Citation Nr: 1303906 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 08-30 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial compensable rating for degenerative disc disease of the lumbar spine, prior to August 7, 2010. 2. Entitlement to a rating higher than 10 percent for degenerative disc disease of the lumbar spine, from August 7, 2010 to February 14, 2012. 3. Entitlement to a rating higher than 40 percent for degenerative disc disease of the lumbar spine, from February 14, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran & M.W. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from July 1999 to July 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran requested a hearing before the Board. The requested hearing was conducted in September 2011 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In a November 2010 rating decision, the RO granted an increased evaluation of 10 percent for degenerative disc disease, effective August 7, 2010. In a September 2010 rating decision, the RO granted an increased evaluation of 40 percent for degenerative disc disease, effective February 14, 2012. Despite the grant of these increased evaluations, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the ratings. A.B. v. Brown, 6 Vet. App. 35 (1993). In December 2011, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. The Board notes that this appeal originally included entitlement to service connection for a cervical strain. This issue was granted in a September 2012 rating decision, and as such, is no longer on appeal. The Board notes that, in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not raised a claim for TDIU and the evidence does not indicate that he is unemployable due to his service-connected disabilities. See February 2012 VA examination. Accordingly, the Board finds that Rice is not applicable in this case. FINDINGS OF FACT 1. Prior to August 7, 2010, resolving all reasonable doubt in the Veteran's favor, the Veteran's degenerative disc disease is manifested by painful, limited range of motion during periods of flare-ups. 2. The Veteran's degenerative disc disease is productive of radiculopathy of the right lower extremity. 3. From August 7, 2010 to February 14, 2012, the Veteran's degenerative disc disease was not manifested by a forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion 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. 4. From February 14, 2012, the Veteran's degenerative disc disease was not manifested by unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to August 7, 2010, the criteria for an initial disability rating of 10 percent, but no higher, for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). 2. For the entire appeal period, the criteria for a separate 10 percent rating, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.957, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124a; Diagnostic Code 8520 (2012). 3. From August 7, 2010 to February 14, 2012, the criteria for a rating higher than 10 percent rating degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.957, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). 4. From February 14, 2012, the criteria for a rating higher than 40 percent rating degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.957, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71(a), Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). The Veteran's claims for increased ratings arise from his disagreement with the initial evaluations following the grant of service connection. It has been held that once service connection is granted, the claim is substantiated and additional notice is not required. Any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records, post-service medical records with the claims folder. Additionally, the Veteran was afforded VA examinations. Virtual VA records have also been reviewed and include treatment records. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims. II. Increased Ratings The Veteran is seeking an increased rating for his degenerative disc disease of the lumbar spine. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when 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, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the entire record, including the Veteran's treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Board notes that while the regulations pertaining to disabilities of the spine have undergone recent amendments, these changes do not affect the present claim, as the Veteran's claim was filed in August 2007, subsequent to the most recent regulation change. Thus, the rating criteria currently in effect, the General Rating Formula for Diseases and Injuries of the Spine, are the only rating criteria for current consideration. Under the General Rating Formula for Diseases and Injuries of the Spine, a rating of 10 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or a combine 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 height. 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine (2012). A rating of 20 percent is warranted when there 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 is 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. Id. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a rating of 100 percent is warranted for unfavorable ankylosis of the entire spine. Id. Any neurologic abnormalities, including but not limited to bowel or bladder impairment are to be evaluated separately under the appropriate diagnostic codes. See Note (1). A. Entitlement to an Initial Compensable Rating for Degenerative Disc Disease of the Lumbar Spine, Prior to August 7, 2010 The Veteran's low back disability is rated noncompensably, prior to August 7, 2010. He is seeking an increased rating. The Veteran was afforded a VA examination in June 2008. The Veteran complained of low back pain and increased pain when sitting for a prolonged time. He reported he is unable to pick up anything or do rapid twisting. The Veteran also reported intermittent pain down the posterior aspect of his right leg with prolonged sitting. Examination revealed no tenderness to palpation. The Veteran's range of motion was 90 degrees of flexion, 30 degrees of extension, 30 degrees of right and left lateral flexion, and 30 degrees of right and left lateral rotation. The combined range of motion was to 240 degrees. The examiner noted there was mild pain with flexion only that day throughout the arcs of motion. Pain was not made worse and range of motion was not decreased with repetitions. The Veteran had a positive straight leg raise on the right and negative straight leg on the left. An x-ray of the lumbar spine was normal. The examiner noted that there was pain on range of motion testing at the time and it is conceivable that pain could further limit function; however, it was not feasible to attempt to express the limitation of motion in degrees. The examiner noted that the Veteran had L5-S1 radiculopathy and degenerative disc disease. The Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends his disability is essentially manifested by pain. Under 38 C.F.R. § 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). For a 10 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited between 60 to 85 degrees, or have a combined range of motion between 120 to 235 degrees. The Board notes that during the June 2008 VA examination, the Veteran's forward flexion was limited to 90, and his combined range of motion was 240 degrees. However, the Board notes that the June 2008 VA examiner stated the Veteran experienced pain throughout his range of motion and that pain could further limit the Veteran's functioning. Thus, the Board finds that a 10 percent evaluation, considering the principles of 38 C.F.R. § 4.40 and 4.45, appropriately contemplates the degree of limited range of motion that exists during periods of exacerbation. A rating higher than 10 percent is not warranted because the evidence does not indicate that the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 20 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. However, there has been no documentation of incapacitating episodes requiring bed rest prescribed by a physician in the post-service medical records. For these reasons, a higher rating is based on intervertebral disc syndrome is not warranted. The current regulations also allow for separate neurological evaluations. During the VA examination, the examiner noted intact motor strength and sensation in the lower extremities. In addition, the Veteran reported no bowel or bladder dysfunction. However, the Board notes that during the June 2008 VA examination, the examiner indicated that the Veteran had L5-S1 radiculopathy with a positive straight leg raise of the right leg. Resolving any doubt in the Veteran's favor, the Board finds that the medical and lay evidence supports his entitlement to a separate 10 percent rating, and no more, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for radiculopathy of the right lower extremity. A rating higher than 10 percent is not warranted, as there is no evidence that the Veteran experienced moderate radiculopathy of the right lower extremity. Other medical evidence of record includes complaints and treatment of low back pain. This evidence supports the diagnosis of degenerative disc disease but does not provide a basis to warrant ratings higher than 10 percent, prior to August 2010. The Board has also considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings for the spine and nerves are the most appropriate. In summary, the Board finds that prior to August 7, 2010, the Veteran is entitled to an initial rating of 10 percent for his degenerative disk disease of the lumbar spine and a separate rating of 10 percent for his right leg radiculopathy. B. Entitlement to a Rating Higher Than 10 Percent for Degenerative Disc Disease of the Lumbar Spine, from August 7, 2010 to February 14, 2012 In a November 2010 rating decision, the RO granted a 10 percent rating for the Veteran's lumbar spine disability, effective August 7, 2010. The Veteran was afforded a VA examination in August 2010. The Veteran reported low back pain and pain that radiates down the posterior aspect of his right thigh, down to just above the knee. Examination revealed the Veteran's range of motion was 80 degrees of flexion without pain, 40 degrees of extension without pain, 30 degrees of right and left lateral flexion without pain, and 30 degrees of right and left lateral rotation, without pain. The combined range of motion was to 240 degrees. There was no change in the range of motion with repetitions. The Veteran had tenderness over the midline of the lumbar spine, which was mild, and no paraspinal musculature tenderness, spasming, skin changes or swelling. Straight leg raise on the right demonstrated some reproduction of his posterior thigh pain, but it did not extend out past his knee into his calf or foot. There was normal sensation to light touch and pinprick. The Veteran testified in September 2011 that he experiences low back pain and muscle spasms in his back. See September 2011 BVA Hearing Transcript, page 12. Additionally, the Veteran's spouse testified that the Veteran uses several canes and experiences low back pain when sitting for prolonged periods or when attempting to pick up things. See September 2011 BVA Hearing Transcript, page 14. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's testimony to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, the Board finds that the totality of evidence indicates that the Veteran does not meet the criteria to warrant a rating higher than 10 percent for this time period. The Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends his disability is essentially manifested by pain. Under 38 C.F.R. § 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). For a 20 percent evaluation, forward flexion of the thoracolumbar spine must be actually or functionally limited between 30 and 60 degrees, or have a combined range of motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait. The Board notes that during the August 2010 VA examination, the Veteran's forward flexion was limited to 80, and his combined range of motion was 240 degrees. The Veteran also had a normal gait. Thus, the Board finds that the current 10 percent evaluation, even considering the principles of 38 C.F.R. § 4.40 and 4.45, appropriately contemplates the degree of limited range of motion that exists during periods of exacerbation. A rating higher than 10 percent is not warranted because the evidence does not indicate that the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 20 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. However, there has been no documentation of incapacitating episodes requiring bed rest prescribed by a physician in the post-service medical records. For these reasons, a higher rating is based on intervertebral disc syndrome is not warranted. The current regulations also allow for separate neurological evaluations. During the VA examination, the examiner noted intact motor strength and sensation in the lower extremities. In addition, the Veteran reported no bowel or bladder dysfunction. The Board notes that as a result of this decision, the Veteran has been granted a separate 10 percent rating for his right leg radiculopathy. A rating higher than 10 percent is not warranted as there is no evidence that the Veteran experienced moderate radiculopathy of the right leg. Sensation was intact to pinprick and light touch and reflexes were also intact. Other medical evidence of record includes complaints and treatment of low back pain. This evidence supports the diagnosis of degenerative disc disease but does not provide a basis to warrant ratings higher than 10 percent, from August 2010 to February 2012. The Board has also considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings for the spine and nerves are the most appropriate. In summary, the Board finds that from August 7, 2010 to February 2012, the Veteran's currently assigned 10 percent rating are commensurate with the symptoms manifested during that time period. C. Entitlement to a Rating Higher Than 40 Percent for Degenerative Disc Disease of the Lumbar Spine, from February 14, 2012 In a September 2010 rating decision, the RO granted a 40 percent rating for the Veteran' degenerative disc disease of the lumbar spine, effective February 14, 2012. The Veteran was afforded a VA examination in February 2012. He reported pain in his upper lumbar area with stiffness and no spasms. He reported that during flare-ups is unable to do anything due to pain. Examination revealed the Veteran's range of motion was 30 degrees of flexion without pain, 15 degrees of extension without pain, 10 degrees of right lateral flexion with pain at 5 degrees, 15 degrees of left lateral flexion without pain, 20 degrees of right lateral rotation, without pain, and 25 degrees of left lateral rotation, without pain. The combined range of motion was to 115 degrees. There was no change in the range of motion with repetitions. The Veteran did not have localized tenderness or pain to palpation on the thoracolumbar spine and no guarding or muscle spasm. Sensory examination was normal. Right and left straight leg raising were negative. The examiner noted that the Veteran had radiculopathy of the right lower extremity with moderate pain, paresthesia, and numbness. The examiner indicated that the severity of the radiculopathy was mild in the right leg and the left leg was not affected. The Board finds that the totality of evidence indicates that the Veteran does not meet the criteria to warrant a rating higher than 40 percent for this time period. The Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends his disability is essentially manifested by pain. Under 38 C.F.R. § 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). For a 50 percent evaluation, there must be unfavorable ankylosis of the entire thoracolumbar spine. The Board notes that during the February 2012 VA examination, the Veteran's range of motion was limited; however, there was not unfavorable ankylosis of the entire thoracolumbar spine. Thus, the Board finds that the current 40 percent evaluation, even considering the principles of 38 C.F.R. § 4.40 and 4.45, appropriately contemplates the degree of limited range of motion that exists during periods of exacerbation. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 60 percent where there is intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. However, there has been no documentation of incapacitating episodes requiring bed rest prescribed by a physician in the post-service medical records. For these reasons, a higher rating is based on intervertebral disc syndrome is not warranted. The current regulations also allow for separate neurological evaluations. During the VA examination, the sensory examination was normal. Right and left straight leg raising were negative. The examiner noted that the Veteran had radiculopathy of the right lower extremity with moderate pain, paresthesia, and numbness. However, the examiner indicated that the severity of the radiculopathy was mild in the right leg and the left leg was not affected. The Board notes that as a result of this decision, the Veteran has been granted a separate 10 percent rating for his right leg radiculopathy. A rating higher than 10 percent is not warranted as there is no evidence that the Veteran experienced moderate radiculopathy of the right leg. In addition, the Veteran reported no bowel or bladder dysfunction. Therefore, the Board finds that a separate neurological rating is not warranted. Other medical evidence of record includes complaints and treatment of low back pain. This evidence supports the diagnosis of degenerative disc disease but does not provide a basis to warrant ratings higher than 40 percent, from February 14, 2012. The Board has also considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings for the spine and nerves are the most appropriate. In summary, the Board finds that from February 14, 2012, the Veteran's currently assigned 40 percent rating are commensurate with the symptoms manifested during that time period. D. Extraschedular Evaluations The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's lumbar disability is inadequate. A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule shows that the rating criterion reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Additionally, there is no evidence in the medical records of an exceptional or unusual clinical picture. Evidence also indicates that the Veteran is employed. In short, there is nothing in the record to indicate that the disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Prior to August 7, 2010, an initial rating of 10 percent, but no higher, for degenerative disc disease of the lumbar spine is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. For the entire appeal period, entitlement to a separate rating of 10 percent, but no higher, for the Veteran's right leg radiculopathy is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. From August 7, 2010 to February 14, 2012, a rating higher than 10 percent for degenerative disc disease of the lumbar spine is denied. From February 14, 2012, a rating higher than 40 percent for degenerative disc disease of the lumbar spine is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs