Citation Nr: 1301962 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 08-04 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to a higher rating for lumbar degenerative disc disease, initially rated as 20 percent disabling from December 12, 2005, to July 15, 2008, and as 40 percent disabling thereafter. 2. Entitlement to a higher initial evaluation for left leg radiculopathy, rated as 40 percent disabling from April 8, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from January 1985 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, in which the RO granted service connection for lumbar degenerative disc disease and awarded an initial 10 percent disability rating. In a May 2007 rating decision, the RO granted a higher initial rating of 20 percent for the disability, and in a January 2009 decision, the RO granted a rating of 40 percent, effective July 15, 2008. By a September 2010 rating decision, the agency of original jurisdiction (AOJ) awarded a separate 40 percent rating for left leg radiculopathy associated with lumbar degenerative disc disease. Such an action was in accord with the criteria for rating back disabilities, which require that associated neurologic abnormalities be rated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Board remanded the case, most recently in February 2011, for further evidentiary development, and adjudication. The Board instructed the AOJ to obtain records from the Veteran's treatment at the VA Salt Lake City Health Care System, obtain a report of examination conducted in July 2008, and then re-adjudicate the claim. The AOJ obtained treatment records from the Salt Lake City facility as well the July 2008 VA examination report. The Veteran was then provided supplemental statements of the case (SSOC), most recently in April 2012, in which the AOJ continued the denial of the Veteran's claims for increase. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing at the RO in April 2008. A transcript of the hearing has been associated with the Veteran's claims file. FINDINGS OF FACT 1. . For the period prior to March 13, 2007, the Veteran's lumbar degenerative disc disease was manifested by flexion of the thoracolumbar spine to no worse than 90 degrees, even when pain is taken into consideration. 2. From March 13, 2007, to July 15, 2008, the Veteran's lumbar degenerative disc disease was manifested by flexion of the thoracolumbar spine limited to 30 degrees, when pain is taken into consideration 3. From July 15, 2008, the Veteran's lumbar degenerative disc disease has been manifested by flexion of the thoracolumbar spine no worse than 20 degrees, even when pain is taken into consideration. 4. The Veteran's service-connected left leg radiculopathy has been manifested by decreased sensation to pain, temperature, and touch; no marked muscular atrophy or evidence of complete paralysis has been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for lumbar degenerative disc disease were not met prior to March 13, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a rating of 40 percent, but no higher, for lumbar degenerative disc disease were met for the period from March 13, 2007, to July 15, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243 (2012). 3. The criteria for a rating in excess of 40 percent for lumbar degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5243 (2012). 4. The criteria for an initial rating in excess of 40 percent for left leg radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision on the claims on appeal has been accomplished. In this respect, through January 2006 and May 2006 notice letters, the RO notified the Veteran of the information and evidence needed to substantiate his claims. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the May 2006 notice letter, as well as via a letter provided to him in December 2009. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claims, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the January 2006 and May 2006 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned January 2006 and May 2006 notice letters. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the January 2006 and May 2006 notice letters. The Board notes that VCAA notice is not required with respect to every aspect of a claim raised by a claimant. If, for example, a Veteran files a claim for service connection for a disability, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the Veteran's claims for higher initial ratings fall within this pattern. Thus, no additional VCAA notice was required with respect to the claims on appeal. Furthermore, as to the initial rating claims, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman, supra. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims on appeal. Records from the Veteran's treatment at the VA Medical Center (VAMC) in Salt Lake City have been associated with the claims file. In addition, the Veteran was provided VA examinations in October 2006, March 2007, July 2008, and April 2010; reports of those examinations have been associated with the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and reflect that the examiners conducted full examination of the Veteran, including information necessary to apply the pertinent rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the claims on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence; he and his representative have provided written argument in support of his appeal, and he and his wife have testified before the undersigned Veterans Law Judge. Neither the Veteran nor his representative has identified, and the record does not indicate, existing records pertinent to the claims on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that his service-connected lumbar degenerative disc disease is more disabling than reflected by the 20 percent rating initially assigned prior to July 15, 2008, and the 40 percent rating assigned thereafter. The Veteran also contends that his service-connected left leg radiculopathy is more disabling than reflected by the 40 percent rating initially assigned. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use). See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation and Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. In its May 2007 and January 2009 rating decisions, the AOJ evaluated the Veteran's lumbar degenerative disc disease in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). In the May 2007 decision, the AOJ assigned the Veteran an initial disability rating of 20 percent for lumbar degenerative disc disease. In the January 2009 decision, the AOJ increased the rating for the disability to 40 percent, effective July 15, 2008. In addition, in a September 2010 decision, the AOJ awarded the Veteran service connection for left leg radiculopathy, assigning an initial 40 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. Under the General Rating Formula for Diseases and Injuries of the Spine, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted 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 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Following the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine, Note (1) provides: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. (Although the originating agency has awarded a separate compensable rating for radiculopathy of the right lower extremity as a result of the service-connected arthritis of the lumbar spine, the Veteran has not disagreed with the rating assigned. Consequently, the Board has limited its decision to the rating for the spine itself.) Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 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) provides that 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) requires that each range of motion measurement be rounded to the nearest five degrees. Note (5) provides that 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) provides that disabilities of the thoracolumbar and cervical spine segments must be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under current provisions for rating intervertebral disc syndrome, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine as noted above, 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 § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). For evaluation of intervertebral disc syndrome, with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent rating is assignable. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent rating is assignable. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, a 60 percent rating is assignable. Id. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated 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. Id. As for neurological disabilities, evaluations are assigned based on whether the paralysis of a particular nerve is complete or incomplete. Here, the Veteran has been evaluated for left leg radiculopathy associated with his service-connected lumbar degenerative disc disease under Diagnostic Code 8520, which addresses paralysis of the sciatic nerve. Neuritis and neuralgia of the sciatic nerve incorporate the identical criteria. See 38 C.F.R. § 4.124a, Diagnostic Codes 8620, 8720. Under Diagnostic Code 8520 for paralysis of the sciatic nerve, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent disability rating is warranted for complete paralysis. Complete paralysis is found when the foot dangles and drops, with no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). Relevant medical evidence consists of VA examinations conducted in October 2006, March 2007, July 2008, and April 2010, as well as records of treatment the Veteran has received from the Salt Lake City VAMC. Report of VA examination conducted in October 2006 reflects that the Veteran reported pain in his lumbar spine. Specifically, the Veteran reported soreness in the mornings and stiffness with prolonged sitting as well as pain and limitation of motion. The examiner noted the Veteran's complaint that his low back problems made working difficult, as he was limited in lifting and other manual labor. He denied shooting pain into his legs, as well as weakness, fatigue, and incoordination. No incapacitating episodes were reported, and the Veteran was noted to have a normal posture and gait. Neurological examination was normal. Physical examination revealed range of motion of the of the lumbar spine of flexion to 90 degrees, extension to 30 degrees, lateral bending to 30 degrees bilaterally, and rotation to 30 degrees bilaterally. Pain was noted on repetitive motion, but no limitation due to repetitive motion was found. The examiner diagnosed the Veteran with lumbar degenerative disc disease status post L5-S1 laminectomy. At the Veteran's March 2007 VA examination, the Veteran complained of daily pain in his low back that kept him from lifting or engaging in any sports activities. He complained that the pain radiated to his legs, on the left more than on the right, and noted that bending particularly hurt his back. He denied having taken any bed rest or experienced any incapacitating episodes. Physical examination revealed a normal posture and gait, although the Veteran was noted to have muscle spasms and tenderness to palpation in the low back. Range-of-motion testing of the lumbar spine revealed flexion to 70 degrees, with pain beginning at 30 degrees; extension to 25 degrees, with pain on the motion; lateral bending to 30 degrees bilaterally; and rotation to 25 degrees bilaterally. No limitation due to repetitive motion was found. Straight-leg raise testing was positive on the left. Neurological examination revealed normal strength, sensation, and reflexes in the lower extremities bilaterally. The examiner diagnosed the Veteran with chronic lumbar strain status post L5-S1 laminectomy. Report of VA examination conducted on July 15, 2008, reflects that the Veteran again reported pain in his lumbar spine that radiated down his left leg, as well as tingling, numbness, and decreased sensation. He complained of increased pain with sitting and lying down and stated that he was unable to bend to pick anything up. He also stated that he had constant trouble sitting or lying down. Physical examination revealed a normal gait and posture, and the Veteran was noted to have tenderness to palpation in the lumbar spinal muscles. No muscle spasm or radiation of pain was noted. Neurological examination was normal in the lower extremities bilaterally. His range of motion of the lumbar spine was found to be flexion to 20 degrees without pain, extension to 10 degrees, lateral bending to 13 degrees on the right and 10 degrees on the left, and rotation to 0 degrees bilaterally. Pain was also noted to limit his motion, but no limitation due to repetitive motion was found. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine and sciatica. Report of VA examination conducted in April 2010 reflects that the Veteran again reported ongoing pain in his lumbar spine. Specifically, the Veteran reported that his primary difficulty was with lifting heavy weights and stated that his inability to do manual labor had caused him to lose several jobs. He also complained of daily flare-ups in his low back that were not incapacitating. The Veteran further stated that he experienced pain in his legs bilaterally, worse on the left, and complained of difficulty with climbing stairs and playing sports. No numbness or giving way was reported. Physical examination found the Veteran to have a normal gait and posture. His range of motion of the lumbar spine was found to be flexion to 50 degrees, with pain throughout the motion; extension to 20 degrees without pain; lateral bending to 20 degrees bilaterally without pain; and rotation to 20 degrees bilaterally without pain. No additional limitation due to repetitive motion was found. Neurological examination was normal, including normal strength in the lower extremities with no muscle atrophy bilaterally, with the exception of decreased sensation of the left leg. The examiner diagnosed the Veteran with significant lumbar degenerative disc disease and radiculopathy of the bilateral lower extremities but worse on the left. The examiner noted, however, that examination confirmed radiculopathy only on the left. The examiner opined that the Veteran's disabilities rendered him unable to engage in manual labor but presented no challenges to his ability to maintain sedentary employment. In addition, the Veteran has received ongoing treatment for his complaints of pain in his lumbar spine and numbness in his left leg and foot. To that end, records from his treatment at the Salt Lake City VAMC on several occasions in 2007 document that the Veteran complained of experiencing back pain and left lower extremity numbness, but he denied severe or agonizing pain. He was noted to have a normal gait with good range of motion in at a November 2007 treatment visit. He was seen in January 2008 for complaints of back pain following a fall from bed. At the time, he was diagnosed with acute lumbar strain and was prescribed bed rest for two days. He again reported occasional numbness in the left foot but denied severe or agonizing back pain at an August 2008 treatment visit. The Veteran has also stated on multiple occasions, including at his April 2008 hearing before the undersigned Veterans Law Judge, that he experiences pain in his low back, as well as tingling and numbness in his left leg. He has stated that this pain has made him unable to find work in manual labor. However, he has reported that he is attending school and studying behavioral science with the goal of becoming a social worker. Regarding the Veteran's service-connected lumbar degenerative disc disease for the period prior to March 13, 2007, the Board finds that the disability warranted an initial rating of no more than 20 percent. In this case, the Board finds that, for this period, the Veteran's flexion of the thoracolumbar spine was no worse than 90 degrees, which does not warrant a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. In particular, the Board notes that at the Veteran's October 2006 VA examination, he was noted to have flexion of the thoracolumbar spine to 90 degrees with some pain on repetitive motion. As noted above, in VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability. In this case, the Board has taken into consideration the Veteran's pain on flexion of the lumbar spine at his October 2006 examination and nevertheless finds that the Veteran's forward flexion of the lumbar spine is functionally limited to, at worst, the 90 degrees recorded by the VA examiner, given that no additional limitation was noted on repetitive motion. The Board thus concludes that the range of motion and functional loss displayed by the Veteran at his October 2006 VA examination does not warrant a higher rating for his lumbar spine disability prior to March 13, 2007. In that connection, the Board notes that the Veteran did not display flexion of the thoracolumbar spine of 30 degrees or less at any time prior to March 13, 2007, even when considering pain on motion, to warrant a 40 percent rating. Similarly, the Board also notes that there is no evidence that the Veteran's lumbar degenerative disc disease resulted in disability comparable to ankylosis to warrant a 50 or 100 percent disability rating at any point prior to March 13, 2007. The Board acknowledges that the Veteran's VA examination revealed painful motion of the lumbar spine. However, as discussed above, the Board finds that any such pain and its effect on the Veteran's function is properly contemplated in the 20 percent rating initially assigned prior to March 13, 2007. Therefore, the Board does not find that a rating higher than the 20 percent assigned prior to March 13, 2007, based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59, is warranted under the rating criteria. Turning to an evaluation of the Veteran's lumbar degenerative disc disease for the period from March 13, 2007, to July 15, 2008, the Board finds that, for that period, the disability warranted an evaluation of 40 percent, but no higher. In that connection, the Board notes that at his March 13, 2007, VA examination, the Veteran was found to have flexion limited to 30 degrees without pain. A 40 percent rating is warranted where forward flexion of the lumbar spine is limited to 30 degrees or less under 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, the Board further notes that there is no evidence that the Veteran's lumbar degenerative disc disease resulted in disability comparable to ankylosis to warrant a 50 or 100 percent disability rating during the period from March 13, 2007, to July 15, 2008. The Board acknowledges that the Veteran's March 2007 VA examination revealed painful motion of the lumbar spine. However, as discussed above, the Board finds that any such pain and its effect on the Veteran's function is properly contemplated in the 40 percent rating herein assigned from March 13, 2007, to July 15, 2008. Therefore, the Board does not find that a rating higher than the 40 percent assigned for this period, based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59, is warranted under the rating criteria. As for the evaluation of the Veteran's service-connected lumbar degenerative disc disease for the period since July 15, 2008, the Board finds that the disability does not warrant a rating higher than 40 percent. In that connection, the Board notes that a 40 percent rating is the highest available rating under the General Rating Formula when there remains some effective motion; to warrant a 50 percent rating or above, a diagnosis of ankylosis of the spine is required. As noted above, the Veteran has not been shown at any time to have ankylosis; he is thus not entitled to a higher rating under the General Rating Formula for Diseases and Injuries of the Spine for the period from July 15, 2008. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). The Board has also considered the Veteran's lumbar degenerative disc disease under the rating criteria for intervertebral disc syndrome. However, the evidence does not support a higher rating at any time during the claim period. In that connection, the Board notes that the Veteran reported at his April 2008 hearing that he experienced incapacitating episodes totaling two days in the year prior to the examination. No more extensive periods of incapacitation have been noted throughout the appeal period. As such, the Board finds that consideration of the Veteran's lumbar degenerative disc disease under the rating criteria for intervertebral disc syndrome does not result in a rating higher than 20 percent. In this case, the evidence of record does not reflect neurological findings resulting in incapacitating episodes of at least two weeks' total duration during any 12-month period during the current appeal. In sum, the evidence of record shows that, for the period prior to March 13, 2007, a rating in excess of the 20 percent initially assigned for the Veteran's service-connected lumbar degenerative disc disease was not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). For the period from March 13, 2007, to July 15, 2008, an increased rating to 40 percent is warranted for the Veteran's lumbar degenerative disc disease. Further, for the period from July 15, 2008, a disability rating higher than the 40 percent currently assigned for the Veteran's service-connected lumbar degenerative disc disease is not warranted. Id. The Board also finds that there are no other potentially applicable diagnostic codes by which to consider the Veteran's service-connected degenerative disc disease of the lumbar spine. In this case, while there is radiological evidence of degenerative changes of the lumbosacral spine, the Veteran is being rated for limitation of motion of the lumbosacral spine associated with such degenerative changes. Furthermore, the maximum rating otherwise allowable for arthritis in the absence of limitation of motion is 20 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). The Board also notes, as discussed above, that there is no evidence that the Veteran's lumbar degenerative disc disease has resulted in disability comparable to ankylosis at any time during the appeal period, rendering higher ratings under the current General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5243 (2012) inappropriate. The Board further finds that the Veteran is already in receipt of a separate disability rating for left leg radiculopathy, as discussed below. Further, and despite the assignment of a diagnosis of bilateral lower extremity radiculopathy at the April 2010 VA examination, at no time-including at that examination-has any neurological deficit been found in the Veteran's right leg. To the contrary, he has continued to display normal muscle strength and tone, normal reflexes, and normal sensations in the right leg. Thus, the Board finds that no other separate rating for neurological disability is warranted. The Board is cognizant, as discussed above, that the Veteran has complained of painful motion of his lumbar spine. As noted above, in VA Fast Letter 06-25, VA has determined that repetitive testing of a joint should yield sufficient information on any functional loss due to an orthopedic disability. In that connection, testing of the Veteran's lumbar spine in July 2008 revealed flexion of the lumbar spine to 20 degrees without pain; at the April 2010 VA examination, flexion of the spine was found to be 50 degrees with pain throughout the motion. In this case, the Board has taken into consideration the Veteran's complaints of pain but finds, in light of the fact that the Veteran is being rated for limitation of motion of the lumbar spine under Diagnostic Code 5243, that any such pain and its effect on the Veteran's range of motion is contemplated in the ratings assigned. Therefore, the Board does not find that ratings higher than those initially and currently assigned for the Veteran's lumbar spine disability based on any additional functional loss under 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted under the rating criteria. Regarding the Veteran's claim for an initial rating in excess of 40 percent for his service-connected left leg radiculopathy, the Board finds that the Veteran's disability does not warrant a rating higher than the 40 percent rating initially assigned. Here, given the medical evidence of record, primarily the report of the Veteran's VA examinations, the Board finds that the disability picture presented by the Veteran's left leg radiculopathy more nearly approximates the criteria required for the presently assigned 40 percent rating for moderately severe incomplete paralysis, and that a higher rating is not warranted. This is so because the evidence does not show, at any time during the claim period, that the Veteran has displayed marked muscular atrophy of the left leg to warrant a 60 percent rating under Diagnostic Code 8520. To the contrary, the April 2010 VA examiner specifically noted that no muscle atrophy was present in the lower extremities. Similarly, complete paralysis has not been shown. At no time has the Veteran's left foot been shown to dangle or drop, with no active movement possible of the muscles below the knee; similarly, no limitation of flexion of the knee has been shown. Further, the Board notes that, although decreased sensation has been demonstrated in the left leg, the Veteran has consistently been found to have normal deep tendon reflexes and normal gait as well as normal muscle strength and tone. Accordingly, the Board finds that a rating higher than the initially assigned 40 percent for left leg radiculopathy is not warranted, and the claim is denied. In sum, the evidence of record shows that an initial rating in excess of the 40 percent assigned for the Veteran's service-connected left leg radiculopathy is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). In exceptional cases, where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to service-connected disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture 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. 38 C.F.R. § 3.321 (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The first step is to determine whether the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If so, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. If the first two steps have been satisfied, the third step is to refer the claim to the under Secretary for Benefits or the Director of the Compensation and Pension Service for determination of whether an extra-schedular rating is warranted. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's lumbar spine and left leg disabilities have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2011). In that connection, the Board finds that the symptoms of the Veteran's disabilities have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral is not warranted for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 115-16. In arriving at the above-noted determinations, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for ratings higher than assigned herein, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 20 percent for lumbar degenerative disc disease for the period prior to March 13, 2007, is denied. Entitlement to a rating of 40 percent for lumbar degenerative disc disease for the period from March 13, 2007, to July 15, 2008, is granted. Entitlement to a rating higher than 40 percent for lumbar degenerative disc disease is denied. Entitlement to an initial rating in excess of 40 percent for left leg radiculopathy is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs