Citation Nr: 1310070 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-14 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine (back disability), currently rated as 20 percent disabling. 2. Entitlement to a higher initial rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling prior to July 25, 2012 and as 20 percent disabling thereafter. 3. Entitlement to an increased rating for a calcaneal spur of the right heel; currently rated as 20 percent disabling. 4. Entitlement to an increased rating for a calcaneal spur of the left heel, evaluated as 10 percent disabling prior to July 25, 2012 and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from April 1946 to June 1965. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In February 2012 and June 2012, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further development. In a December 2012 rating decision, the AMC awarded 20 percent evaluations for the Veteran's right lower extremity radiculopathy and left plantar calcaneal spur disabilities, effective from July 25, 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Degenerative disc disease of the Veteran's lumbar spine is manifested by forward flexion of the thoracolumbar spine that is limited to less than 30 degrees with consideration of functional factors; but without favorable ankylosis of the entire thoracolumbar spine, incapacitating episodes; or neurologic impairment other than radiculopathy of the right lower extremity. 2. Throughout the appeal period, radiculopathy of the Veteran's right lower extremity has been manifested by moderate incomplete paralysis below the knee. 3. The Veteran's service connected right foot disability is moderately severe 4. The Veteran's service connected left foot disability is moderately severe. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for degenerative disc disease of the lumbar spine are met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5235-5243 (2012). 2. The criteria for a 20 percent initial rating, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.102, 3.159, 4.124a, DC 8520, 8620 (2012). 3. The criteria for a rating in excess of 20 percent for a calcaneal spur of the right heel have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.102, 3.159, 4.20, 4.71a, 4.124a, DC 5299-5284 (2012). 4. The criteria for a 20 percent rating for a calcaneal spur of the left heel have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.102, 3.159, 4.20, 4.71a, 4.124a, DC 5299-5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. Pub.L. 112-154, §§ 504(a)(1)-(2) (to be codified at 38 U.S.C.A. § 5103(a)); C.F.R. § 3.159(b)(1) (20). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court for Veterans Appeals (veteran's court or court) had held that at a minimum, adequate VCAA notice in an increased rating claim required that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Federal Circuit vacated the Court's decision, overturning the requirement that VA provide notice that the claim could be substantiated by evidence of a disability's impact on daily life and that VA provide notice with regard to potential diagnostic code criteria (element 2). Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The generic first, third, and fourth elements (contained in the veteran's court's decision) were not disturbed by the Federal Circuit's decision. In November 2008 and February 2012 letters, the agency of original jurisdiction (AOJ) notified the Veteran of information and evidence necessary to substantiate his claims. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In the November 2008 letter, the Veteran was informed of how VA determines disability ratings and effective dates, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); and was given the notice required by the surviving portions of Vazquez-Flores. The AOJ satisfied its duty to notify the appellant under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(b). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). His service treatment and personnel records and VA and private records have been associated with the claims file, to the extent available. All reasonably identified and available medical records have been secured. A review of the Veteran's Virtual VA electronic file shows VA treatment records, dated to December 2012, also considered by the Board in the claims on appeal. Further, in December 2008 and May 2010, the Veteran was afforded VA examinations, in connection with his claim for a lumbar spine disability on appeal, and in December 2008 as to his foot disabilities on appeal, the reports of which are of record. In February 2012, the Board remanded the Veteran's case to the RO for the purpose of scheduling him for a new VA examination. But, according to a March 2012 record, the Veteran's VA examination at the Togus VA medical center was cancelled because he submitted a certified letter stating that he was unable to travel to Togus due to deterioration of his back, legs, and feet. He reported that he could not handle the trip from his home in Machias, Maine, to Togus, and did not wish to be rescheduled. That trip is approximately 144 miles and would take approximately three and one half hours. The Board's June 2012 remand was to afford the Veteran an opportunity to undergo a VA examination at a facility closer to his home. There has been substantial compliance with this remand, as VA medical records, dated to December 2012, were obtained and he was scheduled for VA examination in July 2012 at the VA medical center (VAMC) in Bangor, Maine. The July 2012 VA examination report is adequate for rating purposes as the claims file was reviewed, the examiner reviewed the pertinent history, examined the Veteran, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination. The records satisfy 38 C.F.R. § 3.326 (2012). The July 2012 VA examination report cures the deficiencies in the December 2008 and May 2010 reports. The Board finds the duties to notify and assist have been met. II. Factual Background and Legal Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the United States Court of Appeals for Veterans Claims (Court) noted that where, as here (as to the right lower extremity radiculopathy), the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. In the case of an increased rating, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 (2012). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). 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. It also includes 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. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran's statements describing the symptoms of his service-connected back, bilateral foot, and right lower extremity, disabilities are deemed competent. However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet App 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). VA's policy is to treat actually painful, unstable, or malaligned joints as warranting at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation applies to any service-connected joint disability, not just arthritis. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1 (2011). The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). A. Rating in Excess of 20 Percent for Degenerative Disc Disease of the Lumbar Spine Under DC 5243, IVDS is to be evaluated either on the total duration of incapacitating episodes over the prior 12 months, or by combining under 38 C.F.R. § 4.25 separate evaluations of any chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. A 20 percent evaluation is warranted for an IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the prior 12 months. A 40 percent evaluation is warranted for an IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the prior 12 months. If there are incapacitating episodes having a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) to Diagnostic Code 5243 provides that, "an incapacitating episode" is a period of acute signs and symptoms due to an intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides: When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using criteria for the most appropriate neurologic diagnostic code or codes. The Board has found no evidence of neurological impairment of the Veteran's left lower extremity or bowel or bladder associated with his lumbar spine disability. The disability evaluation for radiculopathy of the right lower extremity is separately rated and discussed infra. The current regulations under the general rating formula for rating spine disabilities, under 38 C.F.R. § 4.71a, provide the following rating criteria: a 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; and a 40 percent evaluation for favorable ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less. A 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, DCs 5235-5243. These evaluations are for application with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. (This clearly implies that the factors for consideration under the holding in DeLuca v. Brown are now contemplated in the rating assigned under the general rating formula.) Normal range of motion of the thoracolumbar spine includes flexion from zero to 90 degrees; and extension, bilateral lateral flexion, and bilateral rotation, all from zero to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2012). The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The combined range of motion above refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See General Rating Formula, Note (2). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. In a March 2007 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine and assigned a 20 percent disability rating under DC 5243 that evaluates intervertebral disc syndrome (IVDS). In September 2008, the RO received the Veteran's current claim for an increased rating for his back disability. The relevant evidence of record includes an August 2008 letter from Dr. R.A., who reported that he treated the Veteran for severe back pain and radiculopathy of the right leg. It was noted that recent X-rays showed multi-level degenerative changes throughout the Veteran's lumbar spine and that results of a magnetic resonance image (MRI) of the lumbosacral spine showed prominent end plate degenerative changes at L4-5 anteriorly with some very minimal bulging at L2-3, L3-4, and L4-5. A December 2008 VA examination report includes the Veteran's complaint of back pain for many years with current daily back pain, stiffness, and decreased motion. He described his pain as severe, sharp, stabbing, and nagging, with sharp radiating pain into the right leg. The Veteran denied flare-ups, and there were no incapacitating episodes of spine disease. He was able to walk more than one quarter mile but less than one mile. He denied any flare ups or incapacitating episodes of spine disease. Objectively, the Veteran's posture was stooped, he used a cane, and his gait was slow and antalgic. There was a list noted, but no other abnormal spinal curvatures. There was no ankylosis of the thoracolumbar spine. There was tenderness, pain with motion, and muscle spasm of the lumbar spine. Lasegue's sign was positive on the right. Range of motion of the Veteran's lumbar spine was flexion from 0 to 72 degrees (and to 40 degrees after repetitive motion); extension was from 0 to 22 degrees (and to 10 degrees after repetitive motion), left lateral flexion was from 0 to 22 degrees (and to 16 degrees after repetitive motion) and right lateral flexion was from 0 to 16 degrees (and to 10 degrees after repetitive motion); left and right lateral rotation were from 0 to 14 degrees. There was objective evidence of pain on active range of motion and additional limitation following repetitive motion due to pain. It was noted that results of a lumbar MRI performed in July 2008 showed a bulging disc at L2-L5, diffuse disc disease, and degenerative joint disease. The VA examiner opined that the Veteran's lumbar spine disability had a severe effect on the Veteran's ability to do chores, shop, exercise, and participate in sports and recreational activities, and travel. It had a moderate effect on his ability to bathe and dress, and a mild effect on his other activities of daily living. A December 2009 private physical therapy report includes the Veteran's complaint of low back pain for many years. He had pain mostly in the morning, but was also bothered with prolonged sitting and standing. The Veteran had some balance problems but denied any significant falls. Objectively, he demonstrated mildly forward head positioning. A February 2010 private physical therapy record indicates that the Veteran had progressively worsening back pain. He had pain with sit-to-stand transfers and lying on his side. He denied any numbness, tingling, or pain referred anywhere past his upper lumbar region and had no bowel or bladder changes. Straight leg raise was positive for pain on the left. In April 2010, the Veteran was seen in the VA outpatient clinic for an annual primary care evaluation of multiple medical problems including hearing loss, macular degeneration, and lumbago with radiation. According to an April 2010 record from F.J.W., M.D., review of the Veteran's MRI showed no evidence of spinal stenosis or large herniated disc. X-rays of the lumbar resulted in an impression of a compression fracture deformity at L1. A handwritten note on the report, apparently by Dr. F.J.W., indicates that he disagreed with this conclusion. In May 2010, the Veteran was re-examined by the previous VA examiner. The report shows that the Veteran was last seen by VA in April 2010 when lumbago with radiation was reported. Findings of the July 2008 MRI were described. The Veteran complained of progressively worsening back pain that he treated with physical therapy and heat. He walked most days of the week. His symtoms included constant, sharp, dull and throbbing pain with stiffness, spasms, weakness, fatigue, and decreased motion. The Veteran's pain was daily and constant and radiated into his right leg particularly while driving. He had flare-ups but denied incapacitating episodes of spine disease. He used a lift chair to get up because of back pain. The Veteran had balance problems although he indicated that his physician said this was related to his eye and ear problems. The Veteran's posture was stooped, his head position was slightly forward flexed, and he used a cane. It was noted that he bent over slowly to untie his boots, and his back pain caused significant disability straightening up. There were no abnormal spinal curvatures and no evidence of ankylosis of the thoracolumbar spine. There was tenderness and pain with motion of the lumbar spine, but no evidence of muscle spasm, guarding, atrophy or weakness. Range of motion of the Veteran's lumbar spine was forward flexion from 0 to 50 degrees (to 40 degrees after repetitive motion); extension from 0 to 15 degrees, and lateral and right lateral flexion to 15 degrees (to 10 degrees after repetitive motion). There were additional limitations after three repetitions of range of motion with the most important factor being pain. The Veteran walked with an abnormal gait and used a cane to ambulate. All sensory testing was normal aside from a decreased in sensation to vibration at the lateral ankles, despite preservation of vibratory sensation in the great toes and feet. The VA examiner was unable to explain that and found it would not be considered due to radiculopathy. The diagnosis was degenerative joint and disc disease of the lumbar spine and the Veteran had symtoms of right leg radiculopathy. The VA examiner commented that the Veteran was retired as he was eligible by age or duration of work and last worked in 1986. The examiner opined that the Veteran's back disability prevented him from participating in sports, had a severe effect on his ability to do chores, exercise, travel and participate in recreation; and had a mild effect on his ability to shop and dress. During the July 2012 VA examination, performed by the previous VA examiner, the Veteran complained of chronic, daily low back pain that radiated into his right leg. He rated his pain as 10 out of 10 on a pain scale of 1 to 10. Any increased activity caused increased low back pain. The Veteran walked with a stoop due to back pain and needed and used a special chair that helped him get up from a seated position. He lost his balance due to pain. The Veteran stumbled very often, nearly falling due low back pain and right leg symtoms. The Veteran denied having flare ups that impacted his back function. Range of motion of the Veteran's lumbar spine was forward flexion to 50 degrees (with objective evidence of painful motion at 20 degrees); extension was to 10 degrees (with objective evidence of painful motion at 5 degrees); right and left flexion were to 15 degrees (with painful motion at 5 degrees); and right and left lateral rotation were to 10 degrees (with painful motion at 5 degrees). The VA examiner reported that the Veteran was unable to perform repetitive-use testing with three repetitions because he was in too much pain. As to functional loss, the VA examiner again noted that the Veteran was unable to do repetitive movements and cited to DeLuca. Further, there was tenderness or pain to palpation of the Veteran's spine with muscle spasms. The Veteran had guarding that caused an abnormal gait and abnormal spinal contour. There was no muscle atrophy. Straight leg raise was negative on the left and there were no signs or symtoms of radiculopathy in the left lower extremity. In fact, the VA examiner indicated that the Veteran's lower left extremity was not affected by radiculopathy and there were no other neurologic abnormalities or findings related to his lumbar spine disorder (such as bowel or bladder problems/pathologic reflexes). The VA examiner reported that the Veteran did not have IVDS of the thoracolumbar spine. It was noted that the Veteran did not use any assistive device to aide locomotion. X-rays of the lumbar spine taken at the time resulted in an impression of generalized demineralization and degenerative changes. The VA examiner opined that the Veteran's back disability did not impact on his ability to work. Analysis The Veteran has never expressly been found to have limitation of forward flexion to 30 degrees or less. On the most recent examination; in July 2012, the VA examiner reported forward flexion of the Veteran's lumbar spine to 50 degrees. However, the Veteran has also been shown to have significant functional limitation. Notably, the recent VA examiner reported objective evidence of pain with forward flexion at 20 degrees, and an inability to perform repetitive motion, evidencing reduced functional capacity due to pain. The examiner also noted that the Veteran walked with a stoop due to back pain, used a special chair to arise from a seated position, and lost his balance due to back pain. Although the examiner did not quantify the additional limitation of motion due to functional factors, the findings are commensurate with limitation of forward flexion to 30 degrees or less, hence a 40 percent disability rating is warranted. Earlier examinations during the appeal period show a greater range of forward flexion, but they do not include all the findings needed to ascertain the extent of additional limitation due to functional factors. Hence, the 40 percent rating is warranted during the entire appeal period. There is no evidence that the Veteran's service-connected lumbar spine disorder has been manifested by ankylosis. Ankylosis, whether favorable or unfavorable, involves fixation of the spine. General Rating Formula for Diseases and Injuries of the Spine, Note (5). The December 2008 and May 2010 VA examination reports reflect that the Veteran did not have ankylosis of his lumbar spine and the 2012 examination shows that he retains significant thoracolumbar spine motion. There are also no neurologic abnormalities, other than the already service connected right lower extremity disability, warranting a separate compensable evaluation. Although the February 2010 private record reflects that a straight leg raise test was positive for pain on the left, no associated neurological abnormality was identified and there were no complaints or other abnormal findings in the left lower extremity; nor has any bowel or bladder impairment been identified, as noted by the July 2012 VA examiner. Nor were there reports of incapacitating episodes such as to warrant a higher rating. While the December 2008 and May 2010 VA examination reports describe an additional 10 degree loss of forward flexion due to the Veteran's back pain, in July 2012, pain reduced his forward flexion to 20 degrees, a loss of nearly 30 degrees in forward movement. Further, in May 2010 and July 2012, the VA examiner reported that the Veteran needed and used a special chair to help him arise from a seated position and lost his balance due to back pain, stumbling frequently and nearly falling due to low back pain (and right leg symtoms). The provisions of 38 C.F.R. §§ 4.40 and 4.45 and the Deluca case have been considered, as well as Burton, supra, providing a basis for assigning a 40 percent rating under Diagnostic Code 5243. See also Mitchell, supra. Accordingly, giving the Veteran all benefit of the doubt, a 40 percent rating, but no higher, is warranted for his service-connected lumbar spine disability. The benefit of the doubt has been resolved in his favor to this limited extent. 38 U.S.C.A. § 5107(b). B. Higher Initial Rating for Radiculopathy of the Right Lower Extremity The February 2009 rating decision granted service connection for radiculopathy of the right lower extremity and assigned an initial 10 percent rating under DC 8620 that evaluates neuritis of the sciatic nerve, effective September 29, 2008. In the December 2012 decision, the AMC granted a 20 percent rating, effective from July 25, 2012. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a (2012). Diagnostic Code 8520 pertaining to the sciatic nerve provides for a maximum 80 percent rating for complete paralysis when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A 60 percent rating is warranted for incomplete paralysis that is severe with marked muscular atrophy. Id. A 40 percent rating is warranted with incomplete paralysis that is moderately severe, and a 20 percent rating is warranted for incomplete paralysis that is moderate. Id. Mild incomplete paralysis warrants a 10 percent evaluation. Id. The August 2008 report from Dr. R.A. shows that the Veteran had severe back pain with radiation down his right leg. The December 2008 VA examination report includes the Veteran's complaint of sharp pain that radiated into his right leg with paresthesias and numbness. He denied leg or foot weakness, unsteadiness, and falls. The Veteran was able to walk more than one quarter mile but less than one mile. He used a cane and his gait was slow and antalgic. Motor strength in the right lower extremity was normal (5/5) with normal muscle tone and no evidence of muscle atrophy. Sensation in the right lower extremity was decreased to light touch, pinprick, and vibration. Position sense was normal. Reflexes were 2+ at the right knee and 1+ at the ankle, and plantar flexion was normal. Lasegue's sign was positive on the right. Radiculopathy of the right lower extremity associated with degenerative joint disease of the lumbar spine was diagnosed. In April 2010, Dr. F.J.W. indicated that the Veteran's principal problem was right sciatica. The May 2010 VA examination report includes the Veteran's complaint of right lower extremity numbness and weakness. He had radiating pain into his right leg, particularly with driving. He used a cane to ambulate. Objectively, motor examination revealed that right lower extremity strength was again normal (5/5) and full throughout, as was muscle tone, and there was no evidence of muscle atrophy. Sensation to vibration at the right ankle was decreased. Sensation to pinprick, light touch, and position sense was normal. Right knee jerk was 1+ and right ankle jerk was absent. During the July 2012 VA examination, the Veteran complained of low back pain that radiated into his right leg. He lost his balance due to back pain and stumbled very often, nearly falling due to low back pain and right leg symtoms. He had radiating pain into his right leg that became very numb with a "dead feeling" in the leg. Reflexes of both knees were 2+; ankles were 1+; upper anterior thighs, thigh/knee, and lower leg/ankle were all normal. Reflexes of the left foot were normal but the right foot/toes were decreased. Straight leg raise was positive on the right. The Veteran had moderate intermittent right lower extremity pain, numbness, and paresthesias and/or dysesthesias. This involved his right sciatic nerve. The VA examiner opined that the Veteran had moderate right lower extremity radiculopathy. Since he filed his current claim on September 29, 2008, the Veteran has manifested findings commensurate with moderate neurological impairment of the right lower extremity. While, in December 2008 and May 2010, the VA examiner found that the Veteran's right lower extremity reflected normal motor strength and muscle tone, with no atrophy, in December 2008, sensation was decreased to light touch and vibration, and ankle reflexes were diminished, although position sense was normal, as were reflexes of the knee. But May 2010, the Veteran had no right ankle jerk, although sensation was normal to pinprick, light touch, and position sense. The July 25, 2012 VA examiner found that the Veteran manifested moderate intermittent lower extremity pain, numbness, and paresthesias/dysesthesias with decreased reflexes in the right foot and toes. Such findings are essentially commensurate with moderate neurological impairment throughout the appeal period. However, there is no evidence of muscle atrophy or weakened strength commensurate with moderately severe incomplete paralysis such as to warrant a 40 percent rating Diagnostic Code 8520 at any time since the Veteran filed his current claim. As such, resolving all benefit of the doubt in the Veteran's favor, the Board finds that an initial 20 percent rating, but no higher, is warranted for his right lower extremity radiculopathy since September 29, 2008. The benefit of the doubt has been resolved in the Veteran's favor to this limited extent. 38 U.S.C.A. § 5107(b). See generally Gilbert v. Derwinski, supra. C. Foot Disabilities The record reflects that, in a May 2001 rating decision, the RO granted service connection for right and left plantar calcaneal spurs, and assigned a 10 percent rating for the right heel and a noncompensable rating for the left heel, under DC 5299-5284. In a September 2002 rating decision, the RO granted a 10 percent rating for the Veteran's left foot disability and, in a January 2004 rating decision, a 20 percent rating was granted for his right foot disability. In September 2008, the RO received a current claim for an increased rating. The Veteran's service-connected right and left plantar calcaneal spur disabilities are rated under Diagnostic Code 5299-5284, other foot injuries. 38 C.F.R. § 4.71a. The rating criteria do not have a specific diagnostic code for calcaneal spurs. The disorder is, therefore, rated as analogous to "other foot injuries" because the functions affected, the anatomical localization, and the symptomatology are most closely analogous to this disorder. See 38 C.F.R. § 4.20. Under Diagnostic Code 5284, a 10 percent evaluation is provided for a "moderate" foot injury. A 20 percent evaluation is provided for a "moderately severe" foot injury. A 30 percent evaluation is provided for a "severe" foot injury. The Note to Diagnostic Code 5284 indicates that a maximum 40 percent rating will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a. The words "moderate," "moderately severe," and "severe" are not defined in Diagnostic Code 5284. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. "Loss of use of a foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (2012). Under 38 C.F.R. 4.63 that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent footdrop, equally well served by amputation. VA's General Counsel stated that Diagnostic Code 5284 is a more general diagnostic code under which a variety of foot injuries may be rated; that some injuries to the foot, such as fractures and dislocations for example, may limit motion in the subtalar, midtarsal, and metatarsophalangeal joints; and that other injuries may not affect range of motion. Thus, the VA General Counsel concluded that, depending on the nature of the foot injury, Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40, 4.45, and the DeLuca case. See VAOPGCPREC 9-98. In the present case, consideration of functional loss and DeLuca is warranted since the Veteran's right and left foot disabilities involves his complaints of painful motion. See e.g., July 2012 VA examination report (noting Veteran's complaints of difficulty walking). The current record includes private prosthetic and orthotic records, dated from May 2005 to July 2008, indicating that the Veteran was seen for adjustment of his orthotics in June 2008. He felt that his sock was being wrinkled under his heel on the right foot. The Veteran also complained of right lateral calf pain. A new orthotic was recommended. X-rays taken in July 2008 showed plantar and posterior calcaneal bony spurs. In August 2008, Dr. R.A. noted that recent X-rays of the bilateral calcaneus showed plantar and posterior calcaneal spurs. The December 2008 VA examination report includes the Veteran's report of daily bilateral foot (heel) pain when he walked. He rated his pain as 10+/10 on a scale of 1 to 10. He had poor response to treatments, although shoe inserts helped. His symptoms included pain in his heels while walking or standing. He denied any swelling, heat, redness, stiffness, fatigability, weakness, or lack of endurance. There were no flare-ups noted. He was able to walk more than one quarter mile but less than one mile. The Veteran used a cane and his gait was slow and antalgic. Motor strength in the right and left lower extremities was essentially normal with normal muscle tone and no evidence of muscle atrophy. The right and left foot revealed evidence of tenderness at the heel. There was no evidence of painful motion, swelling, instability, weakness, muscle atrophy, or abnormal weight-bearing in either foot. The examiner reviewed results of October 2006 X-rays that showed moderate posterior and more prominent plantar calcaneal spurring on both feet. The diagnosis was plantar calcaneal spur of the right and left foot. The VA examiner commented that the Veteran's bilateral calcaneal spurs had a mild effect on his ability to travel and a moderate effect on his ability to do chores, shop, exercise, and participate in sports and recreational activities and no effect on the Veteran's other daily activities. It was noted that the Veteran was retired due to age or duration of work. The April 2010 VA outpatient record indicates that the Veteran had degenerative joint disease and bilateral plantar calcaneal spurs and reported that he had right hammer toe surgery in February 2009. The July 2012 VA examination report reveals that the Veteran had bilateral calcaneal spurs with degenerative joint disease. He used special orthotics daily to help control the chronic pain in his heels. The Veteran described his pain as aching and stated that wearing boots with orthotics helped. Results of X-rays of his calcaneal spurs in the feet were reported as "unchanged". As to his toes, the Veteran reported that his big toenails were removed in service, but grew back and needed to be sanded off due to an overgrowth of fungus. Objectively, there was no evidence of Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, malunion or nonunion of the tarsal or metatarsal bones or other foot injuries. There was no evidence of bilateral weak foot. There was evidence of surgical scars but they were not painful and/or unstable or more than six square inches. As to assistive devices, the Veteran used bilateral orthotics that had to be replaced when worn out. Right foot X-rays showed a large right calcaneal plantar bone spur and mild degenerative post surgical findings. Left foot X-rays showed a large spur on the plantar aspect of the left calcaneus with no acute findings otherwise. The VA examiner reported that the Veteran's foot condition did not impact his ability to work. In the VA examiner's opinion, the Veteran had a moderately severe bilateral foot disability. The VA examiner explained that the Veteran had difficulty walking without developing pain in both feet and also had pain in his feet while at rest. Calcaneal Spur of the Right Heel Upon review of the probative and credible evidence of record, the Board concludes that a rating in excess of the currently assigned 20 percent rating is not warranted for the Veteran's service-connected calcaneal spur of the right heel. In December 2008, the VA examiner's findings of tenderness on palpation of the heel and a slow and antalgic gait were consistent with the Veteran's account of increased right foot pain and that pain in his foot made it difficult for him to walk more than one quarter of a mile. The July 2012 VA examiner also reported the Veteran's difficulty walking and that X-ray findings of the feet were "unchanged" with a large spur noted on the right foot. Such limitation of endurance reasonably constitutes moderately severe disability of the right foot commensurate with the currently assigned 20 percent rating. However, there is no evidence of severe disability in the Veteran's right foot. Notably, the evidence indicates that he is still able to stand and walk for fairly prolonged distances, there is no atrophy of the right foot, and the medical opinion is to the effect that the disability is no more than moderately severe. Calcaneal Spur of the Left Heel The December 2008 VA examiner's findings of tenderness on palpation of the left foot and an antalgic gait were consistent with the Veteran's account of increased left foot pain and that pain in the left foot made him unable to walk more than a short distance. Such limitation of endurance reasonably constitutes moderately severe disability of the left foot. The Board, therefore, grants a 20 percent rating for the disability in the left foot, effective from September 29, 2008, the date the RO received the Veteran's current increased rating claim. However, the disability shown from that point does not rise to the level of severe disability in the left foot. The evidence indicates that the Veteran is still able to stand and walk for limited durations and distances and there is no atrophy of the left foot. Both Feet A rating in excess of 20 percent for either foot is not warranted at any time since the Veteran filed his current claim for an increased rating. In fact, while the December 2008 VA examiner reported tenderness in the left and right heel, in July 2012, the examiner reported X-ray findings of large calcaneal plantar bone spurs in both feet that were "unchanged". There were mild degenerative changes in the left foot and mild to moderate midfoot and interphalangeal osteoarthritic changes in the right foot with mild subtalar degenerative changes. Overall, the VA examinations and VA and non-VA treatment records, and the Veteran's own assertions, do not support a rating greater than 20 percent in either foot. Severe disability is not shown such as to warrant a 30 percent disability rating under Diagnostic Code 5284. Moreover, with respect to an even higher 40 percent rating for loss of use of the foot under Diagnostic Code 5284, while the Veteran's right and left calcaneal heel spurs cause pain, the evidence does not show that he has actually lost the use of either foot. He is able to walk and stand, albeit with reported limitations, and clearly does not suffer from loss of use of the right or left foot. The evidence demonstrates he has more function in the feet than would be served with an amputation stump. See 38 C.F.R. § 4.63. There is no evidence of ankylosis from this disability, shortening of the right or left extremity, or complete paralysis of the external popliteal nerve and consequent footdrop. Id. Furthermore, other diagnostic codes for foot disabilities that provide for a rating higher than 20 percent are not more appropriate because the evidence of record does not support their application. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (flat foot), Diagnostic Code 5278 (claw foot), and Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). VA X-rays reveal the positioning and alignment of his right and left feet was always normal and the July 2012 VA examiner found no evidence of malunion or nonunion of the tarsal or metatarsal bones. Therefore, these diagnostic codes cannot be applied. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Thus the Veteran's right and left calcaneal heel disability is properly rated under DC 5284. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by adequate pathology and be evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. The effects of pain reasonably shown to be due to the Veteran's service-connected foot disabilities are contemplated in the currently assigned 20 percent for the right and left foot disabilities. Even with consideration of the VA examiner's report of pain and tenderness affecting the Veteran's daily activities, there is no indication that pain, due to disability of the right and left foot, caused functional loss greater than that contemplated by the currently assigned evaluations. 38 C.F.R. §§ 4.40, 4.45; DeLuca. A separate evaluation for pain is not for assignment. Spurgeon The Board also notes that, in January 2012, the Veteran's service representative asserted that the Veteran required the use of a cane to ambulate and suffered from bilateral foot pain with any attempts at walking that indicated he suffered from loss of use of the bilateral feet. However, as set forth in detail above, while Veteran's right and left calcaneal heel spurs cause pain, the evidence does not show that he has actually lost the use of his foot. He is able to walk and stand, albeit with reported limitations, and clearly does not suffer from loss of use of the right or left foot. The VA examiner concluded on the 2012 examination that the Veteran would not be equally well served by amputation at the site of election. The evidence demonstrates he has more function each foot than would be served with an amputation stump. See 38 C.F.R. § 4.63. As such, the Board concludes that a 20 percent rating, but not higher, is warranted for the Veteran's left plantar calcaneal heel spur since September 29, 2008, when he filed his current increased rating claim. The benefit of the doubt has been resolved in the Veteran's favor to this limited extent. 38 U.S.C.A. § 5107(b). However, the preponderance of the probative evidence of record is against ratings in excess of 20 percent for the right and left foot disabilities at any time during the appeal period and, to this extent, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b). See generally Gilbert v. Derwinski, and Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). Extraschedular The Board has also considered whether the Veteran's back and right lower extremity disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2008). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here the Veteran's low back disability is manifested by limitation of motion; and associated functional impairment that is specifically contemplated in the rating schedule. The right leg radiculopathy is manifested by radiating pain and diminished or absent reflexes. These manifestations are also contemplated in the rating criteria. The rating criteria for the heel disabilities contemplate the overall level of disability from all residuals of a foot injury and thereby encompass all of the manifestations of the heel disabilities. Accordingly, further consideration of extraschedular ratings is not warranted. Rice In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record reveals that the Veteran has told VA clinicians that he is retired due to eligibility by age or duration of work. It has not been suggested that his back, right and left foot, and right lower extremity disabilities preclude his employment. Thus, any further consideration of the Veteran's claims under Rice is not warranted at this time. ORDER An increased, 40 percent, rating for degenerative disc disease of the lumbar spine is granted. An initial rating of 20 percent for radiculopathy of the right lower extremity is granted, effective September 29, 2008. An increased rating for a calcaneal spur of the right heel is denied. An increased, 20 percent, rating for a calcaneal spur of the left heel is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs