Citation Nr: 1306591 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 07-24 807 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a disability manifested by neck pain, including as secondary to service-connected disabilities. 2. Entitlement to service connection for a disability manifested by left thumb pain, including as secondary to service-connected disabilities. 3. Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy with incomplete foot drop. 4. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy with incomplete foot drop. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1971 to July 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Los Angeles, California VA Regional Office. The claims file is now in the jurisdiction of the Chicago, Illinois VA Regional Office. In September 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is included in the claims file. In February 2012, the Board remanded the matters for additional development. FINDINGS OF FACT 1. A neck disability was not manifested in service, arthritis of the cervical spine was not manifested in the first year following the Veteran's discharge from active duty, and the preponderance of the evidence is against a finding that the Veteran's current neck disability is related to his service or was caused or aggravated by his service-connected radiculopathy of the lower extremities. 2. A left thumb disability was not manifested in service, arthritis of the thumb was not manifested in the first year following the Veteran's discharge from active duty, and the preponderance of the evidence is against a finding that the Veteran's current left thumb disability is related to his service or was caused or aggravated by his service-connected radiculopathy of the lower extremities. 3. At no time during the appeal period is the Veteran's right lower extremity radiculopathy with incomplete foot drop shown to have resulted in impairment greater than moderately severe incomplete paralysis. 4. At no time during the appeal period is the Veteran's left lower extremity radiculopathy with incomplete foot drop shown to have resulted in impairment greater than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Service connection for a neck disability, to include as secondary to radiculopathy of the lower extremities, is not warranted. 38 U.S.C.A. 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. Service connection for a left thumb disability, to include as secondary to radiculopathy of the lower extremities, is not warranted. 38 U.S.C.A. 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 3. A rating in excess of 40 percent is not warranted for right lower extremity radiculopathy with incomplete foot drop. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code (Code) 8520 (2012). 4. A rating in excess of 20 percent is not warranted for left lower extremity radiculopathy with incomplete foot drop. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code (Code) 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. A March 2005 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A June 2009 letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. At the September 2011 Travel Board hearing before the undersigned, he was advised of what is needed to substantiate the claims; his testimony reflects that he is aware of what is still needed to substantiate the claims. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in September 2005, March 2009, and April 2012, which will be discussed in greater detail below, though the Board finds these examinations to be adequate as they included both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Id. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and after October 10, 2006). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Veteran's theory of entitlement as to both service connection claims in this appeal is primarily one of secondary service connection. He contends that a disability manifested by neck pain, as well as a disability manifested by left thumb pain, developed secondary to his service-connected radiculopathy of both lower extremities. In pertinent part, service connection has been established for back disability, rated 20 percent from January 3, 2007 to December 1, 2009, and 10 percent from that date. As the Veteran has also advanced a contention that the disabilities of the neck and left thumb may have begun during service and persisted, the Board will also address a direct (i.e., to service) causation theory of entitlement to service connection. Neck disability The Veteran's STRs are silent for any complaints, treatment, or diagnosis regarding the neck. On April 1974 service separation examination, the head, face, neck, and scalp were normal on clinical evaluation. On February 1987 treatment, the Veteran had full and asymptomatic active range of motion of the cervical spine. On April 1988 treatment, the Veteran reported neck pain. On MRI of the cervical spine, the intervertebral disc spaces showed no aberration of signal intensity. No definite herniated intervertebral disc was identified. The subarachnoid space gave a uniform thickness ventrally and the spinal cord showed no focal abnormality. On September 1992 VA spine examination, the Veteran's neck range of motion was normal except that rotation and lateral flexion to the right were slightly limited. No diagnosis was made regarding the neck. On November 1999 VA treatment, the Veteran complained of neck soreness and tenderness with "electrical charges". On physical examination, there was no limitation of movement of the neck. On October 2000 VA treatment, X-ray results showed straightening of the normal cervical lordotic curve and degenerative disc disease of the cervical spine. On December 2001 private treatment, the Veteran complained of soreness and stiffness in the cervical region; he reported that his neck felt "frozen up or locked". He reported soreness whenever he moved his head, particularly between the shoulders, which started the day before. He reported a fall in 1999 when he struck the side of his face against a wall and reported chronic neck trouble since that time. The assessments included acute mid-thoracic pain and secondary chronic cervical complaints. On January 2003 VA examination, the Veteran reported that he had had pain in the cervical spine since 1999 when he fell at a skating rink due to his right leg giving out. He complained of constant pain in the lower cervical area. An MRI of the cervical spine showed degenerative changes present, the greatest involving the left neural foramina at C4 through C5 and C5 through C6. Following a physical examination, the impression was degenerative changes of the cervical spine involving the left neural foramina at C4-C5 and C5-C6. No opinion was offered regarding etiology. On April 2004 VA treatment, an MRI of the cervical spine showed mild disc osteophyte at C3-4 with bilateral severe neural foraminal narrowing, disc osteophyte with mild spinal canal stenosis and bilateral neural foraminal narrowing at C4-5 and C5-6, and mild neural foraminal narrowing from uncinate degenerative changes at C6-7. Uncinate degenerative changes were present diffusely throughout the cervical spine. An April 2008 MRI of the cervical spine showed degenerative changes of the cervical spine. On March 2009 VA examination, the Veteran reported the onset of cervical spine degenerative joint disease in 2005 when he tripped and fell against a refrigerator in the garage and twisted his neck to the side. He then fell in a parking lot in 2005, hitting his head against a car, after which he noted shooting pains down his arms. He reported neck pain when moving his neck from side to side, more limited sideways flexion to the right, and shooting pains down the arm when he would turn the neck far to one side or the other. X-ray results showed significant degenerative changes of the lower cervical spine. Following a physical examination, the diagnosis was cervical spine degenerative joint disease. The examiner opined that the Veteran's degenerative disc disease of the cervical spine was not caused by or a result of falls sustained as the result of his service-connected incomplete foot drop of the right and left feet; the examiner explained that the Veteran did not have foot drop of the left foot, the foot drop of the right foot was mild, and the Veteran had aged whereas the aging process is the strongest risk factor for the development of degenerative disc disease. At the September 2011 Travel Board hearing, the Veteran testified that he incurred this disability when he was walking into his garage and he tripped and fell; as he fell forward, his face hit the side of a refrigerator and he slid down, causing a twisting injury to the neck from the fall. In February 2012, the Board remanded the matter to obtain outstanding VA treatment records according to the Veteran's testimony, and to afford him a new VA nexus examination. On April 2012 VA examination, the Veteran denied any incapacitating episodes for the cervical spine during the previous 12 months. Upon questioning, the Veteran did not offer any conditions of his neck other than that it hurt sometimes and that he sought treatment for it. On physical examination, no objective abnormalities were noted of the cervical sacrospinalis. Following a physical examination, the diagnosis was mild degenerative arthritis of the cervical spine. Citing the pertinent medical evidence in light of the most pertinent and credible medical information and sources, the examiner opined that the most likely etiology was an age related condition and it is less likely as not that the neck disability is related (secondary) to the bilateral lower extremity radiculopathy, specifically the contention that the veteran had been falling and this had caused an increased cervical spine degenerative arthritis. The examiner stated that the Veteran's foot drop may have caused him to fall but these falls did not cause an increased or advanced degeneration of the cervical spine. The examiner found that the Veteran had been dealing with cervical spine arthritis (though not symptomatic) before he began falling due to his lumbar spine condition with radiculopathies. The examiner noted the Veteran's age of 59 years old and opined that he had roughly the expected amount of normal progression of cervical spine arthritis. The examiner cited the earliest cervical spine X-ray (in October 2000), an EMG study in January 2003 showing no evidence of cervical radiculopathy, and 2003 neurology consults noting the Veteran's main concerns were his back problems and there was little to no mention of a neck condition. The examiner also referred to several texts regarding chronic conditions stemming from an acute injury, emergency medicine and trauma, rheumatology and kinesiology, and biomechanics. The Veteran has also submitted VA treatment records through March 2012 showing findings similar to those on the VA examinations outlined above. It is not shown that a neck disability became manifest in service and persisted, or that arthritis of the cervical spine was manifested in the first postservice year. The Veteran's STRs do not contain any evidence of persistent complaints pertaining to the neck during service, or any evidence of complaint, finding, treatment or diagnosis regarding the neck during service. There is also no evidence of postservice continuity of neck complaints; by the Veteran's own accounts, such complaints began in approximately either 1999 or 2005, many years after separation from service. Postservice evaluation/treatment records provide no indication that any neck disability may somehow be directly related to the Veteran's service. Accordingly, service connection for a neck disability on the basis that it was incurred or aggravated in service, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. § 1112), is not warranted. Inasmuch as any reports of longer-existing neck complaints or symptoms are inconsistent with, and contradicted by, the Veteran's own accounts on examination regarding the onset of such problems, such reports are deemed obviously self-serving, and the Board finds them not credible. The preponderance of the evidence is also against the Veteran's alleged secondary service connection theory of entitlement to the benefit sought. On April 2012 VA examination (the report of which the Board found adequate and probative), the examiner opined that the Veteran's neck complaints are unrelated to his service-connected lower extremity disabilities. The provider noted the history of the claimed disability, and thoroughly explained the rationale for the opinion. The examiner provided further rationale for the opinion by identifying other etiological factors for the neck complaints, including chronic degenerative changes associated with aging. The examiner noted that a review of generally accepted medical literature found no support for the Veteran's alleged theory of causation. The Board finds this evidence highly probative in the matter at hand. Because there is no competent (medical opinion/treatise) evidence to the contrary with opinion supported by any explanation, the Board finds the April 2012 VA examiner's opinion to be persuasive. Regarding the Veteran's own opinion that his neck disability is due to his service-connected lower extremity disabilities, he is a layperson (with no demonstrated or alleged expertise in determining whether there is a nexus between arthritis of the spine with disabilities of other body parts); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion on this question of causality (which is medical in nature and beyond lay observation) has no probative value. See Jandreau, supra, at 1372, 1377. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a neck disability. Accordingly, it must be denied. Left thumb disability The Veteran's STRs are silent for any complaints, treatment, or diagnosis regarding the left hand or thumb. On April 1974 service separation examination, the upper extremities were normal on clinical evaluation. On January 1987 treatment, the Veteran reported that he suffered an injury in September 1986 when he fell with his hand on a door knob and caught himself with the left upper extremity. He reported right shoulder pain on treatment, with no mention of the left thumb. On May 2001 VA treatment, the Veteran complained of falling due to a right drop-foot causing him to "step wrong" and stated that he had hurt his hand. On physical examination, tenderness and swelling was noted to the left first metacarpal. The impression was post traumatic synovitis of the left first metacarpal. X-ray results showed a normal left hand. On June 2001 VA treatment, the Veteran complained of an injury to his left thumb when he fell and jammed it in April 2001; he reported swelling and discomfort in the metacarpal since then. He denied any previous problems. Examination of the left thumb revealed prominence of the radial collateral ligament as well as some laxity to the ligament. X-rays were noted to be normal. The impression was a partial tear of the radial collateral ligament, metacarpal of the left thumb. On April 2004 VA examination, the Veteran reported that he fell on a flexed left thumb in 2002, and had constant pain in the thumb and the metacarpophalangeal joint with swelling, stiffness, and decreased endurance of the thumb. He reported that he had not had any surgeries, dislocation, or recurrent subluxation of the thumb, and he was able to do his activities of daily living despite the left thumb condition. On physical examination, there was pain and swelling over the left thumb metacarpophalangeal joint. The assessment was pain in the metacarpophalangeal joint of the left thumb. No opinion was offered regarding etiology. On March 2009 VA examination, the Veteran reported the onset of a left thumb disability in 2001 when he fell forward with his hands out and caught the left thumb in the fall, "jamming" it. He reported decreased range of motion of the left thumb, reduced grip of the thumb, and he reported that it affected him when he tried to tie fish flies. On physical examination, there was objective evidence of pain and a less than one inch gap was noted between the left thumb pad and the fingers. A weak grip was noted for the left hand. X-rays showed no fracture or significant degenerative change of the left hand. The diagnosis was left thumb condition/left thumb strain. The March 2009 VA examiner opined that the Veteran's left thumb strain is less likely as not (less than 50/50 probability) caused by or a result of or due to a fall sustained in April 2001. The examiner stated that it is possible the Veteran fell at that time onto outstretched hands; the first record of the event is a claim made by the Veteran two months afterward. The examiner noted that there is a significant lack of time when the Veteran did not seek care for this condition; at that time, the medical record indicates laxity of the radial collateral ligament. The examiner noted that the radial collateral ligament attaches from the radial styloid to the scaphoid, trapezium, and base of the first metacarpal; and this ligament limits ulnar deviation of the wrist and is located at the very base of the index finger. The examiner opined that this injury is not typical of a fall onto outstretched hands as the Veteran described. The examiner noted that VA examination showed a normal X-ray of the hands with preserved joint spaces which would not be consistent with a "jammed thumb". The examiner noted that the Veteran had decreased range of motion of the thumb on physical examination, and opined that the current symptomatology did not match the described injury. The examiner opined that the Veteran's injuries did not match the typical injury pattern seen in patients who fall onto outstretched hands. Based on a review of the available evidence, the STRs, and pertinent medical literature, the examiner opined that the Veteran's left thumb strain is less likely as not caused by or a result of a fall sustained in April of 2001. At the September 2011 Travel Board hearing, the Veteran testified that his thumb injury was incurred due to falls caused by his bilateral lower extremity disabilities. In February 2012, the Board remanded the matter to obtain outstanding VA treatment records according to the Veteran's testimony. The Veteran has submitted VA treatment records through March 2012 showing findings similar to those on the VA examinations outlined above. It is not shown that a left thumb disability became manifest in service and persisted, or that arthritis of a thumb was manifested in the first postservice year. The Veteran's STRs do not contain any evidence of persistent complaints pertaining to the thumb during service, or any evidence of complaint, finding, treatment or diagnosis regarding the thumb during service. There is also no evidence of postservice continuity of left thumb complaints; by the Veteran's own accounts, such complaints began in approximately 2001. Postservice evaluation/treatment records provide no indication that any thumb disability may somehow be directly related to the Veteran's service. Accordingly, service connection for a left thumb disability on the basis that it was incurred or aggravated in service, or on a presumptive basis (for arthritis as a chronic disease under 38 U.S.C.A. § 1112), is not warranted. Inasmuch as any reports of longer-existing left thumb complaints or symptoms are inconsistent with, and contradicted by, the Veteran's own accounts on examination regarding the onset of such problems, such reports are deemed obviously self-serving, and the Board finds them not credible. The preponderance of the evidence is also against the Veteran's alleged secondary service connection theory of entitlement to the benefit sought. On March 2009 VA examination (the report of which the Board found adequate and probative), the examiner opined that the Veteran's left thumb complaints are unrelated to his service-connected lower extremity disabilities. The provider noted the history of the claimed disability, and thoroughly explained the rationale for the opinion. The examiner provided further rationale for the opinion by explaining that the contemporaneous 2001 treatment records indicate left hand findings inconsistent with the injury as described by the Veteran. The examiner noted that a review of generally accepted medical literature found no support for the Veteran's alleged theory of causation. The Board finds this evidence highly probative in the matter at hand. Because there is no competent (medical opinion/treatise) evidence to the contrary with opinion supported by any explanation, the Board finds the March 2009 VA examiner's opinion to be persuasive. Regarding the Veteran's own opinion that his left thumb disability is due to his service-connected disabilities, he is a layperson (with no demonstrated or alleged expertise in determining whether there is a nexus between arthritis of a thumb with disabilities of other extremities); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion on this question of causality (which is medical in nature and beyond lay observation) has no probative value. See Jandreau, supra, at 1372, 1377. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a left thumb disability. Accordingly, it must be denied. Increased ratings for bilateral radiculopathy with incomplete foot drop Disability evaluations are determined by application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Veteran's bilateral lower extremity radiculopathies with incomplete foot drop are rated under Code 8520 (for impairment of the sciatic nerve). 38 C.F.R. § 4.124a. Incomplete paralysis of the sciatic nerve warrants a 20 percent rating when moderate, a 40 percent rating when moderately severe, and a 60 percent rating when severe with marked muscular atrophy. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "moderate", "moderately severe", and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just". 38 C.F.R. § 4.6. Furthermore, use of descriptive terminology such as "moderate" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. The entire record must be considered. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Veteran's claim seeking increased ratings for his bilateral lower extremity radiculopathies with incomplete foot drop was received in February 2005. The relevant period for appeal is therefore from February 2004. On April 2004 VA treatment, the Veteran was noted to have chronic L5 radiculopathy per EMG and nerve conduction studies testing. He complained of right leg pain and cramping. He was also complaining of symptoms at L5-S1 starting in the left leg with some numbness. On physical examination, a motor exam was 5/5 throughout with normal tone and no pronator drift and no involuntary movements, except in the right lower extremity it was 4+ to 4-. Ankle reflexes were absent at the right knee and ankle and the left knee. Sensory testing was intact to pinprick, light touch and vibration, except it was decreased in L5 distribution bilaterally (absent on the right and 30 percent on the left) and somewhat reduced in S1 distribution bilaterally. The assessment was bilateral L5/S1 radiculopathy. On September 2004 VA neurology consult, the results of a nerve conduction study and EMG testing indicated bilateral L5 radiculopathies; the findings on the right were chronic while those on the left were new. On September 2005 VA spine examination, the Veteran complained of back pain radiating into the right hip and along the lateral left leg to the foot. He complained of cramping in the posterior leg, the left greater than the right, and weakness of the leg. He complained of paresthesias along the lateral right calf and foot and frequent falling. On physical examination, reflexes were 2+ and symmetrical except negative at both knees and the right ankle. There was a subjective decrease to sensation over the left foot but not following established dermatomal patterns nor reproducible. There was a subjective decrease to pin prick over the lateral aspect of the right foot and across the dorsum of the foot. Tiptoe walking was intact bilaterally. There was an incomplete give-way of the dorsiflexion of the right foot. The strength was variable as resistance was applied. No focal weakness was noted in the left lower extremity. On December 2006 VA neurology treatment, the Veteran complained of left foot drop since 2001, reporting that he could not dorsiflex the foot totally as he used to, and right foot drop since 1998; these caused him to fall and injure other areas including his left thumb and his neck. He reported back pain that at times radiated to the right hip area, burning in the tailbone and in the lateral calves and distal half of the feet on the plantar aspect. He reported cramps down his legs when walking. On physical examination, sensation was abnormal to pinprick in the lateral calves, right calves and the dorsum of the feet, right greater than left, but normal in the plantar aspect. Vibration was decreased in the feet. The impressions included bilateral L5 radiculopathies, the left leg since 2004 per EMG testing; the examination was stable since last seen in the neurology clinic in 2005. On March 2009 VA examination, the examiner noted that October 2007 neurological testing reflected chronic right L5 radiculopathy and diffuse underlying sensory greater than motor polyneuropathy. The Veteran reported subacute onset of radiculopathy of the right lower extremity in 1997; it currently caused him to stub his toe often and he had to watch when he climbed steps and had to hold the handrail when descending. He reported subacute onset of radiculopathy of the left lower extremity in 2006; he reported that the biggest problem with the left leg was cramps. He walked without the aid of a walker, cane, braces, or adaptive shoes. On physical examination, motor testing was largely normal with muscle strength of 5/5; 4/5 was shown on testing of the flexors and extensors of the right great toe, flexors and extensors of the right foot, gastrocnemus of the right foot, and the right hamstring. On sensory testing, vibration and light touch were decreased to the toes and plantar surfaces of both feet. On reflex testing, right knee and ankle reflexes were absent, and left knee and ankle reflexes were 1+. No muscle atrophy was noted. Mild right foot drop was noted; the Veteran was able to walk barefoot without a brace or cane with a steady gait. The diagnoses included mild radiculopathy with incomplete foot drop of the right lower extremity, including paralysis, neuritis, and neuralgia. The examiner noted that there was insufficient evidence to warrant a diagnosis of acute or chronic radiculopathy of the left lower extremity with incomplete foot drop or its residuals, although neuritis and neuralgia were noted to be present. Idiopathic mild muscle cramping of the hamstring muscle was also noted. The examiner opined that leg cramps can be idiopathic (the most common), associated with structural disorders or leg positioning, or related to extracellular fluid volume depletion and electrolyte disturbances. The examiner noted that the Veteran's leg was structurally intact, with no indication of electrolyte abnormality in the lab results and no indication of extracellular volume depletion. The examiner opined that it is possible the cramps were related to the position the Veteran would usually sit in or position himself in. The examiner stated that, with all other etiologies considered, the most common and probable etiology of the muscle cramps was benign idiopathic muscle cramps. The March 2009 VA examiner noted that the Veteran's right foot had remaining sensory function intact although marginally decreased. Regarding propulsion, it was noted on the day of examination that the Veteran was ambulating without an assistive device or brace, he had a barely perceptible alteration in his gait from the foot drop, and he was able to approximate a near normal gait with conscious control. However, regarding balance, he was able to walk over a level surface with a steady gait without requiring the use of a cane or a brace. The examiner opined that the Veteran would benefit from using a cane, although he declined to use it. The examiner opined that amputating the limb would not "fix" the foot drop as the source of the pathology was in the spinal column. The examiner noted that the Veteran had feeling in his feet and could feel where he placed them, and removing the foot would adversely affect his sense of balance, with which there was already a problem. The examiner clearly stated that the Veteran had a mild foot drop on the right foot and not a severe foot drop. Regarding the left foot, the examiner opined that the Veteran did not have a radiculopathy of the left lower extremity, with or without foot drop, therefore his gait was not affected by such disability and neither were his balance or propulsion. At the September 2011 Travel Board hearing, the Veteran testified that he did not use any brace or orthotic for his right leg; he testified that his altered gait was barely perceptible. He testified that he could walk on flat surfaces with a steady gait and without the assistance of a cane. He testified that he has been receiving treatment in the neurosurgery clinic at Iowa City VA Medical Center, including exercises, chiropractic treatments, and EMG and MRI testing. He testified that an EMG test showed that the fifth lumbar vertebra was almost to a Grade 4 spondyl and was starting to slide off the first sacral vertebra, and his physicians were worried about resulting damage to the use of both legs; he testified that he is soon to be scheduled for a back surgery to fuse the fifth lumbar vertebra in position. He testified that recent EMG testing showed his left lower extremity disability to be "a lot worse than what it was even back in 2009". He testified that his lower extremity disabilities cause him to stumble or trip approximately "1,500 times" per week just while walking due to the foot dragging; he testified that he primarily falls forward onto his hands, though he sometimes attempts to "grab something" to catch himself. In February 2012, the Board remanded the matters to obtain outstanding VA treatment records and to afford the Veteran a new VA examination to determine the current severity of the disabilities. On April 2012 VA examination, the Veteran reported right foot drop-foot and stated that he was beginning to get it in the left foot as well. He reported having "the creepy crawlys" in the right lower leg, as well as anesthesias in the right lower leg which were also beginning in the left leg. He reported cramping and curling toes in the left foot similar to what he experienced in the right foot. He stated that exertion caused his hamstring to cramp during the night. He reported severe pain down the sciatic nerves, greater on the right than the left, to the level of the posterior thigh. On physical examination, the Veteran had a wide stance in walking, and foot drop was not readily noted. All reflexes were normal on testing. Vibration and position sense were decreased in the right toes, foot, and lateral lower leg to the level of the knee; pinprick and light touch were absent, and extended pressure in the areas noted caused near complete loss of sensation discrimination. Vibration, position sense, and light touch were decreased in the left toes, foot, and lateral lower leg to the level of the knee; only pinprick was absent, and extended pressure in the areas noted caused near complete loss of sensation discrimination. Motor testing was normal with no muscle atrophy and normal muscle tone. March 2011 neurological testing was noted to show severe chronic L5 greater than S1 radiculopathy, and there also appeared to be a left L5 radiculopathy now as well. The diagnoses included bilateral neural foraminal stenosis at L3-S1 with noted radiculopathy right greater than left. On peripheral nerve testing, mild constant pain was noted to both lower extremities, moderate intermittent pain was noted to both lower extremities, and moderate numbness and paresthesias and/or dyesthesias were noted to both lower extremities. Muscle strength testing and reflex were each normal. Regarding the nerves affected and the severity of disability, the examiner diagnosed incomplete paralysis of the right sciatic nerve (although no level of severity was indicated) and a normal left sciatic nerve. Based on the foregoing, the Board finds that the Veteran's service-connected right lower extremity radiculopathy with incomplete foot drop has been no more than moderately severe, and thus warrants no more than a 40 percent rating under Code 8520. The Veteran clearly has neurological impairment of the right lower extremity, with foot-drop consistently noted on all examinations. However, he was able to walk barefoot with a steady gait without requiring a brace or cane on 2009 examination, foot-drop was not readily noted when he walked on 2012 examination, and motor strength testing was consistently normal on both examinations. It was specifically noted that there was not muscle atrophy. A preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for right lower extremity radiculopathy with incomplete foot drop and it must be denied. Regarding the left lower extremity radiculopathy with incomplete foot-drop, the Board finds this disability has been no more than moderately disabling, and thus warrants no more than a 20 percent rating under Code 8520. As noted, while the Veteran clearly has neurological impairment of the left lower extremity, the impairment is sensory only and, as it was not demonstrated on all examinations, is intermittent. A preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for left lower extremity radiculopathy with incomplete foot drop and it must be denied. The Board also has considered whether the Veteran is entitled to a greater level of compensation for his lower extremity radiculopathies on an extraschedular basis. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms". Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability and associated impairment of function throughout the entire appeal period under consideration is contemplated by the rating schedule and the assigned rating is therefore adequate, and no referral for an extraschedular rating is required. Finally, the record shows that the Veteran was granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) in a February 1999 rating decision. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is moot. See Shinseki v. Rice, 22 Vet. App. 447 (2009). ORDER Service connection for a disability manifested by neck pain, including as secondary to service-connected disabilities, is denied. Service connection for a disability manifested by left thumb pain, including as secondary to service-connected disabilities, is denied. A rating in excess of 40 percent for right lower extremity radiculopathy with incomplete foot drop is denied. A rating in excess of 20 percent for left lower extremity radiculopathy with incomplete foot drop is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs