Citation Nr: 1303063 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-36 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for gastroesophageal reflux disease (GERD) with diarrhea. 2. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to an initial evaluation in excess of 10 percent for left leg radiculopathy, associated with degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from November 1994 to April 1995, March 2001 to July 2001, and February 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) from December 2008, February 2009, and September 2009 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). In an August 2008 rating decision (not currently on appeal), the RO granted service connection for degenerative disc disease of the lumbar spine with left leg radiculopathy, assigning a 20 percent rating effective from April 28, 2008, and for GERD with diarrhea, assigning a 10 percent rating effective from September 4, 2007. The December 2008 rating decision on appeal granted an earlier effective date of September 4, 2007 for the grant of service connection for the lumbar spine disability, but denied increased ratings for the lumbar spine and GERD disabilities. Then, in a February 2009 rating decision, the RO granted a separate rating of 10 percent for left leg radiculopathy, effective from July 18, 2008. In a September 2009 rating decision, the RO granted an earlier effective date of September 4, 2007 for the left leg radiculopathy, and an increased rating of 30 percent for GERD, effective from September 4, 2007. Thus, in light of the grant of earlier effective dates for the grants of service connection for the lumbar spine and left leg radiculopathy, as well as the grant of an increased rating for GERD back to the earliest possible effective date (September 4, 2007, the day after service separation), the issues have been characterized as they appear on the title page of this decision. FINDINGS OF FACT 1. Throughout the initial rating period on appeal, the Veteran's GERD has manifested pain and occasional vomiting and dysphagia; material weight loss, hematemesis, melena, anemia, and other symptom combinations productive of severe impairment of health have been absent; the Veteran has also experienced daily episodes of diarrhea following each meal. 2. Throughout the initial rating period on appeal, the Veteran's lumbar spine disability has been manifested by forward flexion to no less than 50 degrees, accounting for pain on motion, with resistance, and after repetition; no ankylosis; and no incapacitating episodes. 3. For the entire rating period on appeal, the Veteran's left leg radiculopathy manifested mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for GERD have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2012). 2. Resolving reasonable doubt in the Veteran's favor, for the entire initial rating period on appeal, the criteria for a separate 30 percent rating for irritable bowel syndrome have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7319 (2012). 3. The criteria for an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243, 5003 (2012). 4. The criteria for an initial evaluation in excess of 10 percent for left leg radiculopathy have not been met for any period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Because the current appeal arises from the Veteran's disagreement with the initial evaluation following the grants of service connection for GERD, lumbar spine degenerative disc disease, and radiculopathy, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted and the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA has obtained service treatment records, private treatment records, VA treatment records, and other records identified by the Veteran. The Veteran has been afforded adequate examinations on the issues of rating the GERD, lumbar spine, and radiculopathy disabilities. VA provided the Veteran with an examination in December 2008. The Veteran's history was taken, and complete examinations with clinical measures were conducted, to include review of an MRI study. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such as painful motion, weakness, impaired endurance, incoordination, or instability. Therefore, the Veteran has been afforded adequate examinations on the issues decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability Rating Criteria Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's GERD with diarrhea has been evaluated to an analogous disability under Diagnostic Code 7346, found in 38 C.F.R. § 4.114. Diagnostic Code 7346, which contemplates hiatal hernias, provides for a 10 percent disability rating when there is evidence of two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The highest available 60 percent disability rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. For purposes of evaluating conditions under 38 C.F.R. § 4.114, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period proceeding onset of the disease. 38 C.F.R. § 4.112 (2012). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) 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) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may 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 evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (effective September 26, 2003) provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. The Veteran's left leg radiculopathy has been evaluated under Diagnostic Code 8520, which is found in the Schedule of Ratings for Diseases of the Peripheral Nerves under 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, which addresses complete and incomplete paralysis of the sciatic nerve, a 10, 20, or 40 percent evaluation is assigned where incomplete paralysis is mild, moderate, or moderately-severe, respectively. A 60 percent evaluation is assigned when incomplete paralysis is severe, with marked muscular atrophy. An 80 percent evaluation is assigned where there is complete paralysis, the foot dangles and drops, no active movement is possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). GERD with Diarrhea Disability Rating Analysis The Veteran contends that an initial rating in excess of 30 percent is warranted for his service-connected GERD with diarrhea. He avers that he has persistent symptoms of heartburn, daily diarrhea, periods of dysphagia, nausea, and vomiting, and that these symptoms warrant a 60 percent evaluation. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial evaluation in excess of 30 percent for service-connected GERD for the entire rating period on appeal. For the entire initial rating period, the Veteran's service-connected GERD with diarrhea did not manifest symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health, as required for an evaluation in excess of 30 percent under Diagnostic Code 7346. 38 C.F.R. § 4.114. A December 2007 private treatment note indicates the Veteran reported that his reflux symptoms were worse, but he had not dysphagia. On physical examination, his abdomen was soft and nontender with no masses, guarding, or rebound. There were normoactive bowel sounds times four. An April 2008 VA treatment note indicates the Veteran reported intermittent diarrhea occurring two to four times per day, between fifteen and twenty minutes after eating. He denied any change in appetite, nausea/vomiting, difficulty swallowing, pain, hematemesis, ulcers, food intolerance, belching/bloating, constipation, melena, hemorrhoids, or hernia. The Veteran was afforded a VA examination in May 2008. He stated that he began experiencing episodes of burning pain in his anterior chest up to the throat in 2006. Currently, when he took Nexium daily, he had few symptoms. If he did not take Nexium, he experienced frequent episodes of epigastric pain radiating into the chest, associated with reflux of acid liquid. He denied shortness of breath or cough. The VA examiner noted that the Veteran was well-nourished, weighed 238 pounds, and that his weight had been stable over the past year. The Veteran was afforded another VA examination in June 2008, at which time he presented with additional complaints of postprandial diarrhea since separation from service. He stated that he experienced postprandial diarrhea after most meals, and particularly with spicy foods, shortly after digestion of the food. He denied any bloating or abdominal cramping, constipation, GI bleed, melena, anemia, mucus, weight loss, or loss of appetite. He said he did not treat the condition other than observation. Private treatment records from September 2008 indicate the Veteran reported GERD and occasional dysphagia, nausea, and vomiting. He also reported episodes of diarrhea, usually after eating. He stated that he had lost ten pounds. The physician assessed GERD, dysphagia, and diarrhea, and ordered an esophagogastroduodenoscopy (EGD) and a colonoscopy. The colonoscopy showed a normal terminal ileum, and a biopsy of the colonic mucosa showed nor significant histopathologic change, with no evidence of active inflammation, granulomas, dysplasia, or malignancy. The EGD revealed mucosal breaks greater than five millimeters, LA Classification grade B erosive esophagitis, no gastritis, and mild duodenitis. A biopsy of the duodenum revealed normal villous architecture, no evidence of active inflammation, granulomas, or ulceration, no pathogenic microorganisms, and was negative for dysplasia or malignancy. The physician assessed likely irritable bowel syndrome. At another VA examination in December 2008, the Veteran described daily heartburn associated with gastroesophageal reflux and chest pain that usually followed certain spicy meals. He said that the reflux lasted up to one hour and resolved within that period of time. He took Nexium daily, but it caused constipation. He denied vomiting, hematemesis, dysphagia, melena, weight loss, loss of appetite, bloating, abdominal cramping, or GI bleed. He said he had been diagnosed with irritable bowel syndrome, for which he was on a high fiber diet, although it did not help. He did not take any medication for the diarrhea, which continued to occur daily after meals. Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial rating in excess of 30 percent for GERD is not warranted for any period, as the requirements of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health, for the next higher, 60 percent, rating have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.114, Diagnostic Code 7346. The evidence does demonstrate occasional pain, as described in the December and May 2008 VA examination reports. However, there have been no reports or evidence of hematemesis, melena, or anemia. Moreover, while the Veteran reported vomiting on one occasion in September 2008, he denied vomiting and nausea in April and December 2008. In addition, while the Veteran reported losing ten pounds in September 2008 due to his GERD, such a loss does not constitute "material" weight loss. As noted above, "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer, and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. Based on the Veteran's weight of 238, recorded at the May 2008 VA examination, a loss of 10 pounds would constitute less than a five percent loss of the baseline weight, and is thus not even considered to be a "minor weight loss" under the pertinent rating criteria. In sum, the evidence demonstrates occasional pain and vomiting, only two of the criteria required for a rating in excess of 30 percent under Diagnostic Code 7346. For these reasons, the Board finds that the weight of the evidence is against an initial rating in excess of 30 percent for GERD under Diagnostic Code 7346 for the entire rating period on appeal. The Board has considered whether any alternate Diagnostic Codes would allow for an initial rating in excess of 30 percent for GERD. However, Diagnostic Codes 7203, 7204, and 7205 do not apply, as there is no evidence of stricture, spasm or diverticulum of the esophagus. Diagnostic Code 7301 does not apply, as there is no evidence of adhesions of the peritoneum. There is no evidence of ulcers, so Diagnostic Codes 7304 through 7306 do not apply. Diagnostic Codes 7307 and 7308 do not apply, as there is no evidence of hypertrophic gastritis or postgastrectomy syndromes. Diagnostic Codes 7309 and 7310 do not apply, as there is no evidence of any stomach disorders. Diagnostic Codes 7321 through 7344 do not apply, as there is no evidence of those conditions. There are no other potentially applicable Diagnostic Codes. However, the Board does find that separate, 30 percent, rating for irritable bowel syndrome is warranted in light of the diagnosis and findings recorded in September 2008 private treatment notes, as well as the Veteran's report of daily diarrhea following each meal. Diagnostic Code 7319 contemplates irritable colon syndrome. Under Diagnostic Code 7319, a noncompensable rating is assigned when the conditions is mild, with disturbances of bowel function and occasional episodes of abdominal distress; a 10 percent evaluation is assigned when the condition is moderate, with frequent episodes of bowel disturbance and abdominal distress; a 30 percent rating is assigned when the condition is severe, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. In this case, the Veteran has reported that he experiences diarrhea after each meal, and that the occurrence of diarrhea was largely determined by how many times he ate each day. While the evidence does not appear to demonstrate constant abdominal distress, diarrhea is present, which reflects a disability picture that is more severe than that reflected by the criteria for a 10 percent rating. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that a separate 30 percent rating is warranted for the Veteran's irritable bowel syndrome under Diagnostic Code 5319. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 30 percent for GERD for any period, but that, resolving any doubt in the Veteran's favor, the evidence warrants a separate 30 percent rating for irritable bowel syndrome. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Lumbar Spine Disability Rating Analysis The Veteran is in receipt of a 20 percent rating for service-connected degenerative disc disease of the lumbar spine for the entire initial rating period on appeal, under the provisions of 38 C.F.R. § 4.71a, DC 5242. He contends that his lumbar spine disability warrants a higher initial rating. Specifically, he avers that flexion of the lumbar spine is limited to 50 degrees, and that pain causes even further limitation on motion, such that a rating in excess of 20 percent is warranted. After a review of all the evidence, lay and medical, in this Veteran's case, the Board finds that a preponderance of the evidence is against the claim for an initial evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine for the entire initial rating period on appeal. For the entire rating period, even with consideration of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected lumbar spine disability did not manifest forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, as required for an evaluation in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine, or incapacitating episodes of intervertebral disc syndrome of at least 4 weeks in duration, for an evaluation in excess of 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. A December 2007 private treatment note indicates the Veteran injured his back in June of that year when he was digging a trench in hard dirt and was bent over for six hours. He had experienced pain since that time, as well as spasm in the left lower back. On physical examination, there was normal spinal alignment and mobility with no deformities. An April 2008 VA treatment note indicates the Veteran reported back pain at a level of seven out of ten in severity, and that the pain radiated down his left leg at times. He denied decreased range of motion, however. He did report tingling that radiated down his left leg on occasion from his lower back. On physical examination, flexion was to 90 degrees with discomfort expressed, muscle strength was five out of five, and straight-leg raise was negative bilaterally. The Veteran was afforded a VA examination in May 2008. He reported back pain occurring daily at a level of seven out of ten in severity at its worst. He said that he was currently an employee of the railroad and had to switch from working in the year where he was walking and lifting things to a sedentary position. He had missed two days from work in the last year due to back pain. The VA examiner noted that an April 2008 X-ray study showed narrowing of the L5-S1 disc space. On physical examination, flexion was limited to 70 degrees, extension to 35 degrees, bilateral lateral flexion to 35 degrees, and rotation to 35 degrees. After three repetitions, there was no further loss of range of motion due to pain, spasm, or tenderness. There was slight straightening of the lumbar lordosis without muscle spasm. There was slight tenderness over the left lower paraspinous area. Straight-leg raising was positive at 45 degrees on the left and negative on the right. Neurological testing reveals no sensory or motor loss in the legs, but the Veteran did report burning pain of the posterior left thigh down to the knee with attempted heel walking and range of motion testing. The VA examiner assessed degenerative disc disease of the lumbar spine with radiculopathy in the left leg, noting that the ability to walk was minimally impaired and that the Veteran did not use any assistive devices. There was additional limitation during flare-ups, and objective evidence of painful motion and tenderness, but no spasm or weakness. Several days later, a May 2008 VA treatment note indicates the Veteran continued to report back pain and weakness. On physical examination, there was left paraspinous spasm from the cervical to the lumbar area, and a positive straight-leg raising test. The sacroiliac joint was tender. Range of motion of the lumbar spine was noted to be "poor." A July 2008 VA treatment note indicates the Veteran reported back pain at a level of six or seven out of ten in severity. He described the pain as a burning sensation with a pinching component. He said the pain radiated down the posterior aspect of his left leg to the knee level, where it stopped. He denied weakness in the legs, but there was tingling in the lower posterior thigh. A June 2008 MRI study was reviewed and revealed a left pre-foraminal disc protrusion with downward migration at L5-S1 which was narrowing the left lateral recess and impinging on the left S1 nerve root, as well as minimal degenerative disc disease with borderline acquired spinal canal stenosis at L4-L5. The VA clinician concluded that the Veteran had an extruded disc fragment on the left at the L5-S1 level that had migrated caudally behind the S1 epiphysis on the left with some mild displacement of the left S1 nerve root; this had produced a left S1 radiculitis that was chronic with some mild S1 radiculopathy due to a herniated disc fragment compressing on the S1 nerve root. Based on this assessment, the Veteran was offered a surgical left L5-S1 discectomy, but the Veteran did not wish to pursue surgery. The doctor noted, however, that it was likely that the left leg problem would likely resolve on its own with time, although it might take several months to a year. The Veteran was afforded another VA examination in December 2008. He reported increased pain and stiffness since the last VA examination. He reported daily back pain that was worsened with lifting and prolonged standing. He said that the pain occasionally radiated down the posterior left thigh and calf in an L5-S1 distribution. He denied any persistent neurologic deficit from the radiculopathy. He denied any weakness of the back with flare-ups, and said that flexion was limited to 20 degrees following back pain flare-ups. Moreover, during flare-ups at work, he worked through the pain and took Advil or Flexeril, with ease of symptoms over a few hours. His functional restrictions included limitation with lifting and standing. He said he did not use a cane or brace, nor had he been incapacitated in the past year due to back pain. He received one tender point injection in the past year, which helped. On physical examination in December 2008, the Veteran walked with a slow but normal gait. The spinous processes aligned normally in the lumbar spine. There was mild spasm and tenderness to palpation in the lumbar spine. Flexion was to 50 degrees, extension to 5 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 35 degrees bilaterally, all with pain at the extreme ranges of motion in all directions. There was no additional weakness, fatigability, discoordination, additional restricted range of motion, or functional impairment following repetitive stress testing against resistance times three. Motor strength was five out of five in the lower extremities, there was no atrophy, and sensory examination was normal in both legs. The VA examiner assessed degenerative joint and degenerative disc disease of the lumbar spine with a disc protrusion, intermittent left leg S1 radiculopathy, and a normal neurologic examination. Based upon these findings and the lay evidence of record, the Board finds the assignment of an initial rating in excess of 20 percent for a lumbar spine disability is not warranted for any period, as the requirements of forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome of at least 4 weeks in duration, have not been met or more nearly approximated at any time during the rating period on appeal. 38 C.F.R. § 4.71a, DCs 5235-5243. Ankylosis, either favorable or unfavorable, is not demonstrated by the evidence. In addition, flexion, at worst, has been limited to 50 degrees, even with pain, resistance, and following repetition. In reaching its finding that the evidence did not show flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine for any period, the Board has considered any additional functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint in determining that a rating in excess of 20 percent is not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. Here, the Board notes the objective evidence of pain on range of motion testing at the December 2008 VA examination, the Veteran's statement at the December 2008 VA examination that his flexion was limited to 20 degrees during flare-ups, and has considered additional limitations of motion due to pain or other orthopedic factors as limiting motion where the pain begins or where the evidence shows such factors limit functional use. See VAOPGCPREC 9-98 (painful motion is considered limited motion at the point that the pain actually sets in). In this case, the December 2008 VA examiner noted objective evidence of pain on active range of motion testing, but that function and motion were not additional limited with resistance and after repetition; thus, even if the pain on flexion is taken into consideration, the range of motion measurements still do not meet the criteria for the next higher rating category. Indeed, the flexion measurement of 50 degrees recorded at the December 2008 VA examination following repetition and application of resistance is well within the range of motion criteria for the currently assigned 20 percent rating. The specific clinical measures of ranges of motion, including examiner's findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's statement that his flexion was limited to 20 degrees during flare-ups. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (flexion to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine) such as to enable a finding that the disability picture more nearly approximates the next-higher, 40 percent, evaluation under the General Rating Formula for Diseases and Injuries of the Spine. As discussed above, the criteria for the currently-assigned 20 percent evaluation under the General Rating Formula for Diseases and Injuries of the Spine is 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. Thus, based on the above findings, the preponderance of the evidence demonstrates the criteria for an initial evaluation higher than 20 percent are not met, as range of motion findings, even after repetition, do not meet the criteria for the next-higher, 40 percent, rating category - flexion to 30 degrees or less - even when taking into account additional loss of motion due to DeLuca factors. Even with such factors, the evidence does not show either favorable or unfavorable ankylosis of the thoracolumbar spine. For these reasons, the Board finds that an initial disability rating in excess of 20 percent is not warranted for any period. Next, the Board has considered whether an initial rating in excess of 20 percent is warranted under Diagnostic Code 5243 based on incapacitating episodes. As previously mentioned, Diagnostic Code 5243 deals with IVDS, which can include degenerative disc disease. However, in order to meet the criteria for a compensable rating under this diagnostic code, the evidence must show that a physician ordered bed rest to treat the disorder. In this case, the Veteran denied incapacitating episodes at the December 2008 VA examination, reported that he had only missed two days of work in the last year due to back pain at the May 2008 VA examination, and there are no physician's orders or other evidence in the claims file that the Veteran's doctors prescribed bed rest; therefore, he does not meet the criteria for a higher rating under DC 5243. The Board has also considered whether any alternate diagnostic codes might serve as a basis for an increased rating. In this regard, the RO rated the Veteran's back disability under Diagnostic Code 5242, which addresses degenerative arthritis of the spine. Disabilities evaluated under this code are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, as discussed above. However, Diagnostic Code 5242 is related to DC 5003, which also addresses degenerative arthritis. In this case, the maximum evaluation possible under DC 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Thus, it does not allow for a higher evaluation. There are no other applicable codes available for consideration. The Board has also contemplated whether any separate evaluations are applicable here for additional disability or neurological disorders associated with the service-connected back disability. The Veteran is already in receipt of a separate rating for left leg radiculopathy, the appropriate disability rating of which is discussed below, and there is no evidence of any other neurological deficits. Therefore, a separate rating for neurological symptoms beyond the already service-connected left leg radiculopathy is not warranted. For these reasons, the Board finds that the weight of the evidence is against a finding of an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine for any period. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Radiculopathy Rating Analysis The Veteran is in receipt of a 10 percent rating for his service-connected left leg radiculopathy for the entire initial rating period on appeal. He contends that he is entitled to a higher initial rating. Specifically, he avers that his pain results in additional functional limitation, which warrants a rating in excess of 10 percent. After a review of all the evidence, lay and medical, the Board finds that a weight of the evidence is against the claim for an initial evaluation in excess of 10 percent for service-connected left leg radiculopathy for the entire initial rating period on appeal. Throughout the initial rating period, even with considerations of additional limitations of motion and function due to pain and other limiting factors, the Veteran's service-connected left leg radiculopathy did not manifest at least moderate incomplete paralysis, as required for an evaluation in excess of 10 percent under the Schedule of Ratings for Diseases of the Peripheral Nerves. 38 C.F.R. § 4.124a. Most of the relevant medical evidence has been summarized above. However, in addition, the Veteran was afforded a VA neurological examination in January 2009. He reported burning pain in the sciatic distribution of the left leg to the lower calf. He stated he was not able to walk more than fifteen minutes before he had to stop due to pain in his left leg. The pain improved temporarily with chiropractic treatment, but since stopping the chiropractic therapy, he had experienced increasing problems. On physical examination, gait was abnormal in that he walked with a limp, favoring the left leg. Deep tendon reflexes were 1+ and equal in both legs. Straight-leg raising was strongly positive on the left at 20 degrees, but negative on the right. The VA examiner was unable to find any definite loss of pain, touch, or probe perceptive sensation in the left leg. The Veteran did have weakness of dorsiflexion of the left foot, demonstrated by attempted heel-and-toe walking. Strength was four out of five in the left leg as compared to five out of five on the right. The VA examiner assessed radiculopathy of the left leg in the sciatic distribution. After reviewing the lay and medical evidence relevant to the initial rating period on appeal, the Board finds that the weight of the evidence is against a grant of a rating in excess of 10 percent for left leg radiculopathy. This Veteran's incomplete paralysis of the sciatic nerve cannot be characterized as more than mild for any part of the initial rating period on appeal, so as to warrant a rating higher than 10 percent under Diagnostic Code 8520, based on the evidence outlined above. Namely, throughout the rating period, the Veteran reported intermittent numbness and pain in the left leg. The December 2008 VA examiner assessed intermittent left leg radiculopathy and neurologic evaluation was normal. In July 2008, a VA clinician assessed mild radiculopathy. Moreover, despite the Veteran's report of difficulty walking more than fifteen minutes, he has been able to continue working and performing activities of daily living. Based on this evidence, the Board finds that, for the entire initial rating period on appeal, the Veteran's incomplete paralysis of the sciatic nerve has not been more than mild in severity, even with consideration of the Veteran's complaints of pain, so an initial rating higher than 10 percent is not warranted under Diagnostic Code 8520. 38 C.F.R. § 4.124a. The Board has also considered whether any other diagnostic code would allow for a higher initial rating for the Veteran's left leg radiculopathy. However, neurological deficits have been limited to the left sciatic nerve distribution, and there has been no other indication of any other nerve involvement in the Veteran's left leg disability. Based upon the foregoing, the Board finds that the criteria for an initial rating for left leg radiculopathy in excess of 10 percent have not been met for any part of the period on appeal. In reaching this conclusion, the benefit-of-the-doubt doctrine has been considered, but the preponderance of the evidence is against the claim for a higher initial rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In addition to the foregoing, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's GERD, irritable bowel syndrome, lumbar spine, and left leg disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Veteran's GERD and irritable bowel syndrome have manifested abdominal pain, diarrhea, and occasional nausea and vomiting. These symptoms are specifically contemplated by the rating criteria for disabilities of the digestive system, and, in fact, provide for higher ratings for symptoms worse than those reflected by the evidence in this case. See 38 C.F.R. § 4.114. In this case, comparing the Veteran's disability level and symptomatology of the digestive system to the rating schedule, the degree of disability of the digestive system throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings for GERD and irritable bowel syndrome are, therefore, adequate. Next, the Veteran's lumbar spine disability has manifested in arthritis, disc disease, and painful movement. The schedular criteria for rating the lumbar spine disability (General Rating Formula for Diseases and Injuries of the Spine) specifically provide for ratings based on the presence of painful arthritis; limitations of motion of the spine (including due to pain and other orthopedic factors; see 38 C.F.R. §§ 4.40 , 4.45, 4.59; see also DeLuca); other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. In this case, comparing the Veteran's disability level and symptomatology of the lumbar spine to the rating schedule, the degree of disability of the lumbar spine throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. Finally, the Veteran's left leg radiculopathy has manifested in pain, numbness, and weakness. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provide ratings for incomplete paralysis of the sciatic nerve (Diagnostic Code 8520, 38 C.F.R. § 4.124a), and contemplate ratings based on limitation of motion due to orthopedic factors such as pain and weakness (38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca). In this case, comparing the Veteran's disability level and symptomatology of left leg radiculopathy to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with GERD, irritable bowel syndrome, and the lumbar spine and left leg disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial evaluation in excess of 30 percent for GERD is denied. A separate 30 percent disability evaluation for irritable bowel syndrome is granted. An initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. An initial evaluation in excess of 10 percent for left leg radiculopathy is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs