from May 27, 2010, the Veteran's sciatica of his left lower extremity associated with DDD was manifested by positive Lasegue's sign, indicating radiculopathic pain due to sciatica on straight leg raising, with decreased muscle power and tone on dorsiflexion of his left foot and left big toe and absent left ankle reflex, which more closely approximates moderate sciatic nerve impairment of the left lower extremity due to incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent evaluation for DDD for the period from April 7, 2008 to November 4, 2009 have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a 40 percent staged evaluation for DDD for the period from November 5, 2009 to June 6, 2011 have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for a 20 percent staged evaluation for DDD commencing on June 7, 2011 have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (2012). 4. The criteria for a separate 10 percent evaluation for right-sided sciatica from April 7, 2008 have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & West Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 5. The criteria for a separate 10 percent initial evaluation for left-sided sciatica from April 7, 2008 to May 26, 2010 have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & West Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for a 20 percent staged evaluation for left-sided sciatica commencing on May 27, 2010 have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & West Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist. In accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. With respect only to the initial rating issue decided herein, the claim for an initial evaluation above 10 percent for DDD from April 7, 2008, is a downstream issue from a rating decision dated in March 2009, which initially established service connection for this disability and assigned the 10 percent initial rating being contested and its effective date. The Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Thusly, to the extent that there is any noncompliance with the statutorily prescribed VCAA notice requirements with respect only to the claim for an initial evaluation above 10 percent for DDD from April 7, 2008, such noncompliance is deemed to be non-prejudicial to this specific claim. VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the claimant of its duty to assist in obtaining records and supportive evidence. With regard to the increased initial rating claim for DDD, the Board observes that the Veteran's private and VA medical and examination records pertinent to treatment of low back pain for the period from April 2008 to June 2012 have been obtained and associated with his claims file. At this point, the Board observes that subsequent to the latest supplemental statement of the case (SSOC) dated July 2012, VA medical records dated February 2009 to June 2012 were electronically associated with the Veteran's claim in August 2012; however, these were not apparently reviewed in the first instance by the agency of original jurisdiction. See 38 C.F.R. § 19.9 (2012). These February 2009 - June 2012 VA records show, in pertinent part, that the Veteran reported a history of chronic low back pain and objectively demonstrate radiculopathic pain radiating down his left buttock and lower extremity on a May 27, 2010 treatment report, with a notation in this report referring the Veteran for an MRI study. In this regard, the claims file does include the report of this VA-authorized MRI examination of the Veteran's spine, which was conducted in August 2010, presented and discussed identical clinical findings as noted in the May 2010 VA treatment note, and was considered in the first instance by the RO in the July 2012 SSOC. The August 2010 MRI report essentially incorporates and expands on the findings obtained in May 2010. Although the VA records from February 2009 to June 2012 address his back disorder, the Board finds that they do not present any new clinical findings relating to the severity of the Veteran's service-connected back disability that have not already been demonstrated in prior medical records, which have themselves already been considered in the first instance by the agency of original jurisdiction. The records are essentially duplicative. As such, it is harmless error for the Board to adjudicate the initial rating claim without first referring these records to the RO for issuance of an SSOC, and the Board finds that no actual prejudice to the Veteran's claim would result. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran was provided with several VA examinations during the course of this claim to assess the severity of his thoracolumbar disability due to DDD. These examinations were conducted in October 2008, November 2009, and June 2011. Each of these examinations were conducted following review of the pertinent clinical history contained in the Veteran's claims file, and all objective findings relating to his thoracolumbar disability due to DDD and the criteria of the applicable Diagnostic Codes used to rate this disability have been obtained and presented in these examination reports in the context of this history. As previously discussed, the VA medical records dated February 2009 - June 2012 do not present new or different clinical findings relating to the state of the Veteran's low back disorder compared to those already presented in the prior records and considered by the examining clinicians. Therefore, the Board finds no defects in these current examinations that would render any of them inadequate for VA adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have had ample opportunity during the course of this appeal to identify and/or submit any additional evidence that they deemed pertinent to his initial rating claim and they have not indicated that there are outstanding relevant medical records or other pertinent evidence that must be considered that have not already been obtained. The Board notes that in correspondence dated August 2012, the Veteran has identified private cardiac treatment records dated in 2012 as part his claim for service connection for a cardiac disorder, which have clear potential relevance to his claim for service connection for hypertension. These records are currently unassociated with the evidence and are the subject of the evidentiary development ordered in the REMAND below. However, as neither the Veteran nor his representative have indicated that these cardiovascular records would be relevant to his treatment for back pain, the Board finds it unnecessary to hold adjudication of the back disability rating claim in abeyance pending the association of these outstanding cardiac treatment records with the claims file. Thusly, with respect only to the issue of entitlement to a higher initial evaluation for DDD, the Board is satisfied that the evidence is sufficiently developed for appellate adjudication and that no further development with regard to this specific matter is necessary. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of the initial rating claim decided herein, and thus no additional assistance or notification is required in this regard. As previously discussed, the claimant has suffered no actual prejudice that would warrant a remand, and thus his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of the initial rating claim on appeal. The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual background and analysis: Entitlement to an initial evaluation greater than 10 percent for DDD. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2012). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2012). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The award of service connection and a 10 percent rating for DDD was in effect as of April 7, 2008 (i.e., the date on which his claim was received by VA); the relevant temporal focus is therefore from April 7, 2008, to the present. Id. at 509. Earlier evidence is not necessarily irrelevant, but it is generally not needed to determine the claim for an increased rating. Id. As noted in the introduction of the instant document, the RO granted service connection for DDD in a March 2009 rating decision and assigned a 10 percent disability rating effective April 7, 2008. The rating to be assigned for any and all manifestations of the Veteran's thoracolumbar disability due to DDD is before the Board for the entire period of time on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (explaining that once there is jurisdiction as to an initial or higher disability evaluation, jurisdiction extends to all means of assigning a higher evaluation). Additionally, the schedular criteria for rating disabilities of the spine explicitly states that separate neurologic and orthopedic manifestations are to be assigned ratings under the respective criteria, unless intervertebral disc syndrome is evaluated based on incapacitating episodes. In short, the Veteran's timely notice of disagreement with the March 2009 rating decision conferred on the Board jurisdiction to address all manifestations of his thoracolumbar spine disability during all periods encompassed by his appeal. Orthopedic manifestations of the Veteran's service-connected DDD of the thoracolumbar spine are rated under the criteria provided in 38 C.F.R. § 4.71a, Diagnostic Code 5243 for impairment due to intervertebral disc syndrome (IVDS). The criteria for rating all spine disabilities are set forth in a General Rating Formula for Diseases and Injuries of the Spine. The criteria contained therein provide that these disabilities are to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The pertinent part of the General Formula for rating disability of the thoracolumbar spine is as follows: 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, assign a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine, assign a 50 percent rating. . . . [F]forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, assign a 40 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; . . . or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; . . . or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, assign a 20 percent rating. Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; . . . or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; . . . or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the vertebra height, assign a 10 percent rating. 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, . . . [n]ormal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the. . . thoracolumbar spine is 240 degrees. 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. Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, assignment of a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, assignment of a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, assignment of a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, assignment of a 10 percent evaluation is warranted. Note (1): For purposes of evaluations under Diagnostic Code 5243 [intervertebral disc syndrome], 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. Note (2): 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 incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (2012). The Board must also consider whether a separate disability rating would be appropriate for neurological findings appropriate to the site of the diseased disc under the Diagnostic Codes pertaining to rating neurological disorders. See Bierman v. Brown, 6 Vet. App. 125 (1994). As will be further discussed below, the clinical evidence indicates the presence of sciatica associated with the Veteran's service connected DDD. Under the criteria of Diagnostic Code 8520 for rating impairment of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned for "complete" paralysis, manifested by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40 (2012), functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45 (2012), factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59 (2012), painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). By history, the Veteran's service treatment records show diagnosis and treatment for DDD of the L5-S1 vertebrae in 1991, onset without known precipitating trauma, with continued treatment for associated back pain for the duration of his period of active duty. The Board notes at this juncture that he served as an X-ray and medical technician for most of his period of military service. The objective clinical evidence pertinent to the period commencing in April 2008 shows that the Veteran was using and was continued on prescriptions of narcotic medication (Darvon and Oxycodone) at nighttime for relief from his complaints of severe and chronic low back pain. VA examination of the spine in October 2008 shows that the Veteran had no erectile dysfunction, or urinary or bowel incontinence associated with his service-connected DDD. He complained of daily, moderate, constant low back pain in his L4-S1 region with pain in his paraspinous muscles. Flare-ups of elevated severe pain reportedly occurred weekly, lasting for hours and alleviated by prescribed narcotic medication. The Veteran owned a farm and his low back pain was precipitated by uploading hay and frequent bending motions, which limited his ability to carry and to perform lifting and bending motions. He reported that he often sits down to rest his back and relieve the pain and he was unable to change equipment on his tractor, load hay, and ride horses. Otherwise, in his usual occupation he was employed full-time as a radiology technician and officer manager for a physician's practice. He reportedly lost less than one week of work in the past 12-month period, but this was reported as due to migraine headaches and flu. Objective examination shows normal posture and gait with symmetrical body appearance. The Veteran did not use a brace, cane, or any other supportive or assistive devices to ambulate. He reported having low back pain with pain radiating into his adjacent paraspinous muscles. Clinical testing shows that he was positive for Lasegue's sign, bilaterally. Lasegue's sign is defined as sciatic pain demonstrated on straight leg raising, which indicates the presence of a herniated disc affecting the sciatic distribution of the affected lower extremity. See Dorland's Illustrated Medical Dictionary, 30th Ed., p. 1700 (2003). Otherwise, however, no leg or foot weakness, numbness, paresthesias, erectile dysfunction, or bladder or bowel incontinence was clinically associated with the service-connected low back disability. X-rays revealed mild changes of the lumbosacral spine due to osteoarthrosis with no evidence of acute vertebral fracture or dislocation. Active thoracolumbar motion on forward flexion was from zero - 90 degrees, with onset of pain at 45 degrees but with no additional loss of motion on repetitive use and normal resisted isometric movement. Active thoracolumbar motion on backward extension was from zero - 30 degrees, with onset of pain at 20 degrees but with no additional loss of motion on repetitive use and normal resisted isometric movement. Active thoracolumbar motion on lateral flexion was from zero - 30 degrees, bilaterally, with onset of pain at 30 degrees, bilaterally, but with no additional loss of motion on repetitive use and normal resisted isometric movement. Active thoracolumbar motion on lateral rotation was from zero - 30 degrees, bilaterally, with onset of pain at 25 degrees, bilaterally, but with no additional loss of motion on repetitive use and normal resisted isometric movement. The examining clinician determined that the Veteran's service-connected DDD with chronic low back pain due to degenerative joint disease (DJD) and bulging disc imposed no significant effect on his usual occupation. He was limited to walking 100 yards due to pain. Effects on his usual daily activities were characterized as mild on his ability to dress and groom himself; moderate on his ability to perform chores and travel; and severe on his ability to shop and engage in recreational activities. His DDD prevented him from engaging in sports and physical exercise, but did not have any limiting impact on his ability to feed and bathe himself and to attend to the needs of nature. The Board has considered the above evidence. Notwithstanding that the Veteran's service-connected low back disability does impair his ability to perform some primary physical tasks associated with the upkeep of his farm, the objective medical evidence does not indicate that this disability significantly impacts his capacity to perform his usual daily full-time occupation as a physician's office manager and radiographic technician. However, the clinical evidence does demonstrate that the Veteran requires prescriptions of narcotic medication for nighttime relief of his low back pain and that his forward flexion, when factoring in actual limitation of motion due to onset of pain, is limited to 45 degrees (although not less than 45 degrees on repetitive motion). Therefore, the Board concludes that these objective clinical findings more closely approximate the criteria for a 20 percent evaluation on the basis of demonstrated limitation of forward flexion greater than 30 degrees but not greater than 60 degrees. 38 C.F.R. § 4.7. An initial evaluation of 20 percent, effective April 7, 2008, is granted. However, the assignment of an initial evaluation greater than 20 percent is not warranted under Diagnostic Code 5243. The objective medical evidence does not demonstrate that the lumbosacral DDD is manifested by incapacitating episodes of IVDS. The Veteran has not claimed any incapacitating episodes due to his back disorder. Further, even considering his complaints of pain, limitation of forward flexion of the thoracolumbar spine to 30 degrees or less has not been demonstrated. Indeed, the record shows that flexion to 90 degrees, and that the 45 degrees was only assessed after considering the Veteran's complaints of pain and functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011) (pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system; but, rather, pain may result in functional loss only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.) The Board observes that the clinical evidence shows positive Lasegue's sign on medical examination in October 2008, which indicates the presence of bilateral sciatica associated with the service-connected DDD. As such, and in consideration of 38 C.F.R. § 4.7, the evidence more closely approximates the criteria supporting the assignment of separate disability evaluations for sciatica of the right and left lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Resolving any doubt in the Veteran's favor, the Board will deem this disabling condition as having been present since the date of claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, as the clinical evidence demonstrates that the involvement is wholly sensory in each lower extremity, and evidently elicited only on straight leg raising, the Board will assign no more than a 10 percent evaluation to each lower extremity under Diagnostic Code 8520 for mild incomplete paralysis of the sciatic nerve. VA spine examination on November 5, 2009 shows, in pertinent part, that the Veteran reported that he was able to walk a distance of one mile in approximately 20 minutes unassisted by any brace, cane, or supportive devices, with some slight unsteadiness but no falls. There was no history of low back surgery or trauma since the time of the prior examination. He reported pain with sitting at his job and daily activities and with driving an automobile. Objective examination of the thoracolumbar spine shows that the Veteran's posture was slightly forward, but with symmetrical spinal appearance and rhythm of spinal motion. Bilateral tenderness on palpation of the sacroiliac area was observed. Numbness in his right buttock was reported. Neurological testing shows that the Veteran was negative for Lasegue's sign, bilaterally, but unable to cooperate with reflexes at both ankles, indicating absent ankle reflexes. Motor testing of the ankles shows 3/5, bilaterally. X-ray of the lumbosacral spine revealed mild dextroscoliosis manifest by straightening of the normal curvature, anterior wedging of the L1 vertebral body, multilevel mild disc disease, varying degrees of mild degenerative changes noted overall, unilateral spondylosis without associated spondylolisthesis, and approximately 2.5 millimeters of retrolisthesis of the L4 vertebral body with no significant interval change in flexion or extension. The radiographic diagnosis was DDD of the lumbar spine. Active and passive thoracolumbar motion on forward flexion was from zero - 80 degrees, with onset of pain at 30 degrees but with no additional loss of motion on repetitive use. Active thoracolumbar motion on backward extension was from zero - 25 degrees, with onset of pain at 25 degrees but with no additional loss of motion on repetitive use. Active thoracolumbar motion on lateral flexion was from zero - 30 degrees, bilaterally, with onset of pain at 30 degrees, bilaterally, but with no additional loss of motion on repetitive use. Active thoracolumbar motion on lateral rotation was from zero - 20 degrees, bilaterally, with onset of pain at 20 degrees, bilaterally, but with no additional loss of motion on repetitive use. The Board has considered the above clinical evidence, which does demonstrate as of VA examination on November 5, 2009, that the Veteran's forward flexion, when factoring in actual limitation of motion due to onset of pain, is limited to 30 degrees (although not less than 30 degrees on repetitive motion). The Board also considers the impact of his daily low back pain on prolonged sitting, as would be expected in his usual occupation as a radiographic technician and physician's office manager. Therefore, the Board concludes that these objective clinical findings more closely approximate the criteria for a 40 percent evaluation on the basis of demonstrated limitation of forward flexion of 30 degrees due to pain. 38 C.F.R. § 4.7. On this basis, a staged evaluation of 40 percent, effective November 5, 2009, is assigned. The assignment of a staged evaluation above 40 percent from November 5, 2009 is not warranted under Diagnostic Code 5243. The objective medical evidence does not demonstrate that the lumbosacral DDD is manifested by incapacitating episodes of IVDS or ankylosis of the thoracolumbar spine. Moreover, even considering any complaints of weakness, fatigability, or loss of function due to pain, a higher disability may not be assigned. See Johnston v. Brown, 10 Vet. App. 80 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable). The Board observes that the clinical evidence objectively shows negative Lasegue's sign, bilaterally, on medical examination on November 5, 2009, but that the Veteran had right buttock numbness, reduced motor testing scores of 3/5 for his ankles, and also absent ankle reflexes, bilaterally. As will be further discussed, the absent ankle reflexes have been subsequently associated with the Veteran's DDD (see August 2010 VA MRI and June 2011 VA examination reports). The clinical evidence thus indicates the continued presence of neurological impairment analogous to bilateral sciatica associated with the service-connected DDD. As such, the continued assignment of a separate 10 percent evaluation to each lower extremity on the basis of mild incomplete paralysis of the sciatic nerve of each leg is warranted. However, as the clinical evidence does not demonstrate more than mild incomplete paralysis of the sciatic nerve for each lower extremity, assignment of a 20 percent evaluation is not warranted for either lower extremity under Diagnostic Code 8520. The report of a May 27, 2010 VA treatment note shows that the Veteran complained of low back pain, with pain radiating down his left buttock, which was diagnosed as radicular-type low back pain. Straight leg raising was positive for Lasegue's sign, bilaterally, with objective findings of decreased muscle power and tone on dorsiflexion of the left foot and left big toe and absent left ankle reflex. An MRI consultation was planned. Thereafter, a VA-authorized CT scan of the Veteran's lumbosacral spine in July 2010 and an MRI of his lumbosacral spine conducted in August 2010 revealed the presence of degenerative changes associated with DDD, manifested by mild broad-based disc bulge at L2/3 with minimal spondylosis and mild canal stenosis; broad-based disc bulges at L3/4 and L4/5 with mild canal stenosis; mild broad-based disc bulge at L5/S1 with left paracentral disc protrusion and mild-to-moderate canal stenosis; and mild-to-moderate bilateral exit neuroforaminal narrowing at L5/S1 and the left of L4/5. The August 2010 MRI study incorporated the findings presented earlier in May 2010, regarding the bilateral positive straight leg raising test results, the decreased muscle power and tone on dorsiflexion of the left foot and left big toe, and the absent left ankle reflex. Private medical reports dated June - November 2010 show treatment of the Veteran for chronic low back pain, for which he was prescribed narcotic medication for relief of pain. Degenerative osteophytic and soft tissue changes of the lumbosacral discs and vertebrae were noted on radiographic examination. VA spine examination on June 7, 2011 shows, in pertinent part, that the Veteran had no history of spine trauma or hospitalization or surgery for low back pain. He reported an constant, moderate aching back pain that was aggravated by prolonged sitting or bending. He could walk more than a quarter-mile distance but less than a full mile without any assistive or supportive devices. Gait abnormality on examination was attributed to an unrelated laceration injury of his left kneecap from a chainsaw accident. Objective examination of the thoracolumbar spine revealed no ankylosis. Muscle spasm of the thoracolumbar spine was observed, which did not cause any gait abnormalities or abnormal spinal contour. No muscle atrophy was detected. The June 2011 examination incorporated the prior findings of bilateral positive straight leg raising test results, decreased muscle power and tone on dorsiflexion of the Veteran's left foot and left big toe, and absent left ankle reflex. Active thoracolumbar motion on forward flexion was from zero - 90 degrees, with onset of pain at 60 degrees but with no additional loss of motion on repetitive use. Active thoracolumbar motion on backward extension was from zero - 30 degrees, with onset of pain at 10 degrees but with no additional loss of motion on repetitive use. Active thoracolumbar motion on lateral flexion was from zero - 20 degrees, bilaterally, with onset of pain at 10 degrees, bilaterally, but with no additional loss of motion on repetitive use. Active thoracolumbar motion on lateral rotation was from zero - 30 degrees, bilaterally, with onset of pain at 30 degrees, bilaterally, but with no additional loss of motion on repetitive use. The Veteran's usual full-time occupation was as a radiology technician for an orthopedic surgeon, and that he also operated his own cattle farm by himself. Time lost from work during the past 12-month period was reportedly less than one week, but the Veteran stated that he was able to adjust his work environment to accommodate his disabilities and so "doesn't miss work much." His cattle farm was described by the Veteran as being moderate-sized, with 60 head of cattle, which he maintained a 250+ acre tract to support. He stated that he baled hay for his own livestock and those on his brother's farm. He reported that he sustained a left leg injury from using a chainsaw to clear debris in the aftermath of a tornado. The diagnoses were degenerative arthritis of the lumbar facets, multilevel lumbar DDD, and bilateral sciatica of the buttocks. The examining clinician determined that the occupational and daily activity effects imposed by the Veteran's IVDS and DDD and low back pain included decreased mobility, problems with lifting and carrying, difficulty reaching for objects, weakness or fatigue with lack of stamina, decreased lower extremity strength. VA outpatient treatment reports dated from June 2011 to June 2012 show, in pertinent part, that the Veteran related a history of chronic back pain. The June 2012 report shows that he did not desire to have his back pain addressed as he was satisfied with his current treatment regimen and declined to have his medication adjusted or undergo any other pain management interventions. The Board has considered the above clinical evidence, which does demonstrate as of VA examination on June 7, 2011, that the Veteran's forward flexion, when factoring in actual limitation of motion due to onset of pain, is limited to 60 degrees (although not less than 60 degrees on repetitive motion). The record indicates that the low back disability is primarily manifested by pain, but that the Veteran has otherwise been demonstrated to be able to work at a very high capacity without losing more than a week of work over the course of a 12-month period, holding full-time employment as a radiology technician while simultaneously operating his own cattle farm. Indeed, he appears to be physically robust enough to have been able to handle a chainsaw to remove post-tornado debris (albeit not without sustaining an accidental left knee injury). Therefore, the Board concludes that these objective clinical findings more closely approximate the criteria for a 20 percent evaluation on the basis of demonstrated limitation of forward flexion of not less than 60 degrees due to pain. 38 C.F.R. § 4.7. On this basis, a staged evaluation of 20 percent, effective June 7, 2011, is assigned. However, while bilateral sciatica of the buttocks was noted on examination, as the objective medical evidence does not demonstrate that the lumbosacral DDD is manifested by incapacitating episodes of IVDS or ankylosis of the thoracolumbar spine, assignment of a staged evaluation above 20 percent from June 7, 2011 is not warranted under Diagnostic Code 5243. Such is simply not supported/established by the record. The Board observes that as of May 27, 2010, the clinical evidence objectively shows return of positive Lasegue's sign, bilaterally, with decreased muscle power and tone on dorsiflexion of the Veteran's left foot and left big toe, and absent left ankle reflex. The clinical evidence thus indicates the continued presence of neurological impairment analogous to bilateral sciatica associated with the service-connected DDD. The continued assignment of a separate 10 percent evaluation to the right lower extremity on the basis of mild incomplete paralysis of the sciatic nerve of the right leg is warranted. The clinical evidence for this period indicates no findings regarding an absent right ankle reflex. The Board thereby concludes that right lower extremity sciatica is manifested by no more than mild incomplete paralysis of the sciatic nerve for the right lower extremity, such that assignment of a 20 percent evaluation is not warranted for this limb under Diagnostic Code 8520. On the other hand, in addition to continued absence of left ankle reflexes the clinical evidence now shows that there is also decreased muscle power and tone on dorsiflexion of the Veteran's left foot and left big toe. The Board finds that these objective findings more closely approximate the criteria for moderate impairment of the left sciatic nerve due to incomplete paralysis. 38 C.F.R. § 4.7. The assignment of a 20 percent evaluation for sciatica of the left lower extremity under Diagnostic Code 8520 is warranted, effective May 27, 2010. However, as the symptoms of sciatica of the lower left extremity is limited reflexes and decreased muscle power but without any identified loss of function, the Board finds that the above evidence does not demonstrate a disability picture that more closely approximates moderately severe sciatic nerve impairment due to incomplete paralysis, such that would support the assignment of a 40 percent evaluation under Diagnostic Code 8520. The Board also finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected DDD and associated bilateral sciatica, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The evidence establishes that the Veteran's DDD and sciatica does not produce a greater impact on his occupational capacity that renders impractical the criteria contemplated by the applicable rating schedule as contained in 38 C.F.R. § 4.71a, Diagnostic Code 5243. Additional evidence also does not indicate that he was unable to engage in work-related physical activity due solely to his DDD and sciatica, as previously discussed. Although there is certainly painful low back and sciatic nerve symptomatology associated with his DDD and sciatica that imposes a measure of physical impairment upon the Veteran, he has nevertheless been demonstrated to be capable of maintaining his own moderately-sized cattle farm by himself, as well as continue to work in a full-time capacity in the medical field as a radiology technician and physician's office manager. Furthermore, his DDD and bilateral sciatica are not his sole service-connected disabilities, as he has other multiple orthopedic, respiratory, digestive, and skin disabilities that individually and collectively contribute to his overall level of occupational impairment. The Board notes at this point that the Veteran is currently rated 100 percent disabled under Diagnostic Code 6604 of the rating schedule due to chronic obstructive pulmonary disease alone, among his multiple service-connected disabilities. The Board finds that the Veteran's level of occupational impairment due solely to symptoms associated with his service-connected DDD is within the scope of the 20 percent initial evaluation assigned to it from April 7, 2008 to November 4, 2009; the 40 percent staged evaluation assigned to it from November 5, 2009 to June 6, 2011; and the 20 percent staged evaluation assigned to it from June 7, 2011, based on Diagnostic Code 5243 of the rating schedule. His level of occupational impairment due solely to symptoms associated with sciatica of his right lower extremity is within the scope of 10 percent evaluation assigned to it from April 7, 2008, based on Diagnostic Code 8520. His level of occupational impairment due solely to symptoms associated with sciatica of his left lower extremity is within the scope of 10 percent evaluation assigned to it from April 7, 2008 to May 26, 2010, and the 20 percent evaluation assigned to it from May 27, 2010, based on Diagnostic Code 8520. The Board further finds that neither the Veteran's DDD nor his bilateral sciatica, taken separately or in concert with each other, presents a disability picture that renders the applicable rating schedule inadequate to rate the disability at issue under the specific facts unique to this individual case. Furthermore, the evidence does not indicate that the Veteran's DDD and/or bilateral sciatica requires treatment through frequent hospitalizations. The evidence demonstrates that the level of industrial impairment individually attributable solely to the service-connected DDD and/or bilateral sciatica is adequately contemplated in the criteria of the applicable rating schedule. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board is not required to discuss the possible application of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2012). See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v. Principi, 4 Vet. App. 53 (1993). ORDER A 20 percent initial evaluation for DDD is granted for the period from April 7, 2008 to November 4, 2009. A 40 percent staged evaluation for DDD is granted from November 5, 2009 to June 6, 2011. A 20 percent staged evaluation for DDD is granted from June 7, 2011. A separate 10 percent initial evaluation for sciatica of the right lower extremity associated with DDD is granted from April 7, 2008. A separate 10 percent initial evaluation for sciatica of the left lower extremity associated with DDD is granted from April 7, 2008 to May 26, 2010. A staged 20 percent evaluation for sciatica of the left lower extremity associated with DDD is granted from May 27, 2010. REMAND With respect to the claim of entitlement to service connection for hypertension, the Board has reviewed the Veteran's claims file and observes that in April 2012, during the pendency of the hypertension appeal, he had filed an additional claim for service connection for hypercholesteremia and a heart condition. Pursuant to this claim, in an August 2012 VA Form 21-4142, he reported receiving cardiac treatment at Integris Baptist Regional Health Center in Miami, Oklahoma in March 2012, and cardiac treatment at Mercy St. Johns Clinic in Joplin, Missouri from February - June 2012. He gave his signed consent for the release to VA of the medical records relating to his treatment at these facilities, which was also a tacit request that VA contact these care providers and obtain copies of these relevant medical records on the Veteran's behalf, pursuant to VA's duty to assist under 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Although the March 2012 records from Integris Baptist Regional Health Center were obtained, the claims file does not indicate that VA had at least attempted to contact Mercy St. Johns Clinic to obtain the February - June 2012 medical records. The Veteran's claim of service connection for hypercholesteremia and a heart condition were subsequently denied in a September 2012 rating decision. Although the Veteran's claim for service connection for hypercholesteremia and a heart condition is a separate issue seemingly unrelated to the concurrently pending claim for VA compensation for hypertension now on appeal, hypertension is nevertheless a type of cardiovascular disease and therefore any records identified by the Veteran as relating to his cardiac treatment certainly has the potential to be very relevant to his hypertension claim. However, without copies of these records being present in the claims file for review and consideration, it is impossible for VA adjudicators to determine their actual relevance. Therefore, in view of this evidentiary deficit, the issue of entitlement to service connection for hypertension should be remanded to the RO/AMC for additional development of the record, to include at least obtaining the Veteran's cardiac treatment records from Mercy St. Johns Clinic for the period from February - June 2012. [See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992): When reference is made to pertinent private medical records, VA is on notice of their existence and has a duty to assist the claimant in developing his/her claim by attempting to obtain the reference private medical records.] Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO via the AMC for the following action: 1. The RO/AMC should contact the Veteran and request that he provide a detailed list of all sources of cardiac treatment, including treatment relating to hypertension, from both VA and private medical care providers. After obtaining the appropriate waivers as necessary, the RO should attempt to obtain copies of all identified medical records that have not already been associated with the evidence for inclusion in the Veteran's claims file. These records should include, but are not limited to, those identified records pertaining to his cardiac treatment received at Mercy St. Johns Clinic in Joplin, Missouri, for the period from February - June 2012. If these records, or any other records deemed relevant to the appeal, are unobtainable by VA, the RO/AMC should so state in the claims file and provide an explanation as to why they could not be obtained. If the RO/AMC is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim(s); and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(e)(1) (2012). 2. Thereafter, the RO should review the claims folder to ensure that the foregoing requested development has been completed. If the RO determines that the development undertaken is not responsive to, or in substantial compliance with, the directives of this remand, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 3. Thereafter, the RO should readjudicate the Veteran's claim of entitlement to service connection for hypertension. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case addressing the denied claim and afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review, if appropriate. The Board intimates no opinion as to the outcome in this case by the action taken herein. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs