Citation Nr: 1312771 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 07-24 254A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating higher than 10 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine prior to September 25, 2006, and to a rating higher than 40 percent from September 25, 2006, forward. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and the Veteran's brother ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to October 1978 and from July 1979 to November 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, dated in April 2006, that denied entitlement to a rating in excess of 10 percent for the Veteran's DDD and DJD of the lumbar spine. Subsequently, in a February 2009 rating decision, the RO increased the Veteran's rating for her DDD and DJD of the lumbar spine to 40 percent, effective September 25, 2006. In January 2011, the Veteran and her brother testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In June 2011, the Board remanded the increased rating claim for lumbar spine disability for further development, and it has since returned to the Board for further appellate consideration. The Veteran was granted separate 10 percent ratings for radiculopathy of the right and left lower extremities in an April 2012 rating decision. She was assigned a 10 percent rating for the left lower extremity, effective from July 27, 2011, and a 10 percent rating for the right lower extremity, effective from June 26, 2009. Notably, she has not expressed disagreement with the 10 percent ratings assigned, and these ratings are not on appeal before the Board. See 38 C.F.R. §§ 20.200, 20.201. FINDINGS OF FACT 1. Prior to September 25, 2006, there was no evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of disc disease. 2. From September 25, 2006, neither unfavorable ankylosis of the entire thoracolumbar spine nor incapacitating episodes of intervertebral disc disease having a total duration of at least six weeks per year have been shown. 3. From September 26, 2006 to June 25, 2009, the Veteran demonstrated mild incomplete paralysis of the sciatic nerve, on the right. 4. From June 22, 2009 to July 26, 2011, the Veteran demonstrated mild incomplete paralysis of the sciatic nerve, on the left. CONCLUSIONS OF LAW 1. Prior to September 25, 2006, the criteria are not met for a rating higher than 10 percent for the lumbar spine disability. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5235-5243 (2012). 2. From September 25, 2006, the criteria are not met for a rating higher than 40 percent for the lumbar spine disability. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes 5235-5243 (2012). 3. From September 26, 2006 to June 25, 2009, the criteria are met for a separate 10 percent rating, and not higher, for right lower extremity radiculopathy. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124(a), Diagnostic Code 8260 (2012). 4. From June 22, 2009 to July 26, 2011, the criteria are met for a separate 10 percent rating, and not higher, for left lower extremity radiculopathy. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.124(a), Diagnostic Code 8260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To this end, upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all elements of a claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court made clear that VCAA notice errors, even if shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Furthermore, as specifically concerning increased-rating claims like the one at issue, the Federal Circuit Court overturned the lower Court's (CAVC's) ruling in concluding that generic or general notice is sufficient and need not be tailored to each specific Veteran's individual circumstances, including in terms of specifying alternative diagnostic codes and the submission of "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this particular case at hand, these VCAA notice requirements initially were satisfied by virtue of a letter sent to the Veteran in December 2005, prior to adjudicating her low back claim in the April 2006 decision on appeal here. A March 2006 letter advised her as to how disability ratings and effective dates are assigned. The claim was then readjudicated in a July 2007 SOC. An additional VCAA letter was sent to her in July 2011. Collectively, these VCAA letters informed her of the evidence required to substantiate her claim and of her and VA's respective responsibilities in obtaining this supporting evidence, including advising her of how disability ratings and effective dates are assigned. Thereafter the lumbar spine claim was readjudicated by way of an April 2012 SSOC. VA also has a duty to assist her in fulfilling developing the evidence concerning her claims. This duty includes assisting her n the procurement of records and, when necessary, providing an examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains her service treatment records (STRs), as well as her post-service VA and private evaluation and treatment records and lay statements. She also has had VA compensation examinations assessing and reassessing the severity of her lumbar spine disability, most recently in August 2011. Additionally, she and her brother have testified at a hearing before the undersigned Veterans Law Judge. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained. Hence, no further notice or assistance to her with her claim is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Claim for Higher Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and increase in the disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has reviewed all of the evidence of record, the more critical evidence ("temporal focus") consists of that generated during the appeal period, which, in actuality, extends from one year prior to the filing of these increased-rating claims. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). And the Court has held that, in determining the present level of disability over this time span, a "staged" rating is required if the factual findings show distinct time periods when the service-connected disability exhibits symptoms warranting different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). 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). 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 the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). In assess the appropriateness of the ratings for the disability at issue, the Board has reviewed all of the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, however, it need not discuss each piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning these claims. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him or her. Id. The Veteran's service-connected lumbar spine disability may be rated under the General Rating Formula for Diseases and Injuries of the Spine set forth in 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5235-5243. Under this General Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of his thoracolumbar (thoracic and lumbar) spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A higher 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and an even higher and maximum 100 percent rating requires unfavorable ankylosis of her entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees; backward extension is from 0 to 30 degrees; left and right lateral flexion (side bending) is from 0 to 30 degrees; and left and right rotation (twisting to each side) is from 0 to 30 degrees. See Note (2) in DCs 5235-5242, also referencing 38 C.F.R. § 4.71a, Plate V. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996), citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Note (5) in DCs 5235-5242 further explains that, 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 (0 degrees) always represents favorable ankylosis. The Veteran's lumbar spine disability also may be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes found in Diagnostic Code 5243. IVDS is evaluated either on the total duration of incapacitating episodes over the past twelve months, so year, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with evaluation of all other disabilities, whichever method results in the higher evaluation. Diagnostic Code 5243 provides a 10 percent rating when there are incapacitating episodes having a total duration of at least one but less than two weeks during the past 12 months. A 20 percent rating is assigned there are incapacitating episodes having a total duration of at least two but less than four weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least four but less than six weeks per year. And a maximum 60 percent rating is available when there are incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year. Note (1) in DC 5243 defines an incapacitating episode as a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. Note (1) in the General Rating Formula also specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. In this case, the Veteran's claim of entitlement to an increased rating for her service-connected lumbar spine disability was received on September 8, 2005, therefore the Board must assess the severity of her disability since the year prior, meaning since September 8, 2004. In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned for a higher rating depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). In January 2006, the Veteran underwent a VA compensation examination of the spine. She reported low back discomfort without neuro-radiculopathy. Forward flexion of the lumbar spine was to 90 degrees. She rotated to 30 degrees, and laterally bent to 35 degrees, both bilaterally. Straight leg raising was negative. Reflexes in the lower extremities were 2+ (normal) and equal, bilaterally. Sensation from L1 to S1 was intact. Repetitive use did not necessarily cause back pain. Flare- ups or hospitalizations referable to back pain were not shown. There was no objective evidence of painful motion, spasm, weakness, or local tenderness. She had normal heel-toe gait but listed to the left because of knee pain. Motor examination was entirely intact, as she was graded as 5+ throughout the lower extremities. She had no incapacitating episodes in the previous 12 months. Reflexes were intact in the Achilles and quadriceps, bilaterally. Straight leg raising was normal. Diagnosis was mild facet arthritis in the lumbar spine. There was no clinical indication or x-ray evidence of ankylosing spondylitis. According to a September 2006 treatment record from Physicians Regional MC, she reported back pain and stiffness, accompanied by right leg problems. Her bowel and bladder seemed to be affected. On examination, she seemed quite uncomfortable and stood slowly and with great effort. She walked stooped forward and had marked difficulty in extending or flexing. She could only flex a few degrees. There was tenderness over her back. Impression was chronic low back and right leg pain and possible lumbosacral radiculopathy. A September 2006 magnetic resonance imaging (MRI) scan of the lumbar spine showed lower lumbar degenerative facet spondylosis. There was no evidence of disc disease. A March 2007 MRI scan showed prominent right-side facet degenerative changes at L1-2 resulting in mild right foraminal narrowing. In August 2007, the Veteran underwent an additional VA compensation examination of the spine. It was noted that the veteran had been involved in a motor vehicle accident (MVA) in October 2006. A history of leg or foot weakness and unsteadiness was noted, as well a decreased motion, stiffness, weakness, spasms, and pain. Objective examination of the thoracolumbar spine revealed bilateral spasm, guarding, pain with motion, tenderness, and weakness. Muscle spasm, localized tenderness or guarding was not severe enough to cause abnormal gait or abnormal spinal contour. The Veteran's posture was described as stooped. Her head position was normal. Her gait was antalgic due to poor propulsion. There were no abnormal spinal curvatures such as gibbus, kyphosis, listing, lumbar flattening, lumbar lordosis, scoliosis, or reverse scoliosis. Motor examination of the lower extremities was as follows: Hip flexion and extension was 4/5 (active movement against some resistance); knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension was 5/5 (normal). Muscle tone was normal. There was muscle atrophy - left thigh circumference was .5 inch smaller than the right. Sensory examination of the lower extremities was normal as to vibration, pain (pinprick), light touch, and position sense. Reflex examination was as follows: ankle jerk was 2+ on the right, and 1+ on the left; ankle jerk reflex was normal, bilaterally; and plantar flexion (Babinski) was normal. X-rays of the lumbar spine taken in conjunction with the August 2007 examination showed evidence of mild to moderate osteoarthritis of the vertebrae and degenerative changes of the facet. Forward flexion of the thoracolumbar spine was to 10 degrees with pain (the Veteran stated that she was unable to bend any further due to pain). Right lateral bend was to 15 degrees with pain. Left lateral bend was to 29 degrees with pain. Right rotation was to 30 degrees, and left rotation was to 15 degrees with pain. Weakness was also present. There was no additional range of motion loss due to fatigue, lack of endurance, or lack of incoordination. There was lumbar spasm at mid-spinous process of the lumbar and thoracic spine during range-of-motion testing. There was no thoracolumbar spine ankylosis. The Veteran reported being employed as a border patrol officer and indicated that in October 2006 she was placed in a desk job due to her inability to meet the physical requirements of a border patrol officer. Diagnosis was degenerative joint/disc disease of the lumbar spine; lumbar spine osteoarthritis; lumbar spine disc disease with right lower extremity radiculopathy; and chronic low back pain/arthralgia. In February 2009, the Veteran underwent an additional VA compensation examination of the spine. She reported continued low back pain and stiffness, tingling in her legs, and numbness in the right foot after prolonged sitting. It was noted that she did not require bed rest for her episode of thoracolumbar region symptoms but noted that her low back very stiff after driving for a long time. On examination, her posture was noted as normal, as was her head position. There were no abnormal spinal curvatures. There was no objective evidence of spasms, atrophy, guarding, pain with motion, tenderness, or weakness of the thoracic sacrospinalis. Muscle strength and tone in the lower extremities was normal. Sensory and reflex examinations in the lower extremities were also normal. Flexion of the thoracolumbar spine was to 20 degrees; and extension, lateral flexion and lateral rotation, bilaterally, were from zero to 15 degrees. There was pain on active range of motion and upon repetitive motion. No additional limitations were noted after repetitive motion. Straight leg raising was negative at 30 to 60 degrees, bilaterally. X-rays of the lumbar spine taken in conjunction with the examination showed mild to moderate osteoarthritis of the vertebrae and degenerative changes of the facet. The Veteran indicated that she changed jobs due to an exacerbation of low back pain after a 2006 MVA. Diagnosis was degenerative joint/disc disease of the lumbar spine with lumbar radiculopathy of the right lower extremity. An April 2009 MRI report from Neuroscience and Spine Associates (N.A.S.A.) showed evidence of L5-S1degenerative change of facet joint; L4-L5 asymmetric mild right foraminal broad disc protrusion and degenerative changes of facet joints; L3-L4 mild broad annular bulge and degenerative change of facet joints; L2-L3 mild right foraminal broad disc protrusion producing mild narrowing of the right neural foramen.; L1-L2 normal; and small hemangioma in L2 vertebral body on the right. In June 2009, the Veteran underwent a right L4-L5 foraminotomy due to lumbar radiculopathy at Physicians Regional MC. According to July 2009 progress notes from N.A.S.A., the Veteran reported that the June 2009 surgery "...really cleared up my back, now I just have a little postoperative stiffness and pain." She had back, buttocks, and lower extremity pain and paresthesias. Motor examination showed mild referred pain to the lumbar region with lower extremity testing. Lower extremity testing showed slight splinting and guarding in the L5-S1 supplied muscles. Impression was recent lumbar surgery 6/09; lumbar facet; mechanical back pain; lumbar strain/sprain; and facet syndrome. Physiotherapy to the lumbar region and TENS trial were recommended. Her physician provided her with a note excusing her from work beginning on July 15, 2009. According to September 2009 progress notes from N.A.S.A, the Veteran felt that her back was not getting better. Examination of her lumbar spine triggered spasm at L4-5 and L5-S1 facets and paraspinous muscles. There was trigger over the SI joints and bilateral sciatic notch. Flexion and extension of the lumbar spine produced mechanical back pain. Lower extremity testing showed referred pain to the lumbar region, in pertinent part. Impression was bilateral L5 radiculopathy; status-post neurological intervention; lumbar fact; and spasm. According to October 2009 progress notes from N.A.S.A., the Veteran's range of lumbar spine motion was limited due to spasm. She received multiple bilateral trigger injections of the L3-4, L4-5, and L5-S1 paraspinous muscles over the quadratus lumborum, and over the piriformis muscles. The physician allowed the Veteran to return to light-medium duty. According to June 2010 progress notes from N.A.S.A, the Veteran's complaint of back pain was noted. Her gait was slow and deliberate. Coordination, tendon reflexes, and sensation were remarkable for a stiff, slow rigid gait. Impression, in pertinent part, was lumbar strain/sprain/spasm. According to September 2010 progress notes from N.A.S.A, she reported continued low back pain. Examination showed involvement at the L4-5 and L5-S1 facets and paraspinous muscles. Spasm limited her range-of-motion. There was hyperesthesia. A July 2011 MRI report from N.A.S.A. showed evidence of L5-S1degenerative change of facet joints; L4-L5 mild bulging annulus, annular tear, and degenerative changes of facet joints; L3-L4 bulging annulus with small annular tear and degenerative changes of facet joints; L2-L3 mild bulging annulus.; L1-L2 mild bulging annulus. In an August 2011 letter, the Veteran's physician at N.A.S.A indicated that the Veteran's lumbar study showed left sided L4-5 lateral recess stenosis. A left L4 selective nerve root block was recommended. In August 2011, the Veteran had an additional VA compensation examination to reassess her service-connected lumbar spine disability. She reported continued pain in the low back, as well as stiffness. On examination, she was noted to be stooped. There was evidence of lumbar flattening and reverse lordosis. Her head was in a normal position, and she was symmetrical in appearance. There was no evidence of gibbus, kyphosis, lumbar lordosis, list, or scoliosis. There was also no evidence of ankylosis of thoracolumbar or cervical spine segments. Examination of the muscles of the spine revealed spasms, guarding, pain with motion, tenderness, and weakness, bilaterally. There was no evidence of atrophy of the spinal muscles. There was muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contours. Flexion of the thoracolumbar spine was to 30 degrees, and extension was to 10 degrees. Lateral flexion and lateral rotation was to 10 degrees, bilaterally. There was objective evidence of pain on active range of motion and upon repetitive motion testing. There were no additional limitations after repetitive motion testing. Reflexes of the lower extremities were normal, as was plantar flexion. Sensory examination (vibration, position sense, pain/pinprick, light touch) of the lower extremities was normal. There was no dysesthesias. A detailed motor examination of the lower extremities (ankle dorsiflexion, ankle plantar flexion and great toe extension) was also normal. Muscle tone was normal and there was no evidence of muscle atrophy. Lasegue's sign was not positive. Testing for non-organic physical signs was conducted and determined to be negative for abnormality. It was noted that the Veteran had acute pain episodes causing bed rest 2 to 3 times per week lasting 4-12 hours. According to a September 2011 hospital operative report from Physicians Regional MC, the Veteran underwent a left L4-L5 foraminotomy on account of her lumbar radiculopathy. III. Analysis Having reviewed the record, the Board finds that a higher rating is not warranted for the Veteran's service-connected lumbar spine disability. In this regard, the Board has reviewed the relevant evidence prior to September 25, 2006, and finds no evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees to warrant a rating higher than 10 percent. In fact, the medical evidence actually shows that the Veteran had normal flexion to 90 degrees, with no objective evidence of pain, during the January 2006 VA examination. The January 2006 VA findings also do not result in a combined range of thoracolumbar motion not greater than 120 degrees. While the Veteran did report low back pain at the time of her January 2006 VA examination, she denied any flare-ups, there was no objective evidence of painful motion on examination, and she was able for forward flex to 90 degrees. Even accepting the Veteran's complaints of pain, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Moreover, there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour during the applicable time period. The VA examiner in January 2006 stated that there was no objective evidence of spasm. Consequently, a rating higher than 10 percent is not warranted for the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine prior to September 25, 2006. The Board notes further that, prior to September 25, 2006, there was no evidence of any incapacitating episodes to warrant a higher evaluation under Diagnostic Code 5243 for IVDS. The VA examiner in January 2006 stated that the Veteran had no incapacitating episodes during the last 12 months. For the period from September 25, 2006, forward, there must be evidence of "unfavorable" ankylosis of the thoracolumbar spine to warrant a rating higher than 40 percent under the General Formula, and this has not been objectively shown. The August 2007 and August 2011 VA examination reports affirmatively indicate that ankylosis is not present, and the remaining medical records show no evidence of ankylosis. The Veteran has consistently demonstrated motion of her spine, as noted throughout the medical records. Consequently, the Board finds that a rating higher than 40 percent under the General Rating Formula is not currently in order. In deciding this claim, the Board acknowledges the evidence of pain on range-of-motion testing during the August 2007, February 2009, and August 2011 VA examinations; however, the Veteran is already assigned the maximum disability rating available from September 25, 2006, forward, based on symptomatology that includes limitation of motion other than unfavorable ankylosis, therefore it is not necessary to consider whether 38 C.F.R. §§ 4.40, 4.45 and 4.59 are applicable during this period. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board notes further that Diagnostic Code 5243 does not allow for a rating higher than 40 percent for the period beginning on September 25, 2006. As indicated, a maximum 60 percent rating is available under Diagnostic Code 5243 when there are incapacitating episodes of IVDS having a total duration of at least six weeks but less than twelve weeks per year. In this case, such criteria have not been met. The February 2009 VA examination report indicates that the Veteran had no incapacitating episodes, and to the extent that the episodes reported during the August 2011 VA examination by the Veteran are "incapacitating," as defined by regulation, they do not amount to at least 6 weeks in the previous year. As such, a rating higher than 40 percent is not currently warranted under Diagnostic Code 5243. As noted above, the Veteran was recently granted separate 10 percent ratings for radiculopathy of the right and left lower extremities in the April 2012 rating decision. She was assigned a 10 percent rating for the left lower extremity, effective from July 27, 2011, and a 10 percent rating for the right lower extremity, effective from June 26, 2009. Notably, she has not expressed disagreement with the 10 percent ratings assigned, and these ratings are not on appeal before the Board. See 38 C.F.R. §§ 20.200, 20.201. Further review of the record does not show she experiences any other type of associated neurologic impairment, such as bowel or bladder dysfunction, on account of her lumbar spine disability. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, irrespective of whether they have been raised by her, her representative, or otherwise by the record, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board notes that the Veteran demonstrated radiculopathy of her right lower extremity as early as September 2006. In a September 2006 treatment record from Physicians Regional MC, she reported back pain and stiffness, accompanied by right leg problems. The impression was chronic low back and right leg pain and possible lumbosacral radiculopathy. On VA examination in August 2007, she was diagnosed as having right lower extremity radiculopathy. Therefore, the Board finds that a separate 10 percent rating is warranted for right lower extremity radiculopathy from September 26, 2006 to June 25, 2009, under DC 8620. A rating in excess of 10 percent is not in warranted, as there was no evidence of moderate incomplete paralysis of the sciatic nerve. Specifically, in September 2006, her reflexes were all symmetric at 1+ to 2 and there was dullness to pin and light touch in the right leg. In August 2007, sensory examination of the lower extremities was normal as to vibration, pain (pinprick), light touch, and position sense. Ankle jerk reflex was normal. In February 2009, muscle strength and tone in the lower extremities was normal. Sensory and reflex examinations in the lower extremities were also normal. These findings do not approximate moderate incomplete paralysis of the sciatic nerve. In addition, as radiculopathy of the right lower extremity was no shown prior to September 26, 2006, a separate rating is not warranted prior to the time. Specifically, on VA examination in January 2006 the Veteran reported low back discomfort without neuro-radiculopathy. Reflexes in the lower extremities were 2+ (normal) and equal, bilaterally and sensation from L1 to S1 was intact. Motor examination was entirely intact, as she was graded as 5+ throughout the lower extremities. Reflexes were intact in the Achilles and quadriceps, bilaterally, and straight leg raising was normal. With respect to the left lower extremity, the Board finds that radiculopathy was demonstrated as early as June 22, 2009. A NASA neurological consultation on that date showed right greater than left L5-S1 radiculopathy. Therefore, the Board finds that a separate 10 percent rating is warranted for left lower extremity radiculopathy from June 22, 2009, to July 26, 2011, under DC 8620. A rating in excess of 10 percent is not in warranted, as there was no evidence of moderate incomplete paralysis of the sciatic nerve. Examination revealed only hypoactive reflexes and hypesthesia to pinprick and light touch. In addition, as radiculopathy of the left lower extremity was no shown prior to June 22, 2009, a separate rating is not warranted prior to the time. As noted above, on VA examination in January 2006 the Veteran denied any neuro-radiculopathy and neurological examination was essentially normal. In summary, the Board concludes that a rating higher than 10 percent for the lumbar spine disability is not warranted prior to September 25, 2006, nor is a rating higher than 40 percent warranted thereafter. However, a separate 10 percent rating, and not higher, is warranted for right lower extremity radiculopathy from September 26, 2006 to June 25, 2009, and for left lower extremity radiculopathy from June 22, 2009 to July 26, 2011. Finally, in exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of this VA regulation, for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, though, the schedular rating criteria contemplate the extent and severity of the Veteran's symptoms of her lumbar spine and lower extremity disabilities. Such disabilities primarily involve degenerative changes due to disc and joint disease and consequent limited and painful motion, with some reported incapacitating episodes, and degrees of incomplete paralysis, symptoms and manifestations that are contemplated in the applicable schedular rating criteria. ORDER Prior to September 25, 2006, entitlement to a rating higher than 10 percent for DDD and DJD of the lumbar spine is denied. From September 25, 2006, forward, entitlement to a rating higher than 40 percent for DDD and DJD of the lumbar spine is denied. A separate 10 percent rating, and not higher, is granted for right lower extremity radiculopathy from September 26, 2006 to June 25, 2009. A separate 10 percent rating, and not higher, is granted for left lower extremity radiculopathy from June 22, 2009 to July 26, 2011. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs