Citation Nr: 1307015 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 09-08 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease, status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, to include radiculopathy of the bilateral lower extremities, prior to June 17, 2009. 2. Entitlement to a rating in excess of 40 percent, for degenerative disc disease, status post discectomy with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, to include radiculopathy of the bilateral lower extremities, beginning June 17, 2009. 3. Entitlement to a total disability rating based on individual unemployability for the time periods from December 2005 to May 2006 and from November 2007 to May 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In a December 2006 rating decision, service connection was granted for degenerative disc disease, status post discectomy with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, and an initial rating of 10 percent was assigned effective January 12, 2006. In January 2007, the Veteran filed a timely notice of disagreement as to the initial rating. Subsequently, the RO increased the rating for the Veteran's lumbar spine disability to 40 percent effective June 17, 2009, and granted separate ratings of 10 percent for radiculopathy of each lower extremity, associated with the lumbar spine disability, effective June 17, 2009. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). See Esteban v. Brown, 6 Vet. App. 259 (1994). Thereafter, in an April 2010 rating decision, the evaluations for radiculopathy of the right and left lower extremities were increased to 20 percent effective December 8, 2009. In a January 2013 written brief presentation, the Veteran's representative asserted that the effective date for the grant of separate ratings for sciatica associated with the Veteran's service-connected lumbar spine disability should be no later than April 27, 2007. As separate ratings for radiculopathy of the bilateral lower extremities were granted as neurological manifestations of the Veteran' service-connected lumbar spine disability, the claim for an earlier effective date for the grant of separate ratings for radiculopathy of the bilateral lower extremities is part and parcel of the Veteran's claim for an increased rating for his lumbar spine disability, properly before the Board, and will be addressed herein. In February 2008, the Veteran claimed entitlement to a temporary total rating for his service-connected lumbar spine disability based on a surgery on February 25, 2008 necessitating convalescence. He also indicated that he had been unable to work since November 4, 2007 due to his back disability. The RO granted a temporary total rating for the service-connected degenerative disc disease of the lumbar spine disability based on surgical treatment necessitating convalescence, effective from February 25, 2008 to March 31, 2008, pursuant to the provisions of 38 C.F.R. § 4.30. In his May 2008 notice of disagreement, the Veteran requested temporary total evaluations for the time periods from December 2005 to May 2006 and November 2007 to May 2008 when he could not work or progress with his vocational study because of his back disability. The RO subsequently denied this claim. Although this issue has been referred to as a claim for a temporary total evaluation for the periods from December 2005 to May 2006 and from November 2007 to May 2008 for service-connected degenerative disc disease of the lumbar spine, in essence, the Veteran is claiming unemployability due to his service-connected lumbar spine disability. Therefore, the Board construes this issue as a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for the aforementioned time periods, and has recharacterized the issue on appeal as captioned above. Concerning the issue of entitlement to a TDIU, the Board observes that in December 2009, the Veteran filed a claim of entitlement to a TDIU, which was granted in an April 2010 rating decision, effective June 17, 2009. In his December 2009 VA Form 21-8940, the Veteran indicated that he worked as a lab technician for a hospital from December 2006 to June 2009 and lost about 7 months from work, which corresponds to the 7 month time period from November 2007 to May 2008 for which he claiming unemployability due to his service-connected disabilities. Further, he does not claim entitlement to a TDIU for the time period from May 2008 to June 2009. Therefore, the Board's review of the Veteran's TDIU claim herein will not include the time period from May 2008 prior to June 17, 2009. In the January 2013 brief, the Veteran's representative raised new claims of entitlement to service connection for acquired mental disorder and entitlement to service connection for hypertension, to include as secondary to medications required for treatment of his service-connected disabilities. However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to a TDIU for the periods of December 2005 to May 2006 and from November 2007 to May 2008 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to June 17, 2009, the Veteran's degenerative disc disease, status post discectomy with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, was manifested by subjective complaints of pain, stiffness, fatigue, spasms and limitation of motion, at most, to 40 degrees of forward flexion, 10 degrees of extension, 5 degrees of bilateral lateral flexion, and 5 degrees of bilateral lateral rotation; the combined range of motion of the thoracolumbar spine, at the least, was 70 degrees. Forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine was not shown. 2. Beginning June 17, 2009, the Veteran's degenerative disc disease status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, has been manifested by limitation of motion, with subjective complaints of spasms, stiffness, and pain on repetitive motion but without any further loss of range of motion; unfavorable ankylosis of the entire thoracolumbar spine is not indicated. 3. The Veteran's bilateral lower extremity radiculopathy was no more than moderate. 4. The Veteran submitted a claim of entitlement to service connection for degenerative disc disease, status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips on January 12, 2006, which was granted in a December 2006 rating decision effective January 12, 2006. He filed a notice of disagreement as to the initial evaluation assigned for his service-connected lumbar spine disability on December 5, 2007. 5. It is factually ascertainable that the Veteran had lumbar radiculopathy in the right and left lower extremities on November 15, 2007. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent, but no greater, for degenerative disc disease status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, prior to June 17, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5239 (2012). 2. The criteria for a rating greater than 40 percent for degenerative disc disease status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, beginning June 17, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5239 (2012). 3. The criteria for a rating of 20 percent, but no greater, for radiculopathy of the right lower extremity, prior to December 8, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for a disability rating of 20 percent, but no greater, for radiculopathy of the left lower extremity, prior to December 8, 2009, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. The criteria for a rating greater than 20 percent for radiculopathy of the right lower extremity, beginning December 8, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 6. The criteria for a rating greater than 20 percent for radiculopathy of the left lower extremity, beginning December 8, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 7. The criteria for an earlier effective date of November 15, 2007 for the grant of separate ratings for radiculopathy of the right and left lower extremities have been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.155(a), 3.400(o) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claims concerning the proper disability ratings to be assigned to his service-connected lumbar spine disability with radiculopathy of the bilateral lower extremities arise from his disagreement with the initial disability rating assigned to this condition following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice as to these claims is needed under VCAA. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Also, the RO determined that no records relating to the Veteran are available from the Social Security Administration. See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). VA examinations were conducted in July 2006, March 2008, June 2009 and January 2010. 38 C.F.R. § 3.159(c) (4). Each examiner conducted a physical examination, recorded clinical findings to include range of motion and neurologic testing, and documented the Veteran's subjective complaints. As these examinations included sufficient detail as to the current severity of his service-connected lumbar spine disability, the Board concludes that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Although the VA examinations obtained in July 2006, June 2009 and January 2010 do not indicate that the Veteran's claims file was reviewed, the Board finds that this does not constitute a prejudicial error. Here, an increase in the disability ratings is at issue and the present level of the Veteran's service-connected disabilities is of primary concern. As it would not change the objective and dispositive findings made during the VA examinations, review of the claims file was not required. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997). The Board notes the Veteran's representative's contentions that the March 2008 VA examination was inadequate on its face for failure to consider 38 C.F.R. §§ 4.10, 4.40, 4,46 and 4.50, as well as DeLuca v. Brown, 8 Vet. App. 202 (1995), and that the June 2009 VA examiner made no attempt to measure painful motion during the examination. However, the Board's review of the referenced records indicates otherwise. The July 2006 VA examiner specifically noted that pain did not cause any significant decreased range of motion and that there was no further decreased motion after repetitive use. The June 2009 VA examiner mentioned that no additional limitations in the range of motion were shown after three repetitions, which indicates that the examiner attempted to measure any additional limitation in motion on repetitive movement. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran's lumbar spine disability is currently rated under Diagnostic Codes 5299-5239. See 38 C.F.R. § 4.27 (2012) (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). Diagnostic Code 5239 directs that spondylolisthesis or segmental instability be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula, a 10 percent evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. 38 C.F.R. § 4.71a, General Rating Formula. A 20 percent evaluation is for application when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 rating for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are rated separately under an appropriate diagnostic code. Id. at Note (1). When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id., at 206. Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements. Factors involved in evaluating and rating disabilities of the joints include: weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Degenerative Disc Disease of the Lumbar Spine A December 2005 letter from a private chiropractor stated that the Veteran was seen for complaints of low and upper back pain and that examination and x-ray findings revealed poor lumbosacral range of motion due to right lumbar scoliosis and excessive right pelvic tilt. It was indicated that the Veteran was treated with chiropractic manipulation therapy. A January 2006 VA treatment report noted that the Veteran had back pain that was tender in the mid lower spine and that there was full range of motion with pain upon standing. Another report in the same month noted that the Veteran's back pain was exacerbated by working in the laboratory as a medical technician intern during which he was required to walk a lot, lean over, reach, bend and perform bedside phlebotomy. Another treatment report noted that the Veteran's low back pain was consistent with pain from a locked right sacroiliac joint. A February 2006 VA physical therapy report indicated that the Veteran had freely moving sacroiliac joints and rated pain at 1 on a scale of 1 to 10. The Veteran underwent a VA fee-based examination in July 2006. He reported back spasms and scoliosis due to his hip problem. He further reported stiffness, feeling weak, pain, spasms and burning sensation in his back. He rated pain at 5 to 6 on a scale of 1 to 10. He was able to function with medication. It was noted that the Veteran was bedridden for three months due to back pain. On physical examination, there was no radiation of pain or muscle spasms; there was tenderness paravertebrally in the lumbar spine. No ankylosis of the thoracolumbar spine was shown. The range of motion testing revealed 90 degrees of forward flexion without pain; 30 degrees of extension without pain; 30 degrees of lateral flexion with pain between 25 to 30 degrees, bilaterally; and 30 degrees of lateral rotation, bilaterally, with no pain. The examiner noted that the pain did not cause any significant decreased range of motion and that there was no further decreased range of motion after repetitive use. There was fatigue and lack of endurance, but no weakness or incoordination was shown. The examiner further noted that there was no evidence of intervertebral disc syndrome or any radiculopathy in the lumbar spine. The diagnosis was functional scoliosis noted by a chiropractor, with no intervertebral disc syndrome; subjective factors included painful range of motion of the lumbar spine. June 2006 VA treatment reports reflect that the Veteran continued to complain of back pain and that he was taking Vicodin for relief. A June 2007 VA treatment report noted a two to three year history of back spasms and back pain that occurred at work. The range of motion testing revealed 90 degrees of forward flexion without pain; 25 degrees of extension without pain; 15 degrees of lateral flexion without pain, bilaterally; and 15 degrees of lateral rotation, bilaterally, with no pain. In a November 2007 letter, a private chiropractor indicated that the Veteran had been seen for treatment of lumbar spine and left and right leg pain and that he was awaiting a neurological evaluation and possible surgery. Private treatment reports dated from April 2007 to November 2007 reflect that the Veteran received physical therapy treatments for his lumbar spine disability. A November 2007 magnetic resonance imaging (MRI) of the Veteran's lumbar spine revealed mild degenerative disc disease at L4-L5 and L5-S1; large extruded disc paracentral towards the left at L4-L5, which caused severe effacement of the thecal sac and was felt to compress the left L4 and L5 nerve root sleeves; and at L5-S1, a small disc protrusion and annular tear which abutted the right S1 nerve root sleeve. December 2007 VA treatment reports noted the Veteran's longstanding history of back pain, which worsened approximately two years previously when the Veteran was standing on his feet for long periods of time for work. It was noted that in the previous month, he suddenly had shooting pain down the back of both legs, with numbness in the foot and a private MRI showed L4-L5 protrusion compressing nerve on the left. It was noted that the Veteran's history and MRI were suggestive of radiculopathy at L4-L5 on the left and right. On physical examination, there was tenderness to palpation over the lower lumbar spine and limited lumbar flexion. In a December 2007 physical therapy report, the Veteran located his pain over the left posterior superior iliac spine and into the left upper buttock. Active trunk range of motion in flexion was to 60 degrees with full range of motion in all other planes. A February 2008 VA neurosurgery report noted the Veteran's low back pain and left radicular complaints and that the Veteran had more recently suffered from left lower extremity radiculopathy. He denied bowel or bladder problems other than constipation related to his pain medication. The assessment was left L4-5 herniated nucleus pulposis status post left L4-5 lumbar microdiscectomy in February 2008. The Veteran was afforded a VA spine examination in March 2008. The VA examiner indicated that the claims file was reviewed. The Veteran reported stiffness, and spasms, but denied fatigue, decreased motion, weakness, pain or incapacitating episodes of spine disease. He stated that he was unable to walk more than few yards. On physical examination, the Veteran's gain was stiff post surgery. The examiner indicated that there was no scoliosis, reversed lordosis, or kyphosis. The range of motion testing revealed 70 degrees of flexion, 20 degrees of extension, 20 degrees of lateral flexion, bilaterally, and 40 degrees of lateral rotation, bilaterally. The examiner noted that although there was objective evidence of pain following repetitive motion, no additional limitations in the range of motion were shown after three repetitions. The diagnosis was degenerative disc disease status post discectomy, with short right leg segment and apparent scoliosis. As regards the effects on usual daily activities, the examiner found that there were no effects on feeding, toileting, grooming; mild effects on chores, shopping, recreation, traveling, bathing, and dressing; moderate effects on exercise; and severe effects on sports. The Veteran added that when taking a shower, he could not reach his lower body. An April 2008 VA neurosurgery clinic physician note stated that the Veteran experienced exacerbation of the low back pain and right buttock pain. He denied weakness or bowel or bladder complaints. The physician noted that the Veteran might return to regular duty with the exception of no heavy lifting. In May 2008, the Veteran stated that sciatica pain had improved significantly following the surgery in February 2008; however, he still had low back pain and his mobility was poor due to the back pain. In June 2008, the Veteran reported that he had low back pain with bending or lifting. VA treatment reports dated from July to November 2008 show that the Veteran continued to complain of sharp back pain or right-sided low back pain radiating to both hips. An August 2008 pain clinic report indicated that on examination of the back, the range of motion included 40 degrees of flexion; 10 degrees of extension; 5 degrees of lateral flexion, bilaterally; and 5 degrees of lateral rotation, bilaterally, with pain. In September 2008, the Veteran reported his back popping while bending to pick something up and that he experienced sudden pain in the same place where he had his discectomy. A September 2008 MRI report revealed an impression of (1) degenerative disc disease of L4-L5, L5-SI; (2) central to left paracentral disc protrusion at L4-L5 producing mass effect on the thecal sac and the left traversing nerve root; and (3) central to right paracentral disc protrusion at L5-S1 with abutment or slight displacement or compression of the right traversing nerve root. An October 2008 VA treatment report indicated that the Veteran received some relief after the February 2008 surgery but had persistent nonmechanical back pain before and after the operation. After the September 2008 episode of feeling "popping" in the back, he had worse back pain that was diffuse in the lumbosacral region, iliac and posterior thigh to ankle, involving the left or right side randomly. The report noted that MRI indicated recurrent disc herniation at the left L4-5 abutting the nerve root, with mild to moderate canal stenosis; broad-based L5-S1 disc bulge with moderate lateral recess stenosis, bilaterally. VA treatment reports dated from October 2008 to November 2009 show that the Veteran was treated with bilateral lumbar facet block injection and lumbar radiofrequency ablation for management of low back pain. A March 2009 pain clinic report indicated that on examination of the back, the range of motion included 100 degrees of flexion and 30 degrees of extension. The Veteran was afforded another VA spine examination in June 2009. The VA examiner indicated that the claims file was not provided by the RO but the Veteran's medical records were reviewed. The Veteran reported low back pain radiating to both posterior thighs. He also reported paresthesias, numbness, decreased motion, stiffness, spasms and pain, but denied fatigue, weakness, or incapacitating episodes of spine disease. He stated that he was unable to walk more than few dozen yards. The range of motion testing revealed 25 degrees of flexion, 10 degrees of extension, 10 degrees of left lateral flexion, 5 degrees of right lateral flexion and 10 degrees of lateral rotation, bilaterally. The examiner noted that although there was objective evidence of pain following active range of motion and repetitive motion, no additional limitations in the range of motion were shown after three repetitions. The diagnoses were degenerative disc disease of the lower lumbar spine, degenerative facet disease of the lower lumbar spine and bilateral lower lumbar radiculopathy, status post microdiskectomy of the lumbar spine at the left L4-L5, status post bilateral facet blocks of the lumbar spine at the L4 and L5 facet joints, and status post radiofrequency thermocoagulation of the lumbar spine at the L4 and L5 facet joints. The report noted that the Veteran's lumbar spine disability had significant effects on usual occupation due to decreased mobility, problems with lifting and carrying, and pain. As regards the effects on usual daily activities, the examiner found that there were no effects on feeding, toileting, and grooming; moderate effects on chores, recreation, traveling, bathing, and dressing; and severe effects on shopping, exercise, and sports. In January 2010, the Veteran underwent a VA general medical examination. The VA examiner indicated that the claims file was not provided by the RO but the Veteran's medical records were reviewed. The Veteran reported stiffness, limited motion, back pain, radiation of pain, leg pain, and paresthesias and numbness in the posterior thighs. On physical examination, there was lumbar paraspinal tenderness but no evidence of spinal ankylosis. Range of motion of the thoracolumbar spine included 25 degrees of flexion, 10 degrees of extension, 10 degrees of left lateral flexion, 5 degrees of right lateral flexion and 10 degrees of lateral rotation, bilaterally. The examiner noted that although there was objective evidence of pain on motion, the range of motion measurements were essentially the same and reproducible on three repeat tests without functional loss. The diagnoses were degenerative disc disease of the lower lumbar spine, degenerative facet disease of the lower lumbar spine and bilateral lower lumbar radiculopathy, status post microdiskectomy of the lumbar spine at the left L4-L5, status post bilateral facet blocks of the lumbar spine at the L4 and L5 facet joints, and status post radiofrequency thermocoagulation of the lumbar spine at the L4 and L5 facet joints. The examiner noted that the Veteran's lumbar spine condition would have a moderate negative effect on employment of a physical nature due to limited mobility, inability to lift or carry heavy items, and pain; and would have a mild negative effect on sedentary employment due to pain. As regards the effects on usual daily activities, the examiner found that it caused mild difficulty with recreation, traveling, bathing, dressing and moderate difficulty with chores, shopping, exercise, and driving, and prevent the Veteran from playing sports. After consideration of the pertinent evidence of record, the Board concludes that an initial rating of 20 percent is warranted for the Veteran's lumbar spine disability, prior to June 17, 2009. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5239 (2012). The Veteran's lumbar spine disability was manifested by subjective complaints of pain, stiffness, fatigue, spasms and limitation of motion, at most, to 40 degrees of forward flexion, 10 degrees of extension, 5 degrees of bilateral lateral flexion, and 5 degrees of bilateral lateral rotation; the combined range of motion of the thoracolumbar spine, at the least, was 70 degrees. However, a rating greater than 20 percent is not warranted during this time period as there is no evidence of 30 degrees or less of forward flexion or ankylosis of the thoracolumbar spine. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citations omitted) (defining ankylosis as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). Rather, the evidence clearly demonstrates that the Veteran continued to retain motion in his back with at least 40 degrees of forward flexion. As there was clearly motion, the medical evidence of record simply does not show ankylosis of the entire thoracolumbar spine, required for the assignment of the next higher evaluation. See 38 C.F.R. § 4.71a, General Rating Formula. Additionally, the medical evidence of record does not show that the Veteran's lumbar spine disability increased in severity in terms of limitation of motion due to pain. See 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202, 206 (1995). On the July 2006 VA fee-based examination, the examiner noted that pain did not cause any significant decreased range of motion and that there was no further decreased range of motion after repetitive use testing. Further, the March 2008 VA examiner also stated that although there was objective evidence of pain following repetitive motion, no additional limitation in the range of motion was shown after three repetitions. Accordingly, the Board finds that additional limitation of motion due to pain, fatigue, weakness, or lack of endurance beyond that contemplated by the assigned rating for the Veteran's lumbar spine disability has not been shown. Accordingly, an initial rating greater than 20 percent is not warranted on this basis. Beginning June 17, 2009, the Board concludes that a rating in excess of 40 percent is not warranted as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. Rather, the evidence clearly demonstrates that the Veteran has continued to retain motion in his lower back, albeit severely limited. Findings obtained through the recent VA examinations included, at least, forward flexion of the thoracolumbar spine to 25 degrees, extension to 10 degrees, and lateral flexion and rotation in each direction to 5 and 10 degrees, respectively. The January 2010 VA examiner specifically stated that there was no ankylosis. As there was clearly motion, the medical evidence of record simply does not show unfavorable ankylosis of the entire thoracolumbar spine, required for the assignment of the next higher evaluation. See 38 C.F.R. § 4.71a, General Rating Formula. Additionally, the Board has considered whether there is any additional functional loss not contemplated in the current 40 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see also DeLuca, 8 Vet. App. at 206. The Veteran has reported inability to lift or carry heavy items, and there was objective evidence of painful motion. On the June 2009 and January 2010 VA examinations, pain on movement was shown; however, the repetitive range of motion testing did not reveal any additional limitation of motion. The level of limitation of motion shown on repetitive motion is already contemplated in the current 40 percent evaluation. In other words, any additional functional loss due to pain does not more nearly approximately a finding of unfavorable ankylosis of the entire thoracolumbar spine. Accordingly, a rating greater than 40 percent on this basis is not warranted. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. Consideration has been given to an increased rating for the Veteran's service-connected lumbar spine disability under other potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1995). However, the record does not reflect that the Veteran's service-connected low back disability is manifested by intervertebral disc syndrome that resulted in incapacitating episodes requiring bed rest prescribed by a physician and treatment prescribed by a physician during the period on appeal. See 38 C.F.R. § 4.71a, General Rating Formula, Diagnostic Code 5247. Radiculopathy of the Lower Extremities As noted above, separate ratings of 10 percent for radiculopathy of the right and left lower extremities, associated with the lumbar spine disability, were granted under 38 C.F.R. § 4.124a, Diagnostic Code 8520, effective June 17, 2009. In a subsequent April 2010 rating decision, the evaluations for radiculopathy of the right and left lower extremities were increased to 20 percent, effective December 8, 2009. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Under Diagnostic Code 8520, a 10 percent rating requires mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis, whereby the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2012). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. C.F.R. § 4.124a. During the time period of appeal, the Veteran's bilateral lower extremity radiculopathy was no more than moderate. On the June 2009 VA spine examination, the Veteran reported low back pain radiating to both posterior thighs, paresthesias, and numbness. On motor examination, the muscle strength was 5 out 5 for all muscles; muscle tone was normal; and there was no muscle atrophy. Sensory examination revealed normal vibration, pain (pinprick), and position sensation of 2/2 on the right and left lower extremities; however, light touch sensation was 1/2, in the bilateral posterior thigh in an S1 nerve distribution. Reflex examination showed 2+ for knee jerk and 1+ ankle jerk, and normal plantar flexion. In the January 2010 VA examination, the Veteran report radiating pain and leg pain, paresthesias and numbness in the posterior thighs. On motor, sensory and reflex examinations, no abnormalities on motor function, decreased sensation to light touch over the bilateral posteriolateral thighs, and 1+ Achilles tendon reflexes were shown, bilaterally. The Veteran's radiculopathy of the right and left lower extremities do not more nearly approximate the criteria for moderately severe disability. Although, decreased sensation to light touch and ankle reflex have been consistently shown, there is no indication of organic changes to the lower extremities. Sensation to light touch was noted to be impaired but not absent, and ankle jerk reflex was hypoactive but not absent. Therefore, giving the benefit of the doubt, a 20 percent rating, but no greater, is warranted effective June 17, 2009. Other Considerations These issues have been reviewed with consideration of whether additional staged ratings would be warranted. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected lumbar spine and lower extremity disabilities, there is no evidence of record that would warrant a rating in excess of those assigned for the Veteran's service-connected disabilities during any of the periods on appeal. See Fenderson, 12 Vet. App. at 126. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1) (2012). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular ratings in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disabilities, but the medical evidence reflects that those symptoms are not present. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's lumbar spine disability and related radiculopathy because they contemplate the Veteran's decreased mobility and any additional limitation of motion due to pain, as well as the neurologic symptoms associated with the lumbar spine disability. Furthermore, he has not required hospitalization during the appeal period. Indeed, the record reflects that the Veteran was working from December 2006 to June 2009 excluding the 7 months from November 2007 to May 2008 during which he underwent a lumbar spine surgery; a temporary total rating from February 25, 2008 to March 31, 2008 based on a lumbar spine surgery. The record reflects that the Veteran also has other service-connected low extremity disabilities that are orthopedic in nature, specifically his bilateral hip and bilateral knee disabilities. The record includes a medical opinion from the January 2010 VA examiner that the Veteran's lumbar spine condition would have a moderate negative effect on employment of a physical nature due to limited mobility, inability to lift or carry heavy items, and pain; and would have mild negative effect on sedentary employment due to pain. The January 2010 VA examiner further opined that the Veteran's bilateral hip and knee disabilities also had mild negative effect on physical and sedentary employment due to pain. Therefore, marked interference of employment solely due to the lumbar spine disability has not been shown. Therefore, the Veteran's disability picture is contemplated by the Schedule; no extraschedular referral is required. Earlier Effective Date The Veteran is seeking an effective date prior to June 17, 2009 for the grant of separate disability ratings for bilateral lower extremity radiculopathy, secondary to his service-connected lumbar spine degenerative disc disease. Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1) (2012). A claim is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2012). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2012). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 C.F.R. § 3.400(o)(2). Under those circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400 (0)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). In a November 2009 rating decision, the RO granted separate disability ratings for right and left lower extremity radiculopathy, secondary to service-connected lumbar spine degenerative disc disease, effective the date of the June 17, 2009, on the basis that the findings contained in the report of a June 17, 2009 VA examination supported the assignment of separate 10 percent ratings for radiculopathy of each lower extremity. In this case, the Veteran submitted a claim, received by VA on January 12, 2006, in which he requested an increase in compensation for his service-connected hip and knee disabilities. He also submitted a written statement about back problems, as well as a December 2005 private treatment report reflecting worsening of back pain. The RO construed the statement as a claim for entitlement to service connection for his lumbar spine degenerative disc disease associated with service-connected bilateral hip disabilities. In a December 2006 rating decision, the RO granted service connection for degenerative disc disease, status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, effective January 12, 2006. The Veteran filed a notice of disagreement as to the initial rating assigned for his service-connected lumbar spine disability on December 5, 2007; the Veteran's December 2007 notice of disagreement constitutes a claim for an increased evaluation. While this claim was in appellate status, the Veteran submitted evidence warranting separate ratings for radiculopathy of the bilateral lower extremities as neurological manifestations of his degenerative disc disease of the lumbar spine. Therefore, a claim for separate disability ratings for radiculopathy of the bilateral lower extremities was part and parcel of the claim for a higher initial rating of degenerative disc disease of the lumbar spine, received on December 5, 2007. The medical evidence of record reflects that in a November 2007 VA treatment report, the Veteran reported acute exacerbation of chronic back pain and unusual right-sided pain that radiated into the lateral aspect of the thigh to the calf with foot numbness. A November 15, 2007 private MRI of the Veteran's lumbar spine revealed mild degenerative disc disease at L4-L5 and L5-S1; large extruded disc paracentral towards the left at L4-L5, which caused severe effacement of the thecal sac and was felt to compress the left L4 and L5 nerve root sleeves; and at L5-S1, a small disc protrusion and annular tear which abutted the right S1 nerve root sleeve. The resulting consultation report noted that the Veteran complained of severe mechanical low back pain with occasional sharp stabbing pain radiating down the posterior aspect of his lower extremities into his feet. There were sensations of numbness and tingling affecting his feet and toes. The report indicated that the Veteran had severe mechanical low back pain and lumbar radiculopathy. Based on the foregoing evidence, the Board finds that the entitlement to separate disability ratings for radiculopathy of the bilateral lower extremities arose on November 15, 2007, when the evidence showed that the Veteran had lumbar radiculopathy associated with degenerative disc disease of the lumbar spine. As it is factually ascertainable that the Veteran had radiculopathy of the bilateral lower extremities associated with his service-connected degenerative disc disease of the lumbar spine within the one-year period preceding the Veteran's December 5, 2007 claim, the exception provided for in the 38 C.F.R. § 3.400(o)(2) applies in this case. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(2). As such, the proper effective date for the grant of separate ratings for radiculopathy of the right and left lower extremities is the date entitlement arose, and, thus, November 15, 2007 is the appropriate effective date for the grant of separate ratings for radiculopathy of the right and left lower extremities. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1),(2). The Board has carefully considered the applicability of the benefit-of-the-double doctrine. However, the preponderance of the evidence is against the claims. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Entitlement to an initial rating of 20 percent, but no greater, for the Veteran's degenerative disc disease, status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, prior to June 17, 2009, is warranted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating greater than 40 percent for the Veteran's degenerative disc disease, status post discectomy, with shortened right leg segment and dextroscoliosis of the lumbar spine, associated with degenerative arthritis of the right and left hips, beginning June 17, 2009, is denied. Entitlement to a rating of 20 percent, but no greater, for radiculopathy of the right lower extremity, prior to December 8, 2009, is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to a rating of 20 percent, but no greater, for radiculopathy of the left lower extremity, prior to December 8, 2009, is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to a rating greater than 20 percent for radiculopathy of the right lower extremity, beginning December 8, 2009, is denied. Entitlement to a rating greater than 20 percent for radiculopathy of the left lower extremity, beginning December 8, 2009, is denied. Entitlement to an effective date of November 15, 2007, for the grant of separate disability ratings for radiculopathy of the right and left lower extremities is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Veteran is seeking entitlement to a TDIU for the time periods of December 2005 to May 2006 and November 2007 to May 2008 when he could not work or progress with his vocational study because of his service-connected disabilities, including back pain. As noted above, a TDIU has been in effect since June 17, 2009. However, the record reflects that the Veteran was employed from May 2008 to June 2009 and he does not claim entitlement to a TDIU for this time period. Therefore, the Board's review of the Veteran's TDIU claim will be limited to the time periods of December 2005 to May 2006 and November 2007 to May 2008. The record includes evidence suggesting that, his service-connected disabilities may have caused his unemployment for the time periods at issue. In this regard, a January 2006 VA treatment report recommended that the Veteran limit his bending, leaning and walking. A February 2006 lay statement from B.B.H. from A-B Technical Community College indicated that the Veteran had complaints of back pain that interfered with his clinical rotational experience and that he could not continue the program. The July 2006 VA fee-based examination report noted that the Veteran dropped out of school temporarily because of his back problems. He went back to school hoping to complete the last semester of school to be a laboratory technician; however, he was experiencing his back symptoms again. In the March 2008 VA examination report, the Veteran reported that his usual occupation was a lab technician but he had been unemployed since October 31, 2007. He stated that he left a job at one hospital to take a better job; however, in the interval, had significant flare-ups of back pain and had not been able to start work. The report noted that the Veteran's lumbar spine disability had significant effects on usual occupation due to decreased mobility, problems with lifting and carrying, and pain. A March 2008 VA mental health report indicated that after graduating from college, the Veteran received an associate degree at a tech college as a lab technician with a certificate of phlebotomist. He was upset that he was not able to get a job because of his chronic back and knee problems. He last worked 12 hour shifts for a hospital a few weeks ago. The Veteran's physician wrote a note releasing the Veteran to be able to work 8 hours a day instead of 12 hours and the Veteran lost his job. In a June 2008 letter, the Veteran's VA primary care team indicated that the Veteran developed severe pain in the back which radiated down his legs on November 4, 2007 while working in his yard. He was in the emergency the next day and was given a week of steroids. He obtained a private MRI which showed a L4-L5 protrusion compressing on the left nerve. He reported pain, which was worse with bending forward or sitting for more than 20 minutes. He underwent a left minimally invasive L4-L5 microdiskectomy in February 2008. The letter indicated that it would have been difficult for the Veteran to sit or stand for prolonged periods (less than 20 minutes) because of pain during the time period of November 4, 2007 to the time of his surgery. In light of the foregoing, as well as the increase in the disability ratings granted herein, this issue should be remanded to the RO to consider the claim in the first instance. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a notice letter that explains how to establish entitlement to a TDIU pursuant to 38 C.F.R. § 4.16 (a) and (b). 2. After completing this, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide an additional Supplemental Statement of the Case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs