Citation Nr: 1306072 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-03 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased initial evaluation for chronic lumbosacral strain, spinal stenosis, and degenerative spondyloarthritis (low back disability), currently evaluated as noncompensable prior to March 21, 2007; 10 percent disabling from March 21, 2007, through January 24, 2012; and 20 percent disabling from January 25, 2012, forward. 2. Entitlement to an increased initial evaluation for left lower extremity radiculopathy, currently evaluated as 10 percent disabling from February 8, 2008, to January 24, 2012; and 20 percent disabling from January 25, 2012, forward. 3. Entitlement to an increased initial evaluation for right lower extremity radiculopathy, currently evaluated as 20 percent disabling as of January 25, 2012. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active military duty from January 1970 to October 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board remanded this case to the agency of original jurisdiction (AOJ) for additional development in March 2009, August 2011, and December 2011. Sufficient development has now been completed, and the case is ready for adjudication. In a September 2005 rating decision, the RO granted service connection for a low back disability and assigned an initial noncompensable evaluation effective as of August 4, 2003. The Veteran appealed from that rating. During the course of the appeal, the AOJ increased the rating for the low back disability, granted separate ratings for associated left and right lower extremity radiculopathy, and increased the rating for the left lower extremity, as indicated by the issues stated on the first page of this decision. See May 2007, February 2011, and August 2012 rating actions. As discussed below, evaluation of a lumbar spine disability must include consideration of a separate rating for any associated objective neurological abnormalities. As such, the evaluations of the lower extremities are also on appeal. The Veteran's appeal continues from the initial rating that was assigned for the low back disability, as he has not expressed satisfaction with the partial increased ratings and separate ratings that were assigned, and they do not constitute a full grant of the benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). As noted in the prior Board remand, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to several service-connected disabilities has been raised by the record. Because not all of the disabilities are on appeal, and the AOJ has not yet adjudicated the claim, the Board does not have jurisdiction over the issue. Therefore, the issue of entitlement to a TDIU is again REFERRED to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to March 21, 2007, the Veteran's low back disability manifested by characteristic pain on motion, or slight limitation of motion; without loss of lateral spine motion, severe lumbosacral strain, forward flexion limited to 60 degrees or less, combined range of motion to 120 degrees or less, ankylosis, or incapacitating episodes with a total duration of 2 weeks or more during a 12-month period. 2. For the period from March 21, 2007, through March 10, 2008, the Veteran's low back disability manifested by frequent muscle spasm, forward flexion limited to 60 degrees (or moderate limitation), and unilateral loss of lateral spine motion when considering pain and flare-ups; without severe limitation of motion or severe lumbosacral strain, forward flexion to 30 degrees or less, ankylosis, or incapacitating episodes with a duration of at least 4 weeks in 12 months. 3. For the period from March 11, 2008, forward, the Veteran's low back disability has manifested by severe lumbosacral strain with marked limitation of forward bending or flexion, loss of lateral motion with arthritic changes and narrowing of joint space; without ankylosis or incapacitating episodes with a duration of at least 6 weeks within a 12-month period. 4. For the period from March 21, 2007, forward, the Veteran has had objective left lower extremity neurological abnormality manifested by intermittent but frequent sharp pain, as well as intermittent organic changes including objectively decreased reflexes, subjective numbness and paresthesias, objectively decreased sensation, and occasional motor function abnormality, most nearly approximating moderate incomplete paralysis of the sciatic nerve. 5. For the period from January 9, 2008, forward, the Veteran has had objective right lower extremity neurological abnormality manifested by intermittent but frequent sharp pain, as well as intermittent organic changes including objectively decreased reflexes, subjective numbness, weakness, tingling, and paresthesias, objectively decreased sensation, and occasional motor function abnormality, most nearly approximating moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period prior to March 21, 2007, the criteria for a rating of 10 percent, but no higher, for the Veteran's low back disability, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237-5243 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5292 & 5295 (2003). 2. For the period from March 21, 2007, through March 10, 2008, the criteria for a rating of 20 percent, but no higher, for the Veteran's low back disability, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237-5243 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5292 & 5295 (2003). 3. For the period from March 11, 2008, forward, the criteria for a rating of 40 percent, but no higher, for the Veteran's low back disability, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237-5243 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5292 & 5295 (2003). 4. For the period from March 21, 2007, through January 24, 2012, the criteria for a rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). 5. For the period from January 25, 2012, forward, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). 6. For the period from January 9, 2008, through January 24, 2012, the criteria for a rating of 20 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). 7. For the period from January 25, 2012, forward, the criteria for a rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Here, the Veteran's claim of entitlement to higher disability ratings arises from his disagreement with the initial evaluation assigned following the grant of service connection for a low back disability. As noted above, although he was later granted a higher evaluation for a portion on appeal, as well as separate ratings for the associated neurological impairment in the lower extremities, his appeal proceeds from the initial unfavorable rating decision. See AB, 6 Vet. App. at 39. The Veteran was provided with VCAA notice concerning his service connection claim in a September 2003 letter, prior to the initial rating decision in September 2005. Further, he has not alleged any prejudice as a result of any possible notice defects pertaining to the downstream element of the disability rating. The Veteran was also advised of the evidence and information necessary to establish a disability rating and an effective date in an August 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This timing defect was cured by the subsequent readjudication of the increased rating claims, including in an August 2012 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Therefore, no additional notice is required. With regard to the duty to assist, all identified, available treatment records have been obtained and considered. As directed in the prior remand, the AOJ requested the Veteran to identify any outstanding post-service treatment. Records were identified and obtained from several private providers, including primary care and neurological specialists, as well as VA providers. The Board has reviewed the Veteran's physical claims file as well as the Virtual VA file (VA's electronic storage system), which includes additional VA treatment records. The AOJ also considered the Virtual VA records, as indicated in the August 2012 supplemental statement of the case. The evidence includes private records dated from 1996 through 2009 and VA records dated in 1993 and from 2001 through June 2012. Additionally, the AOJ requested and obtained pertinent records concerning the Veteran's disability benefits from the Social Security Administration (SSA), which are dated from 2001 to 2006. There is no indication or argument that any records remain outstanding that are necessary for a fair adjudication. Additionally, the Veteran has been afforded several VA examinations to determine the current severity of his low back disability, as well as the nature and severity of any associated neurological impairment. The last examination was in January 2012, in response to the most recent Board remand. There is no argument or indication that the examination report is inadequate. In particular, the examiner measured and recorded the Veteran's symptomatology including range of motion of the thoracolumbar spine, any additional functional impairment due to pain or other factors with flare-ups or repetitive motion, and the nature and degree of any associated neurological impairment. Further, there is no indication that the Veteran's disabilities have increased in severity since the last medical evidence of record, which includes VA treatment records dated through June 2012. For the foregoing reasons, the Board finds that the AOJ substantially complied with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). Further, another remand would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-27 (1999). Low back disability The Veteran's low back disability is currently assigned a noncompensable rating from the effective date of the grant of service connection of August 4, 2003, prior to March 21, 2007; a 10 percent rating from March 21, 2007, through January 24, 2012; and a 20 percent rating from January 25, 2012, forward. He has also been granted a separate compensable rating for each lower extremity, as will be discussed below in the section on neurological impairment. The Veteran's claim was received in August 2003. His current diagnoses include degenerative disc disease (or intervertebral disc syndrome). The Board notes that the rating criteria pertaining to intervertebral disc syndrome (IVDS) were amended effective September 23, 2002, prior to receipt of the Veteran's claim. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002). Therefore, those prior regulations need not be considered. However, the rating criteria for all spinal disabilities were amended effective as of September 26, 2003. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). As the Veteran's claim was pending at the time of the second set of amendments, he is entitled to application of the criteria that are the most favorable to his claims. However, an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; see also Karnas v. Derwinski, 1 Vet. App. 308, 311-13 (1991). As such, the Board will consider whether the Veteran is entitled to a higher rating for his low back disability under either the current or the former regulations. Although the AOJ has not addressed the prior versions of the spinal rating criteria in considering the Veteran's claim, VA regulations now provide that a case need not be remanded back to the AOJ solely for such purpose. See 38 C.F.R. § 19.9 (2012). Moreover, neither the Veteran nor his representative have argued that there is any prejudice from the AOJ not considering the pre-September 26, 2003 versions of the rating criteria, and no prejudice is indicated. As such, no remand is necessary, and the Board may consider both the current and former regulations for the low back. Prior to September 26, 2003, with the exception of IVDS, disabilities of the spine were rated on the basis of residuals of vertebral fracture (DC 5285); complete bony fixation (ankylosis) of the entire spine or of the cervical, dorsal, or lumbar spine (DCs 5286-5289); limitation of motion of the cervical, dorsal, or lumbar spine (DCs 5290-5292); sacroiliac injury and weakness (DC 5294); and lumbosacral strain (DC 5295). See 38 C.F.R. § 4.71a (1997 & 2003). In this case, there is no evidence of residuals of a vertebral fracture or of sacroiliac injury or weakness. Additionally, as the Veteran is able to move his lumbar spine, the evidence does not reflect ankylosis of the lumbar spine or the entire spine. While there is some evidence of cervical spine symptoms, and he is service-connected for a cervical spine disability, that disability is not on appeal. As such, further discussion of the prior DCs 5285 through 5289 and DC 5294 is unnecessary. Under DC 5292, slight limitation of motion of the lumbar spine warranted a 10 percent rating, moderate limitation of motion of the lumbar spine warranted a 20 percent rating, and severe limitation of motion of the lumbar spine warranted a 40 percent rating. 38 C.F.R. § 4.71a, DC 5292 (1997 & 2003). Under DC 5295, lumbosacral strain with characteristic pain on motion was assigned a 10 percent rating. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, warranted a 20 percent rating. 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 osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, was rated at 40 percent. 38 C.F.R. § 4.71a, DC 5295 (1997 & 2003). The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under the current regulations, effective since September 26, 2003, all disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the condition is rated as intervertebral disc syndrome (IVDS) under DC 5243. See 38 C.F.R. § 4.71a. Under the General Rating Formula, the identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. Id. A 10 percent rating will be 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; 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. Id. A 20 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine or the entire spine warrants a rating of 50 or 100 percent, respectively. Id. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). Under the General Rating Formula, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). As noted above, degenerative disc disease or IVDS may be rated, in the alternative, based on incapacitating episodes. These criteria have been essentially the same effective since September 23, 2002. Prior to September 26, 2003, they were under DC 5293 (for IVDS), and they are now under DC 5243 and the IVDS Formula. See 38 C.F.R. § 4.71a (2003 & 2012). A rating is to be assigned either for orthopedic and neurological manifestations, or for IVDS based on incapacitating episodes, whichever results in an higher overall evaluation. Ratings of 10, 20, 40, and 60 percent are available based on frequency of episodes within a 12-month period. Id. In this case, the Veteran's lay statements are generally consistent with the medical evidence concerning the severity of his symptoms in the low back and lower extremities. The evidence clearly shows a progressive worsening of the Veteran's low back disability over the course of the appeal. Considering all evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds that the following staged ratings are appropriate for the indicated reasons. Applying the old rating criteria, the Veteran is entitled to a compensable rating of 10 percent for his low back disability from the date of service connection through March 20, 2007. This is because the evidence for this period shows lumbosacral strain with characteristic pain on motion. See 38 C.F.R. § 4.71a, DC 5295 (2003). Moreover, the evidence shows slight limitation of motion of the lumbar spine when considering limitation due to pain and other factors during periods of flare-ups, as required by DeLuca and Mitchell. See id. at DC 5292 (2003). The Board notes that a 10 percent rating would also be warranted under the criteria for arthritis shown by x-rays, based on painful motion during flare-ups that is not compensable under the applicable rating codes. See 38 C.F.R. § 4.71a, DC 5003 (2003 & 2012). Specifically, there are several indications of treatment for increased low back pain after exacerbations due to activity, which was alleviated to some extent by Advil and stretching. See, e.g., VA records dated in May 2003 (increased back pain for 3 months after playing tennis, with radiating pain to both buttocks left worse than right, as well as difficulty sleeping due to pain); January 2005 (noting exacerbation of pain over past 6 months). However, on both occasions, the Veteran's range of motion was within full limits, but with increased pain during back extension and side bending. He had kyphotic posture and flattening of the lumbar spine, but normal gait. He reported being very active with daily exercises, although they were difficult due to pain. The Veteran also complained of occasional muscle spasms. See, e.g., VA records dated in March 2004, November 2004. A September 2005 VA examination report is generally consistent with the prior records. The Veteran reported worsening low back pain over the past few years, with constant pain that is worse when he wakes up in the morning and less in the evenings. He also reported stiffness, weakness, and flare-ups every day after lifting or stooping, usually lasting for 1/2 day at a time, which are relieved by medications and physical therapy. The Veteran used a back brace as needed, but no cane or other walking aid. He denied any incapacitating episodes in the past 12 months. The Veteran had normal range of motion with forward flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion and rotation to 30 degrees, for a combined range of 240 degrees. There was no objective pain on motion, and no change after repetitive movement. There was also no muscle spasm, although the Veteran was tender over both sacroiliac joints, more on the left than the right. There were no spinal deformities or malformations. X-rays showed mild spondylosis with no evidence of fracture. A February 2004 MRI was noted to show degenerative disc disease and other findings. The examiner diagnosed chronic lumbosacral strain, spinal stenosis, and degenerative lumbar spondyloarthritis. An MRI conducted in late September 2005 showed slight improvement in disc herniation at L4/L5 as compared to the 2004 MRI, with no other changes noted. A 2006 residual functional capacity assessment from the SSA noted reports of chronic pain. The Veteran was found to be able to lift or carry 10-20 pounds, and to stand or walk and sit for about 6 hours in an 8-hour workday. A January 2006 examination was noted to show chronic lumbar spasms. The Veteran received VA treatment for complaints of increased low back pain with an unspecified level of decreased flexion in November 2006 and early March 2007. The foregoing lay and medical evidence establishes entitlement to a 10 percent rating for the Veteran's low back disability under the old rating codes based on characteristic pain on motion, or slight limitation of motion of the lumbar spine. See 38 C.F.R. § 4.71a, DCs 5292 and 5295 (2003). However, a higher rating is not warranted under the old codes because there was not muscle spasm with extreme forward bending or loss of lateral spine motion (as required for a 20 percent rating), or severe lumbosacral strain as described under the 40 percent rating criteria. Id. Further, a rating in excess of 10 percent for the Veteran's low back disability is not warranted for this period under the new rating criteria. Rather, even considering additional limitation due to pain or other factors during flare-ups or with repetitive motion, the evidence does not establish forward flexion limited to 60 degrees or less, combined range of motion of 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or contour. There is also no ankylosis. See 38 C.F.R. § 4.71a, DC 5237-5243 General Rating Formula (2012). Additionally, a rating in excess of 10 percent is not warranted for this period under the IVDS Formula. Although the Veteran had flare-ups of low back pain, he continued to maintain an active lifestyle and exercised regularly. During the September 2005 VA examination, he denied incapacitating episodes and stated that his flare-ups only last 1/2 day at a time. There is no indication of incapacitating episodes with a total duration of 2 weeks or more during a 12-month period for the period prior to March 21, 2007. As such, a higher rating is not warranted based on the IVDS Formula. See 38 C.F.R. § 4.71a, DC 5293 (2003) & DC 5243 (2012). Next, the Board finds that the Veteran's low back disability warrants a higher rating of 20 percent for the period from March 21, 2007, to March 10, 2008. Specifically, a March 21, 2007 VA treatment record notes complaints of low back pain, worse on the left, increased with activity. The provider measured forward flexion limited to 60 degrees, with extension and bilateral lateral flexion to at least 30 degrees. There was objective tenderness to palpation of the left lumbar spine, but the Veteran maintained normal gait with no assistive devices. VA treatment records dated in April, May, and August 2007 note similar complaints, and lumbar flexion continued to be measured at 60 degrees. Left lateral rotation was limited to 20 degrees in April 2007, but other lateral motion measurements were to at least 30 degrees. Another MRI was conducted in February 2008 for exacerbation of low back pain. A large disc herniation at L4/5 was noted to have progressed markedly since the previous MRI in September 2005, and other degenerative changes appeared stable. Similarly, in a March 2008 letter, a VA provider stated that the February 2008 MRI showed a number of degenerative changes, including at L4/L5 which had a "large midline posterior disc herniation resulting in spatial obliteration of central spinal canal and marked compression of underlying thecal sac/cauda equina," and which had progressed markedly since the last MRI. The Veteran had been referred to a spinal surgeon who had said that he would probably need spinal surgery in the future. The provider stated that the Veteran was being treated with steroids, muscle relaxants, pain medications, physical therapy, and chiropractic treatments, which gave only temporary and partial relief of pain and muscle spasms. The provider stated that the Veteran's back (and neck) had significantly impacted his lifestyle. This evidence meets the criteria for a 20 percent rating for the Veteran's low back disability. As applicable to the old criteria, the evidence shows frequent muscle spasm and limited forward flexion due to pain, as well as unilateral loss of lateral motion during flare-ups, such as during the April 2007 treatment session. See DC 5295 (2003). Moreover, the Veteran's forward flexion was limited to 60 degrees on several occasions when he sought treatment for exacerbations (or flare-ups). This would be considered moderate limitation under the old criteria. See DC 5292 (2003). However, a rating in excess of 20 percent is not warranted for this period under either of these old rating criteria. Rather, the evidence still did not rise to the level of severe limitation of motion or severe lumbosacral strain. Id. The Board notes that this level of limitation also meets the criteria for a 20 percent rating under the current codes. See DC 5237-5243, General Rating Formula (2012). However, the new criteria for a rating in excess of 20 percent are not met. There is no indication that the Veteran's forward flexion was limited to 30 degrees or less even during flare-ups or after repetitive motion, and there was no ankylosis. Id. Additionally, a rating in excess of 20 percent is not warranted for this period based on the alternate criteria for IVDS. Rather, the Veteran did not have incapacitating episodes with a total duration of at least 4 weeks, as required for the next higher rating of 40 percent. See 38 C.F.R. § 4.71a, DC 5293 (2003) & DC 5243 (2012). Finally, for the period from March 11, 2008, forward, when resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence of record warrants a 40 percent rating for his low back disability under the old rating criteria. Specifically, at a March 11, 2008 VA neurology consult, the Veteran reported that his low back pain was now worse with bending and twisting. He rated it at a level of 8 on a 10-point scale. He was tender to palpation in the lumbosacral spine, and was noted to have "markedly limited" flexion and extension, worse for flexion. A few weeks later, also in March 2008, the Veteran's lumbar flexibility was noted to have "improved significantly," but it was still measured at 50 degrees of forward bending (or flexion) and extension to 10 degrees. Private records dated from April to June 2008 reflect similar complaints of pain and muscle spasms. In a September 2008 VA record, the Veteran stated that he continued to have radiating low back pain, but that it had improved overall from several months ago due to stretching, and it was noted to be stable. The Veteran continued to complain of low back pain with flare-ups, which was worse with forward flexion, in November 2009 and February 2010 VA treatment sessions. Another MRI was conducted in December 2009 for a history of severe lumbar stenosis with worsening symptoms. In a February 2010 VA neurosurgery consult, the provider stated that surgery would not help the Veteran's condition. During an April 2010 VA examination, the Veteran reported constant and severe pain in the low back. He also reported flare-ups on a weekly basis for 1-2 days, often after carrying light loads, and stated that he is unable to get out of bed during these flare-ups. The Veteran now had an abnormal gait and used a cane, although there was no abnormal spinal curvature. There were objective muscle spasms and tenderness, as well as objective pain with motion. Range of motion was limited in all planes, with forward flexion to 60 degrees, extension to 20 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 20 degrees. The Veteran had another VA examination in October 2010. He complained of progressive pain, stiffness, and radicular symptoms since the last exam, with poor response to treatment. He reported severe weekly flare-ups lasting for hours. The Veteran continued to have abnormal gait and objectively shown muscle spasms. Range of motion was forward flexion to 70 degrees, extension to 15 degrees, and bilateral lateral flexion and rotation to 20 degrees. There was objective pain with motion and after repetitive motion, but no additional limitation after repetition. The Veteran continued to receive treatment for low back pain and difficulty walking in 2011 and 2012. He was again examined for compensation purposes in January 2012. At that time, he complained of daily pain and stiffness with flare-ups. The Veteran reported being in bed three times for a total of 2-3 weeks due low back flare-ups, and the examiner noted at least 2 weeks but less than 4 weeks of incapacitating episodes over the last 12 months. Range of motion was again limited in all planes, with forward flexion to 50 degrees, and the Veteran refused to complete repetitive-use testing because he did not like to aggravate his back. The Veteran used a back brace regularly and a cane occasionally due to the low back. Based on the foregoing, the Board notes that there was some fluctuation in the Veteran's measured range of motion during this period, including some improvement in April and October 2010. Nevertheless, the Board finds that the evidence meets the criteria for a 40 percent rating under the old rating codes. In particular, the Veteran was noted to have "marked" limitation of forward flexion on March 11, 2008, and it was measured to 50 degrees after significant improvement a few weeks later. This is generally consistent with the Veteran's later reports of severe pain and functional impairment during flare-ups, which must be considered under DeLuca and Mitchell. X-rays and MRIs showed arthritic or degenerative changes and narrowing of joint space, as well as disc bulges. Further, the Veteran had loss of lateral lumbar motion in all planes during VA examinations in April 2010, October 2010, and January 2012. Accordingly, the evidence warrants a 40 percent rating under the old diagnostic code for severe lumbosacral strain. See DC 5295 (2003). This is the highest available rating under that code, and there is no evidence of ankylosis to warrant a higher rating. See DCs 5286-5289 (2003). A rating in excess of 40 percent for the Veteran's low back disability is also not warranted for this period under the currently applicable criteria, as there is no evidence of ankylosis. See DC 5237-5243, General Rating Formula (2012). Further, a higher rating is not warranted for this period based on incapacitating episodes due to IVDS. Although the Veteran complained of being unable to get out of bed during flare-ups during the April and October 2010 VA examinations, the October 2010 examiner summarized that this amounted to at least 2 weeks but less than 4 weeks. This is generally consistent with the other evidence. To be entitled to the next higher rating of 60 percent for IVDS, there must be a total of at least 6 weeks of incapacitating episodes during a 12-month period. See 38 C.F.R. § 4.71a, DC 5293 (2003) & DC 5243 (2012). This is not shown in the Veteran's case. Neurological impairment The AOJ granted separate ratings for the Veteran's right and left lower extremities during the course of the appeal. Specifically, he was granted a separate rating for left lower extremity radiculopathy, effective as of February 8, 2008, currently evaluated as 10 percent disabling prior to January 24, 2012; and as 20 percent disabling from January 25, 2012, forward. The Veteran was also granted a separate rating for right lower extremity radiculopathy, effective as of January 25, 2012, with a 20 percent rating. The Veteran asserts that he also has bladder impairment and erectile dysfunction due to his low back disability. As noted above, the General Rating Formula allows for a separate rating for any objective neurological impairment associated with a back disability. See 38 C.F.R. § 4.71a (2012). As such, these disabilities are also on appeal before the Board. Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. 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 which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia 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. The Veteran is service-connected for bilateral sciatic radiculopathy. An 80 percent evaluation will be assigned where there is complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent evaluation is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. Neuritis and neuralgia of the sciatic nerve are rated using these criteria under DCs 8620 and 8720, respectively. The Veteran's lay statements are generally consistent with the medical evidence of record concerning his lower extremity symptoms. The medical evidence reflects complaints of pain radiating to the lower extremities during flare-ups, as well as occasional tingling sensation in the toes in the right or left foot, as early as May 2003 (in the right foot) and January 2005 (in the left foot). Further, a February 2004 MRI report showed degenerative disc disease, worse at L4-L5, and thecal sac compression or crowding of the cauda equina nerve roots. However, neurological examination was subsequently found to be objectively normal, including sensation, motor strength, and reflexes, and no radiculopathy or other abnormality was diagnosed. See, e.g., March 2004 VA treatment record and September 2005 VA examination report. As such, a compensable rating is not warranted at these times, as there was no objective neurological abnormality. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Moreover, the Veteran's lower extremity symptoms did not rise to a level approximating mild incomplete paralysis at that time. See 38 C.F.R. § 4.124a, DC 8520. In contrast, as discussed below, the preponderance of the evidence establishes that the Veteran had objective neurological impairment in the left lower extremity as of March 21, 2007, and in the right lower extremity as of January 9, 2008. Specifically, VA records dated from March 21, 2007, through November 2007 consistently show decreased reflexes of 1+ in the left knee and ankle, and decreased sensation in the left lower leg. There was no motor impairment or radiating pain. A January 9, 2008 VA treatment record notes that the Veteran had been having worsening symptoms since November 2007. He complained of pain in both hips, as well as pain radiating down the right lower extremity, and subjective weakness and tingling in the right leg. Knee reflexes and motor strength were normal bilaterally. An MRI was conducted on February 8, 2008, for exacerbation of low back pain "now with numbness of the right foot and subjective weakness of in the right leg." The Veteran's degenerative spine condition was noted to have progressed. A electrodiagnostic study was conducted in March 2008 for constant pain radiating to the right lower extremity. Physical examination at that time showed normal reflexes, gait, and motor strength, with no atrophy, but the study was interpreted to show right L4-5 radiculopathy. At a VA neurology consult a week later, also in March 2008, the Veteran had objective abnormalities in the right lower extremity. Specifically, motor testing was 4+ out of 5 to right dorsiflexion and plantar flexion, sensation was decreased to pinprick and light touch, and reflexes were +1-2 out of 4. There was no atrophy. The Veteran was noted to have "significant radiculopathy both radiographically and via electrodiagnostic testing" at that time, as well as in a follow-up record a few weeks later, also in March 2008. In an April 2008 private neurological session, the provider noted that the Veteran had been treated for radiating pain in the left or right leg over many years. Current complaints were of numbness and radiating pain into the right leg. Examination showed good motor strength, knee and ankle reflexes of 1+, intact sensation, and normal gait and coordination. In a May 2008 private session, the Veteran continued to complain of right lower extremity symptoms including pain radiating to the great toe, paresthesias, and weakness. He also complained of bilateral thigh pain. The neurologist noted that an MRI (conducted in February 2008) showed impingement of the left nerve root. Testing during the treatment session showed normal motor strength bilaterally, but decreased sensation in the right S1 nerve distribution. Reflexes were also decreased in both lower extremities, with as absent reflexes at the ankles and reflexes of 1+ at the knees. The Board notes that this is fairly consistent with VA records showing decreased reflexes in the left lower extremity starting in March 2007. In June 2008, a private primary care provider noted that the Veteran had been prescribed physical therapy for lower lumbar radiculitis in February 2008, and that the latest MRI showed rapid deterioration of his L4-L5 pathology. The Veteran again complained of radiating pain in the left leg in September 2008. In February 2010, a VA neurosurgery provider noted decreased reflexes over the patella and ankle, and that the Veteran had diffuse degenerative disease of the spine. During the April 2010 VA examination, the Veteran reported sharp pain radiating to the left lower extremity, and there were objective abnormalities in both lower extremities. Specifically, deep tendon reflexes were 1+ at the knee and 0 (or absent) at the ankle bilaterally, and plantar reflexes were recorded as "mute." Motor function and tone were normal, with no atrophy. The examiner noted that there was better sensation overall in the right half of the body, and that the Veteran had diminished vibratory sense in stocking distribution in both lower extremities. These findings were both noted to be suggestive of non-spinal origin; however, the examiner diagnosed bilateral L4-5 radiculopathy. At the October 2010 VA examination, the Veteran complained of progressive pain and radicular symptoms in the lower extremities, including pain, numbness, and paresthesias, since the last exam. Bilateral deep tendon reflexes were 1+ at the knees and ankles, but plantar flexion was normal. There were dysesthesias and decreased sensation to pain or pinprick and light touch at the left L5 nerve distribution, with no reference to the right lower extremity. Bilateral motor testing was normal, except for at the left ankle and toe which were 4 out of 5. The examiner diagnosed motor and sensory radiculopathy. In a March 2011 VA treatment record, the Veteran's bilateral reflexes were measured as 2+ (or normal) at the knees and 1+ at the ankles. During the January 2012 VA examination, the examiner noted that the March 2008 electrodiagnostic studies showed right L4-5 radiculopathy. The Veteran again had reduced reflexes of 1+ at both knees and ankles. There was normal muscle strength, with no atrophy, and normal sensation to light touch. The Veteran's right lower extremity was noted to have severe intermittent radicular pain, severe paresthesias or dysesthesias, and severe numbness. The left lower extremity was noted to have moderate intermittent radicular pain, severe paresthesias or dysesthesias, and moderate numbness. The examiner summarized that there was moderate involvement of the sciatic nerve bilaterally. The Veteran again complained of intermittent pain down the legs in May 2012. Based on the foregoing, the Board finds that the Veteran's symptoms in the lower extremities have been of similar severity since neurological impairment was objectively shown in the left lower extremity as of March 21, 2007, and in the right lower extremity as of January 9, 2008. Further, the symptoms most nearly approximate moderate incomplete paralysis of the sciatic nerve throughout the respective periods on appeal. See 38 C.F.R. § 4.124a, DC 8520. Specifically, with respect to the left lower extremity, the evidence shows organic changes including objectively decreased reflexes in the ankle and knee from March 21, 2007, through November 2007. These symptoms later resulted in a diagnosis of left lumbar radiculopathy based on MRI and other studies. The Veteran had intermittently decreased reflexes in the left lower extremity from that point forward, most frequently at 1+ (or hypoactive). There were occasional measurements of 0 (or absent) reflexes in the ankle and one notation of "mute" plantar reflexes in April 2010, as well as normal (or 2+) in the knee, such as in March 2011. The Veteran has also had intermittent but frequent sharp pain in the left lower extremity, which was noted to be moderate in the January 2012 examination. He had intermittent subjective numbness and paresthesias, as well as objective decreased sensation. Numbness was noted to be moderate, and paresthesias were noted to be severe, in January 2012. The Veteran has generally had no motor or strength impairment, although there was 4 out 5 (or hyperactive) motor testing in the left ankle and toe in October 2010. The diagnosis at that time was motor and sensory neuropathy. Overall, the January 2012 VA examiner characterized the Veteran's symptoms as showing moderate involvement of the sciatic nerve in the left lower extremity. Although the Veteran's symptoms in the left lower extremity have fluctuated in severity since March 21, 2007, the Board finds that the evidence overall shows moderate impairment of the sciatic nerve, which warrants a 20 percent rating under DC 8520. The Board believes that this rating is more appropriate than the currently assigned rating of 10 percent for mild impairment prior to January 25, 2012, because the Veteran had pain as well as organic changes such as objectively decreased reflexes and sensation prior to that time. However, a rating in excess of 20 percent is not warranted for the left lower extremity because the Veteran's symptoms have been intermittent (with both increases and decreases in severity), and there has been no abnormal muscle tone or atrophy. As such, the evidence does not show moderately severe or severe impairment. Further, the symptoms do not approach the criteria for complete paralysis of the sciatic nerve. See DC 8520. Similarly, with respect to the right lower extremity, the evidence shows organic changes including tingling and numbness as of January 9, 2008. These symptoms later resulted in a diagnosis of right lumbar radiculopathy based on electrodiagnostic and other studies. As on the left, the Veteran has had intermittently decreased reflexes in the right lower extremity since March 2008, most frequently at 1+ (or hypoactive), with similar measurements as in the left lower extremity. The Veteran has also had intermittent but frequent sharp pain in the right lower extremity, which was noted to be severe in the January 2012 examination. He also had intermittent subjective weakness, tingling, numbness, and paresthesias, as well as objective decreased sensation. Paresthesias and numbness were noted to be severe in the January 2012 examination. The Veteran has generally had no motor or strength impairment, although there was 4 out 5 (or hyperactive) motor testing on the right side in March 2008. The October 2010 examiner diagnosed motor and sensory neuropathy. Overall, the January 2012 VA examiner characterized the Veteran's symptoms as showing moderate involvement of the sciatic nerve in the right lower extremity. Although the Veteran's symptoms in the right lower extremity have fluctuated in severity since January 9, 2008, the Board finds that the evidence overall shows moderate impairment of the sciatic nerve, which warrants a 20 percent rating under DC 8520. As on the left, the Veteran had not only pain but also organic changes such as objectively decreased reflexes and sensation throughout this period. However, a rating in excess of 20 percent is not warranted for the right lower extremity because the Veteran's symptoms have been intermittent (with both increases and decreases in severity), and there has been no abnormal muscle tone or atrophy. As such, the evidence does not show moderately severe or severe impairment of the sciatic nerve. Further, the Veteran's symptoms do not approach the criteria for complete paralysis of the sciatic nerve. See DC 8520. The Board notes that the Veteran has also complained of bladder impairment and erectile dysfunction, which he believes are related to his low back disability. See, e.g., September 2011 statement. However, these conditions have not been objectively linked to the back disability. The Veteran is not competent as a lay witness to provide an opinion in this regard. Rather, this question requires specialized knowledge, training, or experience due to the complex nature of the spine and the involved neurological systems. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA treatment records includes multiple references to urinary problems (including frequent urge, urge incontinence, hesitation or retention, nocturia, obstructive voiding symptoms), as well as erectile dysfunction. However, the Veteran has been consistently diagnosed with LUTS (lower urinary tract symptoms) and/or BPH (benign prostatic hypertrophy). Further, he has been treated with medications used for BPH, including terazosin, finasteride, proscar, and saw palmetto, which were noted to relieve his urinary symptoms at times. See, e.g., records dated in November 2004, October 2008, April 2009, and September 2010. Additionally, the April 2010 VA examiner stated that the Veteran's urinary complaints and erectile dysfunction are not linked to his low back disability but, rather, are related to BPH. This opinion was based on review of all evidence, and it is consistent with the VA treatment records. The Board notes that a private neurological provider indicated in April 2008 that the Veteran's urinary symptoms were indicative of early cauda equina syndrome related to the low back. However, this provider does not appear to have had all of the Veteran's medical records available, to include those related to his treatment and medications prescribed for LUTS or BPH. Therefore, although this provider was competent to render such an opinion, the Board finds that his opinion is outweighed by the other evidence of record, to include the VA examiner's opinion. General considerations The Board has considered all possibly applicable diagnostic codes in coming to the conclusions discussed above as to the Veteran's disabilities in the low back and lower extremities. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings are appropriate as discussed, based on symptoms that warrant different ratings during distinct periods on appeal. However, the Veteran's symptoms were otherwise relatively stable, and any increases in severity during each of the periods did not rise to the level to warrant a higher rating. See Fenderson, 12 Vet. App. at 126-27. The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Here, the manifestations of the Veteran's low back disability and neurological symptoms in the lower extremities are fully contemplated by the schedular rating criteria. Briefly, the manifestations of the low back disability are varying extents of pain, painful and limited motion, radiating pain, and muscle spasms. The manifestations in the lower extremities are varying extents of pain, tingling, and abnormal sensation, reflexes, and motor function. The evidence is against a finding of associated bowel or bladder impairment or erectile dysfunction. Therefore, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his disability picture. Moreover, there have been no relevant hospitalizations during the appeal. Although the Veteran's low back and lower extremity manifestations affected his prior work, such interference is contemplated by the schedular rating criteria and the currently assigned ratings, which are intended to account for considerable interference with employment. See 38 C.F.R. § 4.1. As such, no referral for consideration of an extra-schedular rating is necessary. See Thun, 22 Vet. App. at 115-16. The issue of entitlement to a TDIU has been referred to the AOJ for appropriate action, as the Veteran has reported being unable to work due to his cervical and lumbar spine disabilities. As such, it will not be discussed further at this time. The Veteran's ratings for the low back and both lower extremities have been amended as discussed above based, in part, on the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against a rating in excess of those discussed and assigned herein, or a separate rating for bowel or bladder impairment. As such, the Veteran's claims must be denied in this respect. 38 C.F.R. § 4.3. ORDER For the period prior to March 21, 2007, a rating of 10 percent, but no higher, for the Veteran's low back disability is granted. For the period from March 21, 2007, through March 10, 2008, a rating of 20 percent, but no higher, for the Veteran's low back disability is granted. For the period from March 11, 2008, forward, a rating of 40 percent, but no higher, for the Veteran's low back disability is granted. For the period from March 21, 2007, through January 24, 2012, a rating of 20 percent, but no higher, for left lower extremity sciatic radiculopathy is granted. For the period from January 25, 2012, forward, a rating in excess of 20 percent for left lower extremity sciatic radiculopathy is denied. For the period from January 9, 2008, through January 24, 2012, a rating of 20 percent, but no higher, for right lower extremity sciatic radiculopathy is granted. For the period from January 25, 2012, forward, a rating in excess of 20 percent for right lower extremity sciatic radiculopathy is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs