Citation Nr: 1305887 Decision Date: 02/20/13 Archive Date: 02/27/13 DOCKET NO. 02-01 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial rating for a lumbar spine disability in excess of 20 percent prior to March 27, 2001. 2. Entitlement to a rating for a lumbar spine disability in excess of 40 percent for the period from March 27, 2001 through September 9, 2004. 3. Entitlement to a rating for a lumbar spine disability in excess of 20 percent for the period beginning September 10, 2004. 4. Entitlement to a separate compensable rating for radiculopathy of the right lower extremity secondary to a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active military service from April 1969 to July 1971. This case initially came to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal comes from the initial zero percent evaluation assigned for the Veteran's service-connected low back disability. Review of the record shows that the appellant was awarded service connection on the basis that a low back disorder was aggravated by his service-connected right knee disability. In a February 2005 rating decision, the RO assigned a 20 percent disability rating for the lumbar spine disability effective August 27, 1991. In a July 2006 decision, the Board denied a rating in excess of 20 percent for the low back disability. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to an April 2007 Order, following an appellee's motion for remand. In an August 2007 decision, the Board denied an initial rating in excess of 20 percent for a low back disorder for the period prior to March 27, 2001; granted a 40 percent rating for the period from March 27, 2001 to September 9, 2004; and denied a rating in excess of 20 percent rating thereafter. In September 2007, the RO effectuated the Board's decision. The Veteran appealed the Board's decision to the Court. In an April 2009 memorandum decision, the Court vacated the Board's decision and remanded the matter. The Board notes that although the Court vacated the entire Board decision, in a September 2007 rating decision, the RO, in pertinent part, effectuated the Board's decision that granted an increased 40 percent rating for the period from March 27, 2001 to September 9, 2004. Nothing done by the Board in this document or subsequent decision should be taken to complicate that award. In August 2010, September 2011, and October 2012, the Board remanded this matter for further development. The Board notes that a Supplemental Statement of the Case was not issued following the most recent Board remand, and the October 2012 VA examination report has not been considered by the RO. Nevertheless, the Veteran submitted two waivers, both dated in December 2012, waiving additional consideration of the claim by the RO. FINDINGS OF FACT 1. Prior to March 27, 2001, the Veteran's lumbar spine disability was manifested by intermittent demonstration of muscle spasm, and moderate range of motion, including forward flexion to 40 degrees. More than moderate limitation of motion was not shown, and there was no ankylosis or vertebral facture. 2. Between March 27, 2001 and September 9, 2004, the Veteran's lumbar spine disability was manifested by severe limitation of motion, including forward flexion limited to 20 degrees. There was no ankylosis or vertebral facture. 3. Between September 10, 2004 and October 12, 2011, the Veteran's lumbar spine disability was manifested by moderate limitation of motion, with forward flexion generally greater than 30 degrees. There was no severe limitation of motion, ankylosis, or vertebral fracture. 4. Between October 13, 2011 and November 29, 2012, the Veteran's lumbar spine disability was manifested by severe limitation of motion, with forward flexion limited to 20 degrees. There was no ankylosis, or vertebral fracture. 5. Beginning November 30, 2012, the Veteran's lumbar spine disability was manifested by moderate limitation of motion, with forward flexion limited to 40 degrees. There was no severe limitation of motion, ankylosis, or vertebral fracture. 6. Between August 27, 1991 and October 12, 2011, there was no more than mild incomplete paralysis in the right lower extremity. 7. Beginning October 13, 2011, there is no more than moderate incomplete paralysis in the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lumbar spine disability were not met prior to March 27, 2001. 38 U.S.C.A. §§ 1155, 5107(b); (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2002). 2. The criteria for a rating of 40 percent, but no more, for a lumbar spine disability were met on March 27, 2001 and continued through September 9, 2004. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012), 5292, 5295 (2002). 3. The criteria for a rating in excess of 20 percent for a lumbar spine disability were not met between September 10, 2004 and October 12, 2011. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012), 5292, 5295 (2002). 4. The criteria for a rating of 40 percent, but no more, for a lumbar spine disability were met on October 13, 2011, and continued through November 29, 2012. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012), 5292, 5295 (2002). 5. The criteria for a rating in excess of 20 percent for a lumbar spine disability were not met beginning November 30, 2012, and continuing to the present. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012), 5292, 5295 (2002). 6. The criteria for a disability rating of 10 percent for the neurologic manifestations of the low back disability in the right leg are met for the period between August 27, 1991 and October 12, 2011. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). 7. The criteria for a disability rating of 20 percent for the neurologic manifestations of the low back disability in the right leg are met for the period beginning October 12, 2011, and continuing to the present. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.14, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's 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). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection for a lumbar spine disability. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Therefore, no further notice is needed under VCAA. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Veteran has been provided numerous spine examinations, and the evidence of record presents a complete history of the effects of his spine disability since 1991. The Veteran was provided the opportunity following the October 2012 remand to identify any additional treatment records relevant to his claim, and he submitted a signed waiver indicating that there were no other records to be submitted. The Board has perused the record for references to additional treatment reports or other evidence not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Veteran requested a Central Office hearing on his VA Form 9 Substantive Appeal. The Board scheduled him for an April 2003 hearing, but he failed to appear for that hearing. The Veteran never requested to reschedule the hearing. As such, the Board deems the hearing request withdrawn. 38 C.F.R. § 20.704(d) (2012). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Rating History and the Aggravation Factor For purposes of clarity, the Board finds it necessary to establish the rating history of the Veteran's lumbar spine disability in detail. Prior decisions and remands, as well as Court remands, have addressed the discrepancies in ratings provided by VA for the spine disability, and various findings both regarding the appropriate ratings for the disability, as well as whether the ratings applied take any level of pre-aggravation disability into account, are at times contradictory, and are spread out throughout the claims file. Initially, the RO assigned a noncompensable rating for a chronic lumbosacral strain, effective in August 1991, by way of the June 2001 rating decision that granted service connection. Service connection was based on the aggravation of a non-service-connected disability (the lumbosacral strain) by the service-connected right knee disability. The RO found that the chronic lumbosacral strain, both pre-aggravation and post-aggravation, was ratable at 40 percent disabling under the criteria for spine disabilities. As service connection was based on aggravation of a previously non-service-connected disability, the 40 percent baseline level of disability was deducted from the present 40 percent level of disability, resulting in a noncompensable rating. See 38 C.F.R. § 4.22 (2012). In February 2005, the RO increased the Veteran's initial spine rating to 20 percent, effective August 1991, based on a finding of moderate limitation of motion with spasm in the lumbosacral spine. The RO specifically found that a higher, 40 percent rating, was not warranted unless there was evidence of severe limitation of motion. Further, the RO made the general statement that "[a]n evaluation in excess of 20 percent is not warranted based on the medical evidence of record." Inexplicably, the RO did not address the prior findings that the disability had been ratable at 40 percent disabling, or the fact that a 40 percent reduction was previously considered appropriate under the regulations governing service connection based on aggravation. The Board discussed this discrepancy in a September 2005 remand, in which the Board sought clarification of the specific basis upon which the 20 percent rating was determined. By way of clarification, the RO issued a Supplemental Statement of the Case (SSOC) in February 2006, in which the RO amended the basis for the 20 percent rating. The RO held that the Veteran's spine disability was actually to be considered analogous to intervertebral disc syndrome because of evidence of a "noted disc herniation at L4-5 causing probable impingement of the right L5 nerve root." Although the SSOC failed to provide clear findings, it is evident that the RO determined that the spine disability was ratable at 60 percent under criteria for intervertebral disc syndrome, and that the 20 percent rating presently in force was based on a deduction of the 40 percent pre-aggravation level of disability from the 60 percent rating. The RO did not explain its findings in this regard. In a July 2006 Board decision, the Board acknowledged the rating history of the 20 percent rating that was in place. Further, the Board pointed out that it was less than clear whether a finding that the pre-aggravation level of disability would have been ratable at 40 percent. The Board indicated that, temporarily disregarding the issue of aggravation, the evidence did not support a rating higher than 20 percent for the spine disability. Nevertheless, as it was in the Veteran's best interest for 20 percent rating to be based on the original 60 percent rating, reduced by 40 percent, to remain in place, the Board did not revise the basis for the award, and presented the question as "whether or not the [V]eteran currently meets the criteria for an award in excess of 60 percent such that the 20 percent aggravation evaluation [sic] may be increased." The Board evaluated the evidence and found that the criteria for a rating in excess of 60 percent had not been met at any time during the period being considered on appeal, and thus the post-aggravation 20 percent rating would not be increased. In April 2007, the Court of Appeals for Veterans Claims (Court) vacated the Board's July 2006 decision, based on VA's own Motion for Remand, so that the Board could provide an adequate statement of reasons and bases to support its conclusion. VA pointed out that in permitting the basis for the 20 percent rating to remain in place as more beneficial to the Veteran (i.e., that the 20 percent rating would be based on a 60 percent disability, minus the 40 percent pre-aggravation level of disability), the Board had apparently "conceded that a 60 percent rating for the Appellant's overall impairment may be warranted." VA argued in its motion that in contrast to that concession, the Board also noted in its July 2006 decision that it was unclear whether a pre-aggravation 40 percent rating was warranted based on the evidence of record. VA argued that the Board was required to discuss more fully why a pre-aggravation rating was warranted; the motion implied that otherwise, there would be no grounds to reduce the 60 percent rating. The case returned to the Board, and in August 2007, the Board issued a decision in which it determined that it was unable to determine "the precise nature of the [V]eteran's low back disorder prior to aggravation by the service-connected right knee abnormality." Therefore, the Board indicated that it would evaluate the Veteran's back disability without regard to speculative estimates of pre-aggravation disability rating. The Board made the following findings and conclusions: a. Prior to March 27, 2001, the Veteran's disability did not manifest more than moderate limitation of motion, and a 20 percent disability rating was appropriate. b. For the period of March 27, 2001 through September 9, 2004, the Veteran's disability manifested in severe limitation of motion, and that a 40 percent rating was appropriate after considering both the old and new spine criteria. c. For the period beginning September 10, 2004, the Veteran's disability had improved, and only manifested moderate limitation of motion; a 20 percent rating was assigned. There was no reduction based on the consideration of pre-aggravation disability with regard to any of the staged ratings applied. The August 2007 decision was implemented by the RO, and the Veteran has been receiving staged ratings since that time (August 27, 1991 - March 26, 2001, 20 percent; March 27, 2001 - September 9, 2004, 40 percent; September 10, 2004 to the present, 20 percent). Notably, in April 2009, the Court vacated the Board's August 2007 decision for the failure to provide adequate reasons and bases and for failure to comply with the Court's April 2007 remand. The Board has seen the matter on multiple occasions since April 2009, remanding the case each time. The Board has made two findings in those remands pertinent to the present case. First, in August 2010, the Board acknowledged that the RO had implemented the staged ratings granted in the August 2007 Board decision, and indicated that "[n]othing done by the Board in this document or [any] subsequent decision should be taken to complicate that award." Second, in the October 2012 Board remand, citing Allen v. Brown, 7 Vet. App. 439, 448 (1995), the Board made a finding that because the medical opinions of record were conflicting, with some opinions indicating that the lumbar spine disability was caused by the service-connected right knee disability, some opinions reflecting that there was no such relationship regarding either causation or aggravation, and a third category of opinions indicating that the lumbar spine disability was aggravated by the right knee disability to a degree of 15 percent, that the evidence is in equipoise as to whether the lumbar spine disability had a compensable degree of disability prior to aggravation by the service-connected right knee disability. 38 U.S.C.A. § 5107 (West 2002). The Board determined, giving the Veteran the benefit of the doubt, that a rating based on current level of disability cannot be deducted by a pre-aggravation rating. In other words, VA must rate the lumbar spine disability on the basis of the level of severity since August 27, 1991, with no reduction for a pre-aggravation level of disability. Therefore, the issue before the Board is consideration of the staged ratings currently assigned the Veteran's spine disability. As this decision discusses the rating criteria for the spine, and ultimately determines the appropriate ratings to be assigned, the Board finds it necessary to discuss the impact of the regulation concerning reductions in evaluations and compensation, to the extent that the issue of reductions is relevant. If it is found that a reduction is warranted, VA requires that certain procedural requirements must be met prior to that reduction. See 38 C.F.R. § 3.105(e) (2012). Importantly, procedural requirements for reductions only contemplate situations in which "the reduction in evaluation of a service-connected disability . . . is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made . . . ." Id. (emphasis added). Although there have been findings made at the RO level that a 60 percent rating was warranted, and suggestions at the Board level that such may be the case, at no time has the Veteran received payments for his spine disability at rates higher than the staged ratings currently in place. In other words, the Veteran has never been paid at a level of 60 percent for a spine disability. Therefore, the Board is free to consider whether the evidence of record supports ratings higher than the current staged ratings, regardless of whether the Board agrees or disagrees with prior findings concerning a 60 percent rating for a spine disability. Initial Ratings Disability evaluations 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 his 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. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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, however, will be expected in all instances. 38 C.F.R. § 4.21. 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. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of record. Buchanan, 451 F.3d at 1335. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The Court has held that consideration of the appropriateness of a staged rating is required. See Hart, 21 Vet. App. at 509-10. In the instant case, the Veteran has been assigned staged ratings for his lumbar spine disability; the Board is not bound by the current dates assigned for staged ratings, however, and may change the dates and ratings as appropriate based on the evidence of record. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. § 4.45. The spine rating criteria were changed during the period of the Veteran's claim; on September 23, 2002, and again on September 26, 2003, new regulations for the evaluation of service-connected disabilities of the spine became effective. VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the Veteran. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. Under former Diagnostic Code 5292, slight, moderate, and severe limitations of lumbar motion warranted 10, 20, and 40 percent ratings, respectively. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5292 (2003). The Board observes the words "moderate" and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6 (2003, 2012). Although the criteria under DC 5292 were less defined that the current criteria, guidance can be obtained from the amended regulations. With the new criteria, in adopting specific ranges of motion to define what is normal, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See Supplementary Information, 67 Fed. Reg. 56509 (Sept. 4, 2002). In other words, even though pre-September 2003 regulations did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984, and the Board can consider the current ranges of motion to rating spine disabilities under the old criteria. Diagnostic Code 5293, effective prior to September 23, 2002, provided a 60 percent rating for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. A 40 percent rating was provided for severe symptomatology manifested by recurring attacks with little intermittent relief. A 20 percent rating was warranted for moderate symptomatology manifested by recurring attacks. See 38 C.F.R. § 4.71a, DC 5293 (2002). Following changes to DC 5293 in 2003, the criteria for intervertebral disc syndrome appeared essentially as it does under the present DC 5243, discussed below; those changes have no impact on the appropriate rating for the Veteran's spine disability. The old DC 5295 provided for a 20 percent rating for a lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position. A 40 percent evaluation is warranted when the disability is severe, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2003). Other pre-September 2003 diagnostic codes provided for ratings based on vertebral fractures and ankylosis of the spine; those rating criteria have been considered, but are not applicable to the Veteran's disability. Presently, under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the disability is evaluated 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. A 10 percent evaluation is assigned 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 requires thoracolumbar spine forward flexion 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a, General Rating Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note 5. Under the current rating schedule, where a spine disability is manifested by intervertebral disc syndrome, the disc disease may be rated based on limitation of motion, as delineated above, or based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Lumbar Spine, Before March 27, 2001 Prior to March 27, 2001, the Veteran's spine disorder is most appropriately evaluated on the basis of the criteria for lumbosacral strain or limitation of motion. For a rating in excess of 20 percent, the disease must show either severe limitation of motion, or severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DCs 5292, 5295 (2003). These have not been shown. In this regard, it is noted that Dr. Barrett reported, in September 1991, forward flexion to 45 degrees with pain. No other measurements were provided at that time, but limitation to 45 degrees, even with pain, does not meet the criteria for "severe" limitation of motion. Considering the 40 percent criteria under the new regulations as an aid to determining what meets the criteria for "severe" limitation of motion, the Board notes that a 40 percent rating is only applicable upon a showing of limitation of flexion to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, General Rating Formula. See also DeLuca, 8 Vet. App. at 205-06. A VA examination in August 1992 showed forward flexion to 40 degrees; backward extension to 20 degrees; lateral flexion to 25 degrees, bilaterally; right rotation to 20 degrees and left rotation to 25 degrees. There was no tenderness to palpation over the vertebral spine, although the Veteran did claim tenderness over the right sacroiliac area. There was increased prominence to the right paraspinal musculature, but no fixed deformity. This limitation of motion is considered to be moderate impairment, rather than severe. There are none of the criteria that would warrant a 40 percent evaluation under the criteria for lumbosacral strain, or when considering the claim the basis of limitation of motion. An examination was conducted by VA in May 1995. At that time, the Veteran was noted to have significant paravertebral muscle spasm on the right side. The rest of the back looked well, clinically. Forward flexion was to within 14 inches of the floor. Backward extension was described as full, to 30 degrees. Left lateral flexion was to approximately 10 degrees, with significant pain. Right lateral flexion was to 30 degrees, without pain. Rotation of the trunk and upper extremities was approximately 60 degrees to the left and 80 degrees to the right. There was some pain on rotation to the left. Regarding the complaints of pain, the examiner stated that the Veteran had a clear component of pain, with obvious right paravertebral and lumbar muscle spasm as well as point tenderness in the paravertebral area on the right side. He also had some slight amount of midline tenderness with palpation of the spinal processes all the way down to the sacrum. The impression was of disc disease, without significant disk herniation. A private medical report from February 2001 showed "mildly limited" lumbosacral range of motion. Similarly, in March 2001, his forward flexion of the spine was noted to be mildly restricted. The Board has considered a rating for the period prior to March 27, 2001, under the criteria for intervertebral disc syndrome. The Veteran experienced occasional pain, numbness, and weakness during the period in question, such as demonstrated in Dr. Barrett's September 1991 and September 1993 reports, but without motor, sensory, or reflex changes. A May 1995 VA examination showed strength measured at 5/5 bilaterally in the lower extremities, except in the right quadriceps muscle, where the strength measurement was 4/5. There was a slight subjective decrease in sensation in the right lower extremity, but his reflexes were 2+ at the knees and 1+ at the ankles. As of May 1995, his sciatica had stabilized, and a March 2001 VA neurological examination reported normal findings. Although the Veteran had some sciatic symptomatology, at no time was he diagnosed with intervertebral disc syndrome. While that fact alone is insufficient to determine that a rating under the criteria for intervertebral disc syndrome is inappropriate, 38 C.F.R. § 4.20 (2012) (addressing analogous ratings), the medical evidence of record does not demonstrate pronounced, severe, or even moderate neurological symptomatology prior to March 27, 2001. Although his symptomatology could be considered "mild" under the intervertebral disc syndrome rating criteria, which would warrant a 10 percent rating, as discussed below, the Veteran is being assigned a separate rating for radiculopathy of the right lower extremity beginning August 27, 1991, that fully addresses the neurological symptomatology related to his spine disability. Therefore, a rating under pre-September 2002 Diagnostic Code 5293 is not warranted, and it is overwhelmingly evident that at no time would a 60 percent rating for "pronounced" intervertebral disc syndrome be appropriate. In short, prior to March 27, 2001, the Veteran's disability manifested in, at most, moderate limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (2002). Further, there is no evidence of listing of the whole spine to one side, positive Goldthwaite's sign, marked limitation of forward bending, or any other criteria that would warrant a severe rating under the criteria for a lumbosacral strain. 38 C.F.R. § 4.71a, DC 5295 (2002). Lumbar Spine, March 27, 2001 - September 9, 2004 As the Veteran's spine disability is presently rated at 40 percent disabling for the period from March 27, 2001 through September 9, 2004, he would have to show, under the old criteria, pronounced intervetebral disc syndrome, ankylosis, or a fractured vertebra residuals. 38 C.F.R. § 4.71a, DCs 5285-5295 (2002). Beginning in September 2002, he could obtain a 60 percent rating under the criteria for intervertebral disc syndrome with a showing that he had incapacitating episodes with a total duration of at least six weeks during the previous year. 38 C.F.R. § 4.71a, DC 5243. Under the new criteria, he would have to demonstrate that he had ankylosis of the entire thoracolumbar spine to warrant a 50 percent rating. 38 C.F.R. § 4.71a, DCs 5235-5243. VA examinations were conducted in March and October 2001. Neither examination reports from those examinations, or any other evidence for the period of March 27, 2001 through September 9, 2004, show ankylosis or that the Veteran had a fractured spine. Although the October 2001 examination report showed that the Veteran declaimed the ability to bend forward, he had extension to 5 degrees, and lateral flexion to 5 degrees, bilaterally; there was, therefore, no ankylosis. Notably, while the Veteran's range of motion was with pain, there was no evidence of motor weakness or atrophy. There is no evidence that the Veteran ever suffered a fractured spine, or that he has ankylosis of the spine; he has never demonstrated a complete lack of lumbar spine range of motion. 38 C.F.R. § 4.71a, DCs 5285, 5286-5289 (2002), Further, he was not diagnosed with intervertebral disc syndrome, and there is no suggestion that he was incapacitated by his spine disability for a total of six weeks during any twelve-month period. A higher rating is not for application under the old criteria, 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002), or the amended criteria. 38 C.F.R. § 4.71a, DC 5293 (2003); DC 5243 (2012). Therefore, for the period of March 17, 2001 through September 9, 2004, considering either the old or new rating criteria for the spine, at no time did the Veteran's disability warrant higher than a 40 percent rating. Lumbar Spine, September 10, 2004 - October 12, 2011 For the period beginning September 10, 2004, the Veteran's lumbar spine rating is rated at 20 percent, and the evidence does not support a finding that a higher rating is warranted. An examination was conducted by VA on September 10, 2004. At that time, the Veteran described low back pain as pain in the right lower back, especially when bending down. MRI evaluations performed in the past showed degenerative disc disease at L4-5, with centrally protruding disc, lateralized to the right. He denied bowel or bladder incontinence or problems. Range of motion of the low back was forward flexion to 40 degrees, and a maximum of 45 degrees; extension to 20 degrees, at which point pain began, and a maximum of 25 degrees; rotation to 20 degrees bilaterally, at which point pain began; left lateral flexion to 10 degrees, at which point pain began, and a maximum of 15 degrees; and right lateral flexion to 20 degrees, at which point pain began, and a maximum of 25 degrees. The examiner did not note any additional limitation of the lumbar spine range of motion due to weakened motion, excess fatigability or incoordination. X-ray studies showed minimal scoliosis. An MRI study showed no evidence of disc herniation, spinal stenosis or neural foraminal narrowing. There were mild degenerative disc changes at L4-5. The diagnosis was of probable chronic lumbosacral strain with changes limited primarily to the back musculature. A December 2004 report from Capital Orthopaedics and Rehabilitation (Capital Orthopaedics) indicated that the Veteran had a "good" range of spine motion. An April 2005 chiropractic report indicated severe lower back pain, with range of motion "moderately restricted," and pain at 20 degrees of flexion. Extension was limited to 10 degrees, where pain began. In contrast, an April 2005 report from Capital Orthopaedics showed forward flexion of the lumbar spine at 70 percent of normal; while there is no indication that Capital Orthopaedics was relying on VA's definition of normal forward flexion to be 90 degrees, a reasonable interpretation of the document indicating that there was 70 percent of flexion is that his flexion was not limited to a severe degree. Also relevant, a May 2005 physical therapy note showed that he had 75 percent of "normal" lumbar flexion. The Veteran was examined by VA in December 2008, at which time he demonstrated forward flexion to 45 degrees. He also demonstrated lateral flexion to 20 degrees bilaterally, and rotation to 25 degrees. There was no measurement of extension provided. The examiner further provided that there was no evidence of additional limitation due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flare-ups. In August 2010, the Veteran had another VA spine examination. He had no incapacitating episodes related to his spine, and indicated that prolonged walking loosened up his back. He had forward flexion to 70 degrees, which was maintained after three repetitions. With fatigue and pain, his forward flexion was limited to 60 degrees. He had lateral flexion to 25 degrees bilaterally, reduced to 20 degrees with pain and fatigue, as well as extension to 20 degrees, at which point pain began. A private report from the Atlantic Chiropractic Center dated five days after the VA examination in August 2010 appears to show that the Veteran's forward flexion was alternately measured at 60 degrees with pain, and later at 30 degrees with pain. Beginning with the medical examination that was conducted in September 2004, the Veteran's lumbar spine disability showed improvement when compared to previous studies. His range of motion no longer showed severe impairment as evidenced by the fact that he had forward flexion to 40 degrees, as well as a total range of motion of 130 degrees. 38 C.F.R. § 4.71a, DC 5292 (2003). Under the new rating criteria, effective in September 2003, a rating of 40 percent requires the Veteran to demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Ankylosis of the spine was not shown, and the Veteran's forward flexion was to 40 degrees, without further limitation by weakened motion, excess fatigability or incoordination. See DeLuca, 8 Vet. App. at 205-06. A 20 percent rating is warranted for this period of the appeal. 38 C.F.R. § 4.71a, DCs 5235-5243. The Board acknowledges that although the evidence continued to generally show no more than moderate limitation of lumbar spine motion, there were two measurements during this period of the appeal showing 30 degrees or less of forward flexion; both of those measurements, however, appear to be anomalies within the context of the remaining evidence of lumbar spine motion. As for the April 2005 chiropractic report showing pain at 20 degrees of forward flexion, measurements both before and after that report described a different picture of symptomatology. In December 2004, he had a "good" range of spine motion. During April 2005, the same month of the 20 degree measurement, he was documented to be at 70 percent of forward flexion, and a month later was shown to have 75 percent of normal flexion. Considering the other measurements before and after the 20 degree measurement, the Board finds that the 20 degree measurement was not representative of his disability. The August 2010 chiropractic measurements, which include both a 60 degree (with pain) measurement and a 30 degree (with pain) measurement, also do not suggest a severe limitation of forward flexion (old regulations), or evidence that the Veteran's forward flexion was actually limited to 30 degrees or less (new regulations). A full VA examination only five days before that chiropractic visit showed that the Veteran had forward flexion to 60 degrees when considering factors such as pain and fatigue. The other evidence presented during this period of the appeal also show no more than moderate limitation of motion, as shown by the 45 degrees of flexion demonstrated in both September 2004 and December 2008. As with the period prior to March 27, 2001, the evidence does not support a higher rating based on the criteria for intervertebral disc syndrome. The Veteran was not diagnosed with intervertebral disc syndrome during the period in question, and while the Veteran experienced some sciatic symptomatology, the medical evidence of record does not demonstrate pronounced, severe, or even moderate neurological symptomatology between September 10, 2004 and October 12, 2011. 38 C.F.R. § 4.71a, DC 5293 (2002). To the extent that his symptomatology could be considered "mild," which would warrant a 10 percent rating, as discussed below, the Veteran is being assigned a separate rating for radiculopathy of the right lower extremity beginning August 27, 1991, that fully addresses the neurological symptomatology related to his spine disability during this period of the appeal. Similarly, under the new rating criteria for intervertebral disc syndrome, the Veteran likewise does not meet the criteria for a higher rating. 38 C.F.R. § 4.71a, DC 5243. There is no evidence of incapacitating episodes during the period in question, and the Board notes that in August 2010, the Veteran specifically denied incapacitating episodes. Therefore, for the period of September 10, 2004 through October 12, 2011, the Veteran does not meet the criteria for a rating in excess of 20 percent under the old or new regulations governing spine disabilities. Lumbar Spine, October 13, 2011 - November 29, 2012 The Veteran meets the requirements for a higher, 40 percent rating, for his lumbar spine disability, based on the results of an October 2011 VA examination. At that time, his forward flexion of the lumbar spine was limited to 20 degrees, including the effects of pain, and following repetitive motion. The 20 degrees of forward flexion meets the criteria for severe limitation of motion under the old regulations, 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002), and for a 40 percent rating under the General Rating Formula for the spine under the new regulations. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). He does not meet the criteria for a higher rating under any of the available criteria. The evidence continues to show that he does not have a vertebral fracture or ankylosis. The October 2011 examination report diagnosed the Veteran with intervertebral disc syndrome, and noted that he had between six and eight incapacitating episodes in the previous year, each lasting approximately four to five days at a time. Despite this diagnosis, the Veteran does not meet the criteria for a 60 percent rating under the criteria for intervertebral disc syndrome. There is no evidence that the symptoms are "pronounced" under the pre-September 2002 criteria; in making that determination, the Board notes that the criteria for "severe" intervertebral disc syndrome under the old criteria, which provides for a 40 percent rating, only allows for "intermittent relief." 38 C.F.R. § 4.71a, DC 5293 (2002). Clearly, even if the Veteran had the maximum possible number of days of incapacitation, 40 days (eight episodes, five days each), suggests more than merely "intermittent relief." As noted above, under the current rating schedule, where a spine disability is manifested by intervertebral disc syndrome, the disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months. 38 C.F.R. § 4.71a, DC 5243. Although the Veteran indicated at the October 2011 examination that his incapacitating episodes were all "documented with personal physician," that does not appear to be the case. There are no records in the claims file of incapacitating episodes from his personal physician. Further, the Veteran was specifically provided the opportunity to identify additional records in October 2012, but submitted two signed waivers indicating that there were no additional records relevant to his claim. Regardless, even considering the highest total number of days that the Veteran's statements could be interpreted to produce, the total number of days is only 40, which is less than six weeks, and thus would warrant no more than a 40 percent rating under the current intervertebral disc syndrome rating criteria. Id. Therefore, the Board finds that a 40 percent rating, and no higher, is warranted for the period of October 13, 2011 through November 29, 2012. Lumbar Spine, November 30, 2012 to the Present As of November 30, 2012, only a 20 percent rating for the lumbar spine disability is again warranted. The Veteran was provided another VA examination, at which time he demonstrated no more than moderate limitation of lumbar motion, and greater than 30 degrees of flexion. Specifically, he had forward flexion to 50 degrees, which was further limited to 40 degrees with pain following repetition. Other measurements showed extension, right and left lateral extension, and right and left lateral rotation all to 15 degrees with pain, and extension further limited to 5 degrees following repetition. The examiner noted that the Veteran's range of motion following repetitive use was limited by pain, but not be weakness, fatigability, incoordination, swelling, deformity, atrophy, instability, or other factors. There continued to be no evidence of ankylosis or vertebral fracture, each of which being symptoms that could warrant ratings higher than 20 percent. Further, under the old criteria, there was no evidence reported of a severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Considering the question of intervertebral disc syndrome, the examiner acknowledged that the Veteran currently had that condition, but noted only between one and two weeks of incapacitating episodes during the previous twelve-month period. That symptomatology does not represent "severe" intervertebral disc syndrome, and under either the old or new criteria, such symptomatology does not warrant a rating of 40 percent or higher. 38 C.F.R. § 4.71a, DC 5293 (2002); 38 C.F.R. § 4.71a, DC 5243. Thus, considering both the old and new spine criteria, the Veteran's spine disability, beginning November 30, 2012 and continuing to the present, warrants a 20 percent rating. 38 C.F.R. § 4.71a, DCs 5292, 5295 (2003); 38 C.F.R. § 4.71a, DC 5235-5243. Radiculopathy The Board also finds that a separate rating for the neurological manifestations of the Veteran's lumbar spine disability is warranted. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. DC 8620 refers to neuritis of the sciatic nerve, and DC 8720 refers to neuralgia of the sciatic nerve. Radiculopathy, March 27, 1991 through October 12, 2011 The Veteran has consistently described pain and weakness in his right lower extremity from the date of his initial claim for his lumbar spine disability. His symptoms, as described below, meet the criteria for mild incomplete paralysis for the period from March 27, 1991 through October 12, 2011. The Veteran has walked with a cane throughout the period on appeal, at least in part, according to examiners, due to his right knee disability. A June 1991 MRI showed that the Veteran had a protruding disc at the L4-L5 level. A private medical report from September 1991 included a positive straight leg raise on the right side, and documented that the Veteran's right leg was not as strong as his left leg. He was experiencing some right lower extremity numbness, but had no motor, sensory, or reflex changes. In September 1993, a private treatment report showed a "markedly positive" straight leg raise on the right, and indicated that the Veteran was limping. Again, he had no motor, sensory, or reflex changes. In October 1993, the same provider indicated that there had been some improvement, and noted that the right lower extremity straight leg raising was only "slightly" positive. In January 1995, a private provider documented that the Veteran was suffering from chronic pain due to lumbar radiculitis. At his May 1995 Decision Review Officer hearing, the Veteran described a history of radiating pain throughout his right lower extremity, with tingling and numbness. He testified that the symptoms began prior to his August 1991 spine claim. The Veteran was provided a VA examination in May 1995, which noted that the Veteran had 5/5 strength bilaterally in his lower extremities, except in his right quadriceps muscle, which was 4/5 due to knee pain. The examiner noted a slight, subjective decrease in sensation on the right. The Veteran's reflexes were 2+ at the knees, and 1+ at the ankles bilaterally. In February 2001, a private report indicated that the Veteran had some bilateral hamstring tightness. Performing the straight leg raise test, there was ipsilateral low back pain and upper posterior thigh pain on the right at 70 degrees. The Veteran's strength and sensation in the lower extremities was generally intact, but his deep tendon reflexes were only "trace positive" at the knees and 1+ at the ankles. A March 2001 straight leg raise test from the same provider was negative for symptoms. At a March 2001 VA neurological examination, in contrast to the prior reports, documented "normal" neurological findings. The Veteran's sensation was intact, and the strength of the lower extremities was 5/5 in all regards, with the exception of "some give-way weakness." The deep tendon reflexes were 3+ and equal bilaterally. The Veteran had increased symptomatology at an October 2001 VA examination. The report from that examination included a diagnosis of L5-S1 radiculopathy. The deep tendon reflexes were 1+ throughout, except for an absent right ankle jerk. Sensation was intact throughout. In February 2002, a report from Capital Orthopaedics indicated that there were no true sciatic signs. A right leg straight raise leg test was positive for buttock pain at 60 degrees, and a left leg straight leg raise was positive for contralateral right buttock and back pain at 75 degrees. A Capital Orthopaedics report from March 2003 showed that the Veteran had ipsilateral low back and buttock pain at 70 degrees on a right leg straight leg raise test, but that his strength, sensation, and deep tendon reflexes were normal. At a September 2004 VA examination, the Veteran denied bladder or bowel incontinency. He described right leg weakness, as well as numbness in the right hip and right thigh regions. The examiner documented asymmetry in the muscle bulk of his lower extremities, with his right thigh and calf slightly smaller than their left counterparts. The examiner noted some give-way weakness in the right hip flexors. Deep tendon reflexes were normal throughout. Notably, the examiner declined to make a finding of radiculopathy, because MRI reports were negative for evidence of disc herniation, spinal stenosis, or neural foraminal narrowing. An April 2005 MRI showed nerve root impingement at the L5 level. Also from April 2005, a chiropractor's report documented buttock and right hip pain, numbness, and tingling. Deep tendon reflexes were measured at 2, and symmetrical. A straight leg raise test was positive on the right at 50 degrees. The chiropractor diagnosed the Veteran with lumbar sciatica. An April 2009 VA neurological examination report indicated that the Veteran's sensation was intact in the lower extremities, and that his deep tendon reflexes were 2+ and equal. Finally, in August 2010, the Veteran had aching and numbness radiating from his back to his foot; he did not indicate whether those symptoms were on the left or the right. He had a positive straight leg raise test on the right, and his deep tendon reflexes were 1+ bilaterally. The Board initially notes that the Veteran is competent to describe the pain that he has experienced, and the Board finds that his accounts of the pain down his right leg are credible, especially considering his consistency in describing them and the consistency with which the symptoms were observed via objective testing on examination. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). As indicated at the outset, the radicular symptoms associated with the sciatic nerve are not more than mild for the period between March 27, 1991 and October 12, 2011. During the period on appeal, he documented complaints of pain, weakness, and numbness in the right lower extremity. The symptoms were relatively consistent throughout, and at no point reached the threshold of "moderate" or "moderately severe." On two occasions the Veteran was noted to have bilateral hamstring tightness, but these symptoms appear fleeting, and do not suggest consistent left leg symptomatology. Left leg testing was regularly negative, and no examiner diagnosed the Veteran with a left leg disability related to his lumbar spine disability. The evidence is against the grant of a separate rating for a disability in the left leg. Accordingly, a 10 percent rating is warranted for the neurologic manifestations of the right lower extremity, under Diagnostic Code 8520, for the period of March 27, 1991 through October 12, 2011. 38 C.F.R. § 4.124a, DC 8520; see Gilbert, 1 Vet. App. at 55-57. Radiculopathy, October 13, 2011 through the Present Beginning October 13, 2011, the evidence suggests a worsening of the Veteran's right leg radicular symptomatology. Beginning on that date, a 20 percent rating is warranted for moderate right leg radiculopathy. At the October 2011 examination, the Veteran denied urinary or bowel incontinence. He described moderate to severe pain that was constant, and which radiated down the right leg into the ankle. His deep tendon reflexes were symmetrical, and were generally 2+ except for ankle jerks, which were measured at 1+. His right lower extremity demonstrated symptoms consistent with problems with the L4-L5 nerve. He had decreased sensation to pinprick, light touch, and temperature, and had dysthesias on the right. The right lower extremity had some give-way weakness, but there was normal muscle tone and no muscle atrophy. The examiner diagnosed the Veteran with right lumbar disc protrusion at L5. The Board notes that there was some decreased sensation to pinprick and light touch on the left lower extremity as well. In November 2012, the Veteran was provided his most recent VA examination. He was diagnosed with a herniated lumbar disc. Muscle strength testing was generally 5/5 throughout the lower extremities, but in the right ankle dorsiflexion and right great toe extension, was measured at only 4/5. Deep tendon reflexes were 2+ at the knees, 2+ in the left ankle, and absent in the right ankle. Sensation to light touch was decreased on the right below the knee, through the toes. Straight leg tests were positive on the right, but negative on the left. The examiner noted radiculopathy symptoms, including moderate constant pain, moderate paresthesias/dysthesias, and moderate numbness, all in the right lower extremity. There were no radicular symptoms in the left lower extremity. The nerve involvement, according to the examiner, was with the sciatic nerve on the right. It was the examiner's opinion that the radiculopathy on the right was "moderate." The examiner further noted that the Veteran's use of a cane was due to his lumbar condition, and was prescribed by a physician. The Board finds that the November 2012 examination report is the most thorough with regard to describing the right lower extremity radiculopathy, and that the symptomatological picture described meets the criteria to be rated as "moderate" under the schedular criteria. 38 C.F.R. § 4.124a, DC 8520. In making this finding, the Board acknowledges that the examiner's determination that the symptoms are "moderate" is not, in itself, determinative; the Board does find that description helpful, however. The Board notes that the November 2012 examiner's findings appear to show symptoms slightly worse than those described in October 2011, but the Board finds that the October 2011 findings are sufficiently similar to the November 2012 findings, and show increased radicular symptoms compared to prior medical reports. Therefore, the higher, 20 percent rating, should begin in October 2011. The disability picture presented is not "moderately severe," and thus no more than a 20 percent rating is warranted. The Veteran's sensation to light touch and pinprick is decreased, but not absent. His muscle strength, even in the affected areas, remains 4/5. Further, his deep tendon reflexes at the knee level is normal. All of these findings suggest that a rating based on "moderate" symptomatology, rather than "moderately severe" symptomatology, is warranted. The Board points out that the decreased pinprick and light touch sensations in the left leg documented in the October 2011 examination report did not persist through to the November 2012 examination, and that the November 2012 examination was normal on the left. The evidence does not suggest a separate left leg radicular disability, and thus no separate rating is warranted. Therefore, beginning October 13, 2011, a 20 percent rating, and no higher, for radiculopathy of the right lower extremity is warranted. 38 C.F.R. § 4.124a, DC 8520; see Gilbert, 1 Vet. App. at 55-57. Extraschedular Considerations The symptoms presented, during the periods of time addressed in this decision, by the Veteran's back disorder and right lower extremity radiculopathy are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other Veterans with the same or similar disability. There is no evidence at any time during the appeal that the Veteran's back disorder necessitated frequent hospitalization. While the Veteran has missed some time from work over the course of his appeal, as addressed more fully below, the Board notes that the ratings schedule is intended to account for loss of earning capacity. 38 C.F.R. § 3.321 (2012). The record reflects that the Veteran continues to be employed. Thus, the Board finds no evidence warranting a referral of this claim for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Total Disability Rating Based on Individual Unemployability (TDIU) The Board further finds no basis for inferring a claim of entitlement to a total disability evaluation based on individual unemployability (TDIU) at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Although as demonstrated in his reports at various VA spine examinations, he has missed time from work throughout the appeal period to deal with his back pain, to attend doctor visits, and to seek therapy, the Veteran has not contended, and the evidence does not show, that he has been unemployed at any point during the course of this appeal due to his service-connected disabilities. In fact, the evidence reflects that the Veteran continues to be employed presently. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 20 percent for a lumbar spine disability prior to March 27, 2001 is denied. A rating in excess of 40 percent for a lumbar spine disability for the period of March 27, 2001 through September 9, 2004, is denied. A rating in excess of 20 percent for a lumbar spine disability for the period of September 10, 2004 through October 12, 2011, is denied. An increased rating of 40 percent, and no higher, for a lumbar spine disability for the period of October 13, 2011 through November 29, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 20 percent for a lumbar spine disability for the period beginning November 30, 2012, is denied. A 10 percent rating for radiculopathy of the right lower extremity from August 27, 1991 through October 12, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. A 20 percent rating for radiculopathy of the right lower extremity for the period beginning October 13, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs