Citation Nr: 1311448 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 09-19 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine with sacroiliac strain. 2. Entitlement to a separate rating higher than 20 percent for radiculopathy of the left lower extremity, secondary to the lumbar spine disability. 3. Entitlement to a separate compensable rating for radiculopathy of the right lower extremity, secondary to the lumbar spine disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active service from February 1951 to February 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision, the Veteran was granted an increased rating to 20 percent for service-connected degenerative disc disease of the lumbar spine with sacroiliac strain, effective from January 22, 2007. Subsequently, in an April 2009 rating decision, the Veteran was again granted an increased rating to 40 percent for service-connected degenerative disc disease, lumbar spine with sacroiliac strain, effective from January 22, 2007. Because less than the maximum available benefit for a schedular rating was awarded, the aforementioned issue of an increased evaluation for service-connected degenerative disc disease, lumbar spine with sacroiliac strain, is properly before the Board. See Fenderson v. West, 12 Vet. App. 116 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded this case for additional development in August 2012. There was substantial compliance with the directives of the Board's remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The case is now ready for appellate review. With respect to the issue of peripheral neuropathy, the RO granted service connection for radiculopathy of the left lower extremity in a February 2013 rating decision, assigning a 20 percent rating from January 22, 2007. The Board finds, however, that the RO should have adjudicated the matter as part of his increased rating claim for the lumbar spine disability. The General Rating Formula for the Spine notes that any associated objective neurologic abnormalities should be rated separately under the appropriate diagnostic code. Although the issue was framed as service connection for peripheral neuropathy, secondary to his lumbar spine disability, as the spine regulations specifically allow for separate neurological ratings secondary to the spine, the Board will address the issue of entitlement to separate compensable ratings for radiculopathy of the bilateral lower extremities as part of the Veteran's increased rating claim for the lumbar spine disability, rather than as a claim for service connection. Although the Veteran did not file a separate claim for entitlement to a TDIU, this issue has been raised by the record based on the Veteran meeting the rating criteria for a TDIU, as a result of this Board decision, and also the Veteran being unable to walk or drive due to his lumbar spine disability. Therefore the issue of entitlement to a TDIU will be addressed as part of the Veteran's increased rating claim for his lumbar spine disability with radiculopathy. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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). The issue of entitlement to a TDIU 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. Effective January 22, 2007, the Veteran's thoracolumbar spine disability is manifested by painful motion, and extension most severely limited to 0 degrees due to pain. 2. Effective March 5, 2009, the Veteran's thoracolumbar spine disability is manifested by painful motion, and unfavorable ankylosis in a forward stooped position, which impedes vision. 3. The Veteran's lumbar spine is associated with moderately severe radiculopathy of the bilateral lower extremities manifested by subjective complaints of radiating pain and numbness into both legs and objective findings of weakness, absent reflexes, decreased sensation, severe limitations in ability to walk, as well as positive straight leg raise testing on the left. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for service-connected lumbar spine disability have not been met, effective January 22, 2007 to March 5, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5237 (2012). 2. The criteria for a rating of 50 percent, but not higher, for service-connected lumbar spine disability have been met, effective March 5, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5237 (2012). 3. The criteria for a rating of 40 percent, but not higher, for radiculopathy of the left lower extremity, secondary to the service-connected lumbar spine disability have been met, effective January 22, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520 (2012). 4. The criteria for a 40 percent rating, but not higher, for radiculopathy of the right lower extremity, secondary to the service-connected lumbar spine disability have been met, effective January 22, 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in March 2007 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that worsening of his lumbar spine disability had on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The March 2007 letter also provided the Veteran with information on how VA determines and assigns effective dates. The March 2007 letter satisfied VA's duty to notify. The Veteran was notified of this information again in a February 2009 letter, along with the diagnostic criteria used to rate his lumbar spine disability. Regarding the duty to assist, the RO has obtained the Veteran's service records, VA treatment records, and private treatment records. The RO also has provided him with VA examinations in March 2007, March 2009, and an addendum medical opinion in August 2012. The RO also scheduled the Veteran for a VA peripheral neuropathy examination in January 2013, but was informed that the Veteran was not able to travel to an examination due to being in a wheelchair. He requested that the rating be done on the records in the file. All relevant records have been added to the file and considered in the below determination. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating for Lumbar Spine with Radiculopathy The RO originally granted service connection for a lumbar spine disability in May 1954, assigning a noncompensable rating. The Veteran filed his present increased rating claim in January 2007. He contends that he should be assigned a 100 percent rating for his lumbar spine, as he is not able to walk because of his impairment. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. However, as discussed below, in this case, the record reflects that the Veteran's disabilities have remained constant with respect to the applicable schedular criteria. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran is currently service-connected for degenerative disc disease, lumbar spine with sacroiliac strain, currently evaluated as 40 percent disabling under the current Formula for Rating Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, DC 5237 (2012). Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal flexion of the thoracolumbar is zero to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Intervertebral disc syndrome should be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran was afforded VA examinations in March 2007 and March 2009. The March 2007 VA examination noted that he experienced constant daily pain in the low back, including stiffness, at a level of 7-8/10. The pain occasionally radiated down to the gluteal area on the right side. The Veteran noted the radiating pain was severe and sharp in nature. He stated that he did not really have flare-ups, and there was no limitation of motion when he had a flare-up because he could not do much of anything when one did occur. The Veteran reported that he wore a back brace and used a walker and a wheelchair. He stated that he had back pain that could be incapacitating. The Veteran lived alone at the time and while he could not drive, and had help cooking and cleaning, he was able to do his own toileting and bathing. Upon examination it was noted that Veteran had spasms of the lumbar spine with severe pain on palpation. The Veteran exhibited forward flexion to 40 degrees and extension was not possible due to pain. Right lateral flexion was not possible and left lateral flexion was limited to 5 degrees. Right and left lateral rotation was not possible because of pain. The examiner noted that the Veteran had painful movement with spasm, tenderness, and guarding. Neurological testing revealed lower extremity strength of 4/5 distally bilaterally in all major muscle groups. The Veteran exhibited decreased sensation to pinprick, vibratory and proprioception in his lower extremities up to the level of the knee joint. Bilateral knee reflexes were 1+. Ankle reflexes could not be elicited. Plantar reflexes were downgoing. The Veteran demonstrated a severely limited gait with ataxia. Indeed, he could only walk a few steps without his walker. Finally it was noted the Veteran did not have any rectal or bladder loss as a result of his back pain. X-rays taken in conjunction with the examination revealed prominent degenerative bone and disc changes throughout the lumbar spine with degenerative stenosis of the spinal canal. The Veteran was diagnosed with degenerative disc disease of the lumbar spine with spinal stenosis. The March 2007 VA examination did not provide repetitive testing with regard to range of motion and as such the Veteran was afforded another VA examination in March 2009. The March 2009 VA examination noted that since the March 2007 VA examination the Veteran's condition had worsened. The Veteran stated that he had epidural and steroid injections which had not helped his chronic back pain. The Veteran also reported neck surgery in February 2008 and stated that surgery on his lumbar spine was not possible at that time due to the severity of the degeneration. It was noted the Veteran lived alone but had help with housework, chores, and cooking. The Veteran stated that he experienced daily, constant, sharp, and dull pain in his low back at a level of 9/10. The Veteran also stated that his pain did not radiate into his arms or his legs and that he experienced no tingling, weakness, or numbness in his back at any time. The Veteran further stated that his low back condition flared up when bending, lifting, or walking, and because of weather, and overuse. The flare-ups were stated to cause pain at a level of "11"/10 and last from 2-3 hours to 2-3 days and could occur on a daily basis. Furthermore, the Veteran reported that after repetitive use and during flare-ups his range of motion was additionally more severely limited by pain, weakness, incoordination, and fatigability, with pain having the major functional impact. The examiner noted that there were no objective findings during the examination of additional limitation of movement following brief repetitive use testing with three repetitions. The Veteran stated that he had not had any incapacitating episodes over the last 12 months. The Veteran's back condition did affect his ability to walk and stand in that he could only walk a few feet and stand for only a few minutes. The Veteran reported using a walker. The Veteran was retired, but reported that his low back condition affected his daily and recreational activities. Upon examination it was noted that the Veteran's posture was abnormally hunched forward at 20 degrees. The Veteran's gait was wide-based, antalgic, and unsteady with a shortened stance phase on the right. The Veteran was unable to rise on his toes, on his heels, or from a squat position due to unsteadiness. The Veteran was also unable to tandem walk due to unsteadiness. Romberg test was positive for instability while standing with his feet together and his eyes closed. The Veteran exhibited diffuse tenderness to palpation over the lower lumbar spine, right and left sacroiliac joints, right and left sciatic notches, and adjacent right and left paraspinal muscles. There was palpable spasm. With regard to range of motion, the Veteran exhibited forward flexion to 10 degrees with pain beginning at 10 degrees. The Veteran was unable to perform extension due to stenosis and pain. The Veteran also was unable to perform right and left lateral flexion and right and left lateral rotation due to severe pain and stenosis. He complained of pain with all these movements and repetitive use with three repetitions showed no change. However, it was noted that during a flare-up the Veteran's forward flexion would be reduced to 0 degrees. Neurological testing indicated that deep tendon reflexes were difficult to elicit bilaterally at the patellar and Achilles tendons. Straight leg raising test was positive on the left with pain radiating down the left leg. Strength was 3/5 in the bilateral lower extremities and sensation was intact to light touch bilaterally in the lower extremities. Finally the Veteran denied any bladder or bowel problems. The examiner reviewed the x-rays taken with previous examination. The Veteran was diagnosed with chronic low back strain, degenerative disc disease of the lumbar spine, and spinal stenosis. Based on these medical findings, as previously mentioned, the Board determined in August 2012 that additional development was warranted in the form of an addendum opinion from the March 2009 VA examiner. While the Veteran was not diagnosed with any neurological disorder, as noted above, both the March 2007 and March 2009 VA examinations show what appear to be neurological abnormalities of the bilateral lower extremities. In this regard the March 2007 VA examination report noted decreased strength, decreased sensation to pinprick, vibratory, and proprioception in the lower extremities. Reflexes in the knee were reduced and there were no reflexes in the ankles. The March 2009 VA examination report noted that the Veteran exhibited a positive straight leg raising on the left with pain radiating down his left, decreased strength in both lower extremities, and some issues with deep tendon reflexes. Neither VA examiner attributed these issues to the Veteran's lumbar spine condition, indeed there was no indication at all as to the cause of the Veteran's neurological problems. Given the noted neurological issues, the Board found that an addendum opinion was warranted to determine whether the Veteran has any neurological symptomatology of the lower extremities that is related to his lumbar spine condition, thus, potentially warranting separate evaluations from the orthopedic manifestations of the Veteran's low back disability. Additionally, noting the Veteran's extremely limited range of motion, an opinion was requested with regard to whether the Veteran's symptomatology is analogous to unfavorable ankylosis. The Veteran's posture was described as abnormally hunched forward at 20 degrees and that he exhibited forward flexion to only 10 degrees with pain beginning at 10 degrees. Additionally, the Veteran was unable to perform extension, right and left lateral flexion, and right and left lateral rotation due to severe pain and stenosis. The VA examiner was to address how the Veteran's hunched posture affects his flexion and whether any of the above criteria for unfavorable ankylosis are applicable to his disability. An addendum opinion was subsequently provided in August 2012 by the same examiner who conducted the examination in March 2009. With respect to the peripheral neuropathy, the examiner determined that lumbar radiculopathy of the left lower extremity was at least as likely as not (50/50 probability) caused by or a result of the service-connected degenerative disc disease of the lumbar spine. The rationale was that nerve irritation was caused by damage to the discs between the vertebrae. Damage to the disc occurred because of degeneration ("wear and tear") of the outer ring of the disc, traumatic injury, or both. As a result the central softer portion of the disc could rupture (herniate) through the outer ring of the disc and abut the spinal cord or its nerves as they exit the bony spinal column. This rupture is what caused the commonly recognized pain of "sciatica" that shoots down the leg. The Veteran had severe degeneration of the lumbar spine and thus narrowing of the disc space was common, as well as irritation of the nerve roots. Regarding the Veteran's hunched posture, the examiner noted that at the time of the examination in 2009 the Veteran did have a stooped posture with ankylosis that did somewhat impede his line of vision causing some difficulty with walking. He, however, did not have any complaints of gastrointestinal symptoms, restricted opening of his mouth, difficulty breathing, dyspnea, or dysphagia. The examiner noted that the information was taken from the previous VA examination in 2009, her own personal notes taken during the previous examination, review of the claims file and medical records, and review of current literature in the Journal of Orthopedics (2009). Based on the findings from the VA examiner who provided opinions in March 2009 and August 2012, the next higher rating of 50 percent is warranted for the service-connected lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Specifically the examiner commented in August 2012 that on examination in March 2009 she observed that the Veteran had unfavorable ankylosis in the lumbar spine that somewhat impeded his line of vision. As noted, the next higher 50 percent rating is warranted under the general rating code for spine disabilities if the medical evidence shows unfavorable ankylosis of the entire thoracolumbar spine, which is defined under Note (5) as a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, etc. The VA examiner determined that the Veteran's stooped position due to the unfavorable ankylosis somewhat impeded his line of vision. As the Veteran meets the criteria for unfavorable ankylosis of the lumbar spine, he should be awarded the next higher 50 percent rating. His disability, however, does not warrant an even higher 100 percent rating under the general rating formula for the spine, as there is no medical evidence of unfavorable ankylosis of the entire spine, due to his service-connected lumbar spine disability. 38 C.F.R. § 4.71a. Regarding the effective date for the 50 percent rating, the medical evidence only shows unfavorable ankylosis of the lumbar spine as of the date of the March 2009 VA examination, specifically, March 5, 2009. Prior to this, the March 2007 VA examination report does not indicate any stooped posture. While the Veteran was limited to 0 degrees of extension of the lumbar spine due to pain on examination in March 2007, 38 C.F.R. § 4.71 provides that the anatomical position of the lumbar spine is considered as 0 degrees. See also 38 C.F.R. § 4.71a, Plate V. Thus, the limitation of motion in the lumbar spine was in an anatomically favorable, rather than unfavorable position at the time of the March 2007 examination, and the requirements for a 50 percent rating were not met at that time. Private treatment records dated from January 2008 to February 2008 also do not mention any stooped posture or ankylosis in the Veteran's spine. Therefore, the medical evidence does not demonstrate that prior to March 5, 2009 that a rating higher than 40 percent rating is warranted for the service-connected lumbar spine disability. The medical evidence also does not demonstrate that a rating higher than 40 percent would apply under 38 C.F.R. § 4.71a, DC 5243 for intervertebral disc disease, based on incapacitating episodes. The medical evidence does not show incapacitating episodes, as contemplated by the diagnostic criteria, that have lasted for six weeks. The Veteran has asserted that his lumbar spine disability is incapacitating. However, "incapacitating episode" has a specific definition, which is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Based on these findings, a higher rating is not warranted under 38 C.F.R. § 4.71a, DC 5243. As previously noted, under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate Diagnostic Code. 68 Fed. Reg. 51,456 (2003) (now codified at 38 C.F.R. § 4.71a, DC 5243 (2012)(Note (1)). The Veteran's radiculopathy of the left lower extremity is presently rated as 20 percent disabling from January 22, 2007 under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The RO based the assessment of a 20 percent rating for left lower extremity radiculopathy on the evidence of record, as the Veteran's physical limitations reportedly prevented him from driving to attend another VA peripheral neuropathy examination. The March 2007 VA examination noted the Veteran's complaints of radiating pain that was severe and sharp; he specifically noted pain occasionally radiated to the right gluteal area. A January 2008 private orthopedic clinic record shows the Veteran had pain radiating down from the lumbar spine to both lower extremities, more so on the left. He had paresthesias and weakness, as well. He also had a severe balance disorder and was incapable of standing without holding onto an object. It was noted that the Veteran's lower extremity radiculopathy was related to his severe lumbar spine disease and spinal stenosis. The March 2009 VA examination report mentioned that deep tendon reflexes were difficult to elicit bilaterally at the patellar and Achilles tendons. Straight leg raising was positive on the left and the Veteran stated that there was pain radiating down the left leg during his seated straight leg raising test. Strength was 3 out of 5 in the bilateral lower extremities; and sensation was intact to light touch in the bilateral lower extremities. Even though the RO only assigned a 20 percent rating for the left lower extremity, the Board finds that the Veteran has radiculopathy of both lower extremities associated with his lumbar spine disability that should be rated as 40 percent disabling for each extremity. Specifically the January 2008 private orthopedic record shows the Veteran's lower extremity radiculopathy was related to his severe lumbar spine disease and spinal stenosis, without specifying only the left or right. Moreover, even though the August 2012 examiner only determined that the left lower extremity radiculopathy was related to the lumbar spine disability, she did not determine that the right lower extremity was not related to the lumbar spine disability; it just was not addressed. There is also no medical evidence in the file to support why her rationale for why the left lower extremity radiculopathy is related to the lumbar spine disability would not also apply to the right lower extremity. Therefore, the Board determines that the Veteran's right lower extremity radiculopathy is also shown as related to his lumbar spine disability. In addition, the records shows complaints of radiating pain into both lower extremities; and even though the Veteran complained of pain, more so on the left, the medical evidence more or less shows comparable symptoms in the left and right lower extremities on objective evaluation. The record shows the Veteran has pain and weakness in the lower extremities associated with his lumbar spine disability. He also has some paresthesia and a balance disorder that hinders his ability to walk. He has been somewhat inconsistent in his complaints of radiating pain in the lower extremities. While he complained of radiating pain in March 2007 including specifically in the right gluteal area, on examination in March 2009 he actually stated that he had no radiating pain down the legs; but later on the same March 2009 examination report he complained of radiating pain on the left. Nonetheless, the Veteran has significant objective findings that would suggest that the Veteran had moderately severe incomplete paralysis of the lower extremities. The Veteran had weakness, and some decreased sensation to pinprick on examination in March 2007, as well as absent ankle reflexes. The March 2009 VA examination report mentioned that deep tendon reflexes were difficult to elicit bilaterally at the patellar and Achilles tendons and there also was decreased strength in the bilateral lower extremities. However, sensation was intact to light touch in the bilateral lower extremities on examination in March 2009. In addition the Veteran reportedly had a severely limited gait and could walk a few steps without his walker. Moderately severe impairment is shown as there is significant complaints of weakness and paresthesias impeding the ability to walk, with decreased sensation, as well. Additional studies could not be performed based on the Veteran's physical limitations in attending another VA examination. However, there is no medical evidence of marked muscular atrophy to suggest that the bilateral lower radiculopathy would warrant a rating of 60 percent for severe incomplete paralysis of the sciatic nerve. The medical findings demonstrate, at most, moderate severe impairment in the lower extremities due to radiculopathy under Diagnostic Code 8520. Thus, the record shows that two separate 40 percent ratings, but not higher, are warranted for radiculopathy of the bilateral lower extremities associated with the lumbar spine disability, effective January 22, 2007. The record also shows findings of changes in bowel or bladder over the last few months as reported on the January 2008 private orthopedic record. However, the March 2007 VA examination report noted that the Veteran did not have any rectal or bladder loss as a result of his back pain. On examination in March 2009, the Veteran again denied any bowel or bladder problems. Based on these assessments the Board determines that the preponderance of the evidence shows that any separate rating for bowel or bladder impairment is not warranted. No additional compensation for functional loss resulting from factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. 202, 204-07 (1995) is warranted, as this impairment has been addressed by the 40 percent rating, effective January 22, 2007, the 50 percent rating, effective March 5, 2009, and two separate 40 percent ratings assigned in this decision. In addition, the record shows that the issue of entitlement to special monthly compensation for the lumbar spine disability and radiculopathy has not been raised. Special monthly compensation provided by 38 U.S.C.A. § 1114(l) is payable for being so helpless as to be in need of regular aid and attendance. See 38 C.F.R. § 3.350(b). Inability to dress or undress oneself or to keep oneself ordinarily clean and presentable is considered to be one of the basic criteria for determining whether an individual is in need of regular aid and attendance. See 38 C.F.R. § 3.352(a). The Veteran is reportedly in a wheelchair due to symptoms in his back and radiculopathy and does not like to leave the house much. He also gets help around the house with cooking and cleaning. However, the record consistently shows that the Veteran is able to eat meals, go to the bathroom, and shower without assistance. Also, while he requires assistance outside the home and cannot drive, he is able to walk around his own home without too much help from his walker, according to a statement from his daughter in September 2007. Therefore, special monthly compensation is not warranted. The Board has taken into consideration the Veteran's lay statements regarding the severity of his lumbar spine disability and radiculopathy in determining the ratings assigned. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Veteran is not competent to provide medical determinations with respect to the severity of the lumbar spine and radiculopathy and the Board has relied on the medical evidence of record in this regard. Thus, to the extent that the Veteran has contended that his service-connected disabilities are more severely impaired than the ratings assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For all the foregoing reasons, the Board finds that a 40 percent rating is warranted for the thoracolumbar spine disability, effective January 22, 2007, a 50 percent rating is warranted, effective March 5, 2009, and two separate 40 percent ratings are warranted for radiculopathy of the bilateral lower extremities, effective January 22, 2007; but there are no objective medical findings that would support the assignment of higher ratings for the spine, or ratings in excess of 40 percent each for the lower extremities. Therefore, entitlement to an increased rating of 50 percent, effective March 5, 2008 and no earlier, and two separate ratings of 40 percent, but not higher, for the bilateral lower extremities, are warranted, effective January 22, 2007. See Hart v. Mansfield, 21 Vet. App. 505 (2007). III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran'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." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's the lumbar spine disability with radiculopathy (i.e., painful motion, unfavorable ankylosis, and radiating pain and weakness into the lower extremities) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 40 percent rating assigned under DC 5237 contemplates symptoms such as limitation of motion in the spine due to pain; the 50 percent rating contemplates unfavorable ankylosis; and the two separate 40 percent ratings under DC 8520 contemplates moderately severe neurological impairment from the sciatic nerve. Thus, the Board finds that these rating criteria reasonably describe the Veteran's disabilities. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an increased rating, in excess of 40 percent, for service-connected degenerative disc disease, lumbar spine with sacroiliac strain, effective January 22, 2007 to March 5, 2009, is denied. Entitlement to an increased rating of 50 percent, but not higher, for service-connected degenerative disc disease, lumbar spine with sacroiliac strain, effective March 5, 2009, is granted, subject to the rules governing the payment of monetary benefits. Entitlement to a separate rating of 40 percent, but not higher, for radiculopathy of the left lower extremity, secondary to the lumbar spine disability, is granted, effective January 22, 2007, subject to the rules governing the payment of monetary benefits. Entitlement to a separate rating of 40 percent, but not higher, for radiculopathy of the right lower extremity, secondary to the lumbar spine disability, is granted, effective January 22, 2007, subject to the rules governing the payment of monetary benefits. REMAND The issue of entitlement to a TDIU on a derivative basis has been raised, as noted in the introduction. As a result of this Board decision, the Veteran meets the threshold set forth in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU. Effective January 22, 2007, his lumbar spine disability is rated as 40 percent disabling; and his peripheral neuropathy of the bilateral lower extremities are rated as 40 percent disabling each; so the combined rating with the bilateral factor, effective January 22, 2007, is 80 percent. Effective March 5, 2009, the Veteran's disability rating for the lumbar spine increases to 50 percent; so his combined rating would be 90 percent, effective March 5, 2009. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) Disabilities resulting from common etiology or a single accident, (3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) Multiple injuries incurred in action, or (5) Multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran meets the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). The Veteran's lumbar spine disability with radiculopathy prevents him from driving and severely limits his ability to walk. The Veteran is reportedly retired. It is not clear, based on the Veteran's level of disability and educational and vocational background, that he is able to obtain the type of employment in his field due to his service-connected disabilities, or whether other types of employment would be feasible. Normally, the Board would request an appropriate VA examination on remand. However, given that the Veteran is apparently limited in his ability to attend an examination, the Board determines that a VA medical opinion based on the evidence of record would be more appropriate. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter addressing the criteria for entitlement to a TDIU including the evidence necessary to substantiate the claim, and his responsibility and VA's responsibility in obtaining evidence. 2. Make arrangements for a medical opinion to be provided to determine whether the Veteran's service-connected lumbar spine disability and peripheral neuropathy of the lower extremities prevent him from securing employment. The claims folder should be made available to and reviewed by the clinician. The examiner should provide an opinion with respect to whether the Veteran's service-connected lumbar spine disability with radiculopathy renders him unable to secure or follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion, but factors such as age or impairment caused by nonservice-connected disabilities are not to be considered. All findings, conclusions, and opinions must be supported by a clear rationale. 3. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. Finally, readjudicate the claim on appeal. If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period 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). ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs