Citation Nr: 1305339 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-19 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for protruding disc of the lumbar spine, status-post discectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to June 1985, February 1990 to June 1990, and March 1999 to June 2008. He also had prior Army Reserve service. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Waco, Texas, which, in pertinent part, granted the Veteran's claim of entitlement to service connection for a protruding disc of the lumbar spine, status-post discectomy, and assigned a 10 percent disability rating, effective June 18, 2008. In December 2010, the Veteran testified before a Decision Review Officer during a hearing at the Waco RO. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this claim. In April 2012, the claim was remanded to the Agency of original jurisdiction ("AOJ") to afford the Veteran a new VA spine examination. Thereafter, in a November 2012 Supplemental Statement of the Case ("SSOC"), the VA Appeals Management Center continued the 10 percent disability rating. The claims folder has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's protruding disc of the lumbar spine, status-post discectomy, has been manifested by no greater than subjective complaints of pain and stiffness without ankylosis, incapacitating episodes, tenderness to palpation, guarding, appreciable muscle spasms, abnormal gait or abnormal spinal contour, with forward flexion of the thoracolumbar spine not less than 70 degrees, extension of the thoracolumbar spine not less than 20 degrees, bilateral lateral flexion of the thoracolumbar spine not less than 25 degrees, and bilateral lateral rotation of the thoracolumbar spine not less than 30 degrees. 2. Throughout the entire period on appeal, the impairment caused by radiculopathy involving the lower extremities that has been associated with the Veteran's service-connected low back disability, has most closely approximated moderate incomplete paralysis of the sciatic nerve on the left and mild incomplete paralysis of the sciatic nerve on the right. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for an evaluation in excess of 10 percent for the Veteran's protruding disc of the lumbar spine, status-post discectomy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.45, 4.71a, Diagnostic Code 5237 (2012). 2. A rating of 20 percent, but no higher, for left lower radiculopathy extremity is warranted throughout the period of the claim. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2012). 3. A rating of 10 percent, but no higher, for right lower extremity radiculopathy is warranted throughout the period of the claim. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. For initial rating claims, where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven; therefore, 38 U.S.C.A. § 5103(a) notice is no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Veteran was provided notice of the VCAA via a letter dated in June 2008. This letter informed him of the types of information and evidence necessary to substantiate his initial service connection claim, as well as the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The letter also provided the Veteran with information concerning how VA establishes the effective date and disability rating elements of a claim, thus satisfying Dingess. The claim was subsequently readjudicated in a March 2010 Statement of the Case ("SOC") and a November 2012 SSOC. B.) Duty to Assist The Board is satisfied that the VA duty to assist has been met. The claims folder contains the Veteran's service treatment records and VA spinal examination reports dated February 2010 and May 2012. The claims file also contains the Veteran's statements in support of his claim, including a transcript of his December 2010 hearing before a Decision Review Officer. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the VA examination reports shows that the VA examiners reviewed the complete claims folder, performed comprehensive physical examinations, interviewed the Veteran concerning his associated complaints and symptomatology, reviewed diagnostic test results, and provided detailed examination findings in the examination reports. Accordingly, the Board concludes that the examination reports are adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (2012). It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. With regard to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (2012). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The Court has held that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination, or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); 38 C.F.R. § 4.40. Furthermore, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). The Board notes that the words "slight," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, so that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). VA regulations provide a General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes) 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 as follows: For unfavorable ankylosis of the entire spine (100 percent); For unfavorable ankylosis of the entire thoracolumbar spine (50 percent); For unfavorable ankylosis of the entire cervical spine, or forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); For forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine (30 percent); For forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or the combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); and For forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 (10 percent). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or 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. 68 Fed. Reg. 51,443, Note (5) (Aug. 27, 2003). When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. Id., Note (1). 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. Id., Note (2); see 38 C.F.R. § 4.71a, Plate V. 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. 68 Fed. Reg. 51,443, Note (2) (Aug. 27, 2003). The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, disability is evaluated as follows: With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, assignment of a 60 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, assignment of a 40 percent evaluation is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, assignment of a 20 percent evaluation is warranted. With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, assignment of a 10 percent evaluation is warranted. The notes for rating intervertebral disc syndrome under this regulation state as follows: Note (1): an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). The Veteran's low back disability has been evaluated under DC 5237, lumbosacral or cervical strain although service connection has been established for a protruding disc of the lumbar spine and he is status post discectomy. He avers that the symptoms from his disorder are of greater severity than the current 10 percent rating contemplates. Review of the Veteran's service treatment records shows that in June 2003, he was treated for chronic low back pain with L5/S1 protruding disc. In February 2005, he underwent an L5/S1 discectomy with temporary resolution of pain, which later returned. During a May 2006 MRI, the Veteran was diagnosed with left neural foraminal narrowing. During an August 2006 physical evaluation board proceeding, the Veteran's thoracolumbar spine forward flexion was 70 degrees and his combined range of motion was 207 degrees. In December 2007, during another physical evaluation board, the Veteran's forward flexion of the thoracolumbar spine was 67 degrees, extension was 25 degrees, left lateral flexion was 26 degrees, right lateral flexion was 25 degrees, and bilateral lateral rotation was 30 degrees. In April 2008, he underwent surgical implantation of a spinal cord stimulator (TENS unit) for chronic low back pain. He was medically-separated from service in June 2008. In February 2010, the Veteran was afforded a VA spine examination, at which time, he denied experiencing low back pain. He endorsed some numbness in the lower left leg and third and fourth toes of the left foot, as well as stiffness that occasionally traveled to the right buttock, posterior thigh and knee. He further denied additional limitation with flare-ups, incapacitating episodes in the past year, and urinary or fecal incontinence. He also said that he was not taking any medications to treat his low back disorder and that the condition did not interfere with his daily activities. During the examination, a neurological evaluation demonstrated findings within normal limits without evidence of foot drop, muscle spasm or atrophy. The Board notes, however, that deep tendon reflexes were 1+. There was normal pinprick testing and normal strength in the lower extremities but slight decreased pinprick sensation in the left lateral calf. Motor skills were normal. Forward flexion of the spine was to 90 degrees without pain, extension was to 25 degrees without pain, bilateral lateral flexion was to 25 degrees without pain, and bilateral lateral rotation was to 25 degrees without pain. There was no evidence of weakness, fatigue or incoordination with active range of motion and no additional loss of range of motion after repetition. The Veteran also presented with a normal gait. An x-ray revealed degenerative disc disease at the L5/S1 level with osteophytes. The diagnosis was degenerative disc disease at L5/S1, status-post discectomy, and pain stimulator implant with chronic stiffness, occasional pain in right buttock and right posterior thigh to back of right knee. In December 2010, during his RO hearing, the Veteran complained that his back disability severely limited his activities, primarily athletics, including horseback riding, running and jet skiing. He also said the condition affected his employment as a satellite television installer due to his limited mobility when working in the attics of his customers. He also expressed dissatisfaction with the VA examination because he felt it did not adequately describe his pain. Specifically, he stated that without his pain stimulator implant, he would have constant severe pain. In May 2012, the Veteran was afforded a second VA examination, at which time, he was described by the examiner as being "in no apparent distress." He reported experiencing pain rated from zero to 10 in the low back bilaterally with radiation to the legs, the left side greater than the right. He denied taking medications or using any assistive devices for ambulation. He said his activities of daily living were limited when he experienced increased pain, but said he could generally perform basic activities of daily living without assistance. He added that he was now experiencing increased pain because he was a student and had to carry heavy bags full of books. He reported experiencing flare-ups about once every two months, which he said caused him to seek bed rest. During the physical evaluation, forward flexion was normal at 90 degrees, with pain at 80 degrees; extension was to 20 degrees without pain; bilateral lateral flexion was normal at 30 degrees without pain; and bilateral lateral rotation was normal at 30 degrees without pain. After repetition, the Veteran was able to perform all range of motion movements without additional loss of motion or functional loss. Muscle strength testing was normal without evidence of atrophy, and there was no localized tenderness or pain to palpation, or guarding or muscle spasm. His gait was normal without evidence of foot drop, but there was some left-sided weakness and a decrease of sharp/dull sensation on the left calf and foot. Deep tendon reflexes were absent in the ankles, bilaterally. Straight leg raising was negative. The examiner stated further, that the Veteran did have evidence of radiculopathy in the form of mild paresthesias and/or dyesthesias in the left lower extremity; moderate intermittent pain in the left lower extremity and mild intermittent pain in the right lower extremity; and moderate numbness in the left lower extremity. The examiner indicated that there was involvement of L4/L5/S1/S2/S3 nerve roots on the left. He concluded that the Veteran had mild radiculopathy on the right side and moderate radiculopathy on the left side. There were no other neurologic abnormalities. Although the examiner checked the box indicating that the Veteran did not have intervertebral disc syndrome, the prior VA examiner in February 2010 diagnosed degenerative disc disease; service connection has been established for a herniated disc; and radiculopathy of the lower extremities was shown on clinical examination. The examiner also noted that there was a small scar on the lower back from the Veteran's surgery, but it was neither painful, nor unstable, and did not cover a total area greater than 39 square centimeters. The examiner opined that the Veteran's disability did not affect his ability to work, as the Veteran now reported that he was a full-time student. The claims folder contains no private or VA treatment reports, as the Veteran indicated that he is not currently receiving treatment for his back disability. III. Analysis Based on a review of the evidence of record, the Board finds that the criteria for a disability evaluation in excess of the current 10 percent rating under DC 5237 for the Veteran's protruding disc of the lumbar spine, status-post discectomy, have not been met at any time during the current appeal period. As noted above, throughout the course of the appeal, the Veteran's disability has been manifested by no greater than subjective complaints of pain and stiffness without ankylosis, incapacitating episodes, tenderness to palpation, guarding, appreciable muscle spasms, abnormal gait or abnormal spinal contour, with forward flexion of the thoracolumbar spine not less than 70 degrees, extension of the thoracolumbar spine not less than 20 degrees, bilateral lateral flexion of the thoracolumbar spine not less than 25 degrees, and bilateral lateral rotation of the thoracolumbar spine not less than 30 degrees. In addition, although the Veteran reported that he sought bed rest when he experienced flare-ups approximately six times per year, as discussed above, incapacitating episodes are only applicable when physician-prescribed and the Veteran has reported that he has not been under a physician's care during the pendency of this appeal. The Board further observes that, throughout the appeal period, there has been no evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Moreover, although the Veteran has consistently complained of chronic low back pain throughout the appeal period, it is noted that the General Rating Formula for Diseases and Injuries of the Spine specifically requires the aforementioned criteria, with or without symptoms such as pain (whether or not it radiates), stiffness or aching. Accordingly, the Veteran's complaints of continuing pain are not enough to warrant an increased disability evaluation under DC 5237. Moreover, because there has been no evidence of 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 higher, 20 percent rating is not available under any diagnostic code under the General Rating Formula for Diseases and Injuries of the Spine. As noted above, however, the Board must also consider whether a separate rating is warranted for any associated neurologic abnormalities. In this regard, the Board notes that on VA examination in February 2010, the examiner, in pertinent part, rendered a diagnosis of degenerative disc disease at L5-S1, status post discectomy with chronic stiffness, occasional pain in the right buttocks and right posterior thigh to the back of the right knee. Further, on more recent VA examination in May 2012, the examiner found that the Veteran had mild radiculopathy on the right and moderate radiculopathy on the left. Thus, under the provisions of DC 8520 as set forth above, the Veteran is entitled to a separate 10 percent disability evaluation for right lower extremity radiculopathy and a separate 20 percent disability evaluation for left lower extremity radiculopathy as neurological manifestations of his service-connected low back disability. No other neurological impairment related to the Veteran's service-connected low back disorder is shown by the record. With regard to assigning a higher disability rating based on functional loss as contemplated by the Court's holding under DeLuca, the Board has considered the Veteran's continuous reports of chronic low back pain. See DeLuca v. Brown, supra. In this regard, however, the Board observes that there is no medical evidence showing that the Veteran's low back pain has had a significant effect on either his occupational or activities of daily living greater than that contemplated by the current ratings. See Francisco v. Brown, supra. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his low back condition. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Medical evidence is generally required to address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 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). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board concludes that the Veteran's service-connected protruding disc of the lumbar spine, status-post discectomy, is not so unusual or exceptional in nature as to render the assigned schedular rating inadequate. There is no evidence that his disability has caused marked interference with employment or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The Veteran's disability has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by his disability. Higher ratings are available for greater levels of disability and increased symptoms. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). In summary, the Board concludes that a preponderance of the evidence of record is against the Veteran's claim for a higher rating for the orthopedic manifestations of the Veteran's service-connected protruding disc of the lumbar spine, status-post discectomy, but the evidence supports separate ratings for bilateral lower extremity radiculopathy associated with that low back disorder. ORDER An initial disability rating in excess of 10 percent for protruding disc of the lumbar spine, status-post discectomy, is denied. A separate 10 percent rating, but not higher, for radiculopathy of the right lower extremity, associated with protruding disc of the lumbar spine, status-post discectomy, is granted, subject to the criteria applicable to the payment of monetary benefits. A separate 20 percent rating, but not higher, for radiculopathy of the right lower extremity, associated with protruding disc of the lumbar spine, status-post discectomy, is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs