Citation Nr: 1313224 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 04-21 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent from July 1, 2009 for degenerative disk disease of the L5-S1 discs. 2. Entitlement to an evaluation in excess of 10 percent from July 1, 2009 to June 4, 2012 for right sciatic nerve radiculopathy. 3. Entitlement to an evaluation in excess of 20 percent from June 5, 2012 for right sciatic nerve radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active duty with the United States Navy from May 1960 to March 1964, and from September 1964 to October 1972. He also had service as a member of the Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied a rating in excess of 10 percent for degenerative disk disease of the lumbar spine. The case is currently under the jurisdiction of the Denver, Colorado, RO. The Veteran testified before the undersigned Veterans Law Judge at a May 2007 hearing at the RO. A transcript of the hearing is of record. In an August 2007 decision, the Board remanded the issue for further development. In a December 2009 decision the Board denied entitlement to a rating in excess of 10 percent for degenerative disk disease of L5-S1. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court or CAVC) which, in a July 2011 Memorandum Decision, vacated the Board's decision and remanded the rating issue for further consideration. In a May 2012 decision, the Board adjudicated the evaluation of the degenerative disc disease of the L5-S1discs, and granted a 20 percent rating for the period prior to January 31, 2007; denied a rating in excess of 10 percent for the period from January 31, 2007 to June 30, 2009; and remanded the issue of entitlement to a rating in excess of 10 percent from July 1, 2009. In a May 2012 rating decision, the RO put into effect the May 2012 Board decision by granting a 20 percent rating effective July 16, 2002, the date of the Veteran's claim for an increased rating. In a subsequent rating decision in November 2012, the RO determined that the May 2012 rating decision had erred in incorrectly implementing the Board's earlier decision in May 2012 as to the Board's rating determination for the period from July 1, 2009. In an attempt to correct the May 2012 error, the RO reduced the evaluation from 20 to 10 percent effective July 1, 2009. Although the November 2012 rating decision, in part, resulted in a 20 percent rating from January 31, 2007 to June 30, 2009, which does not accurately implement the May 2012 Board decision for that period, the remaining issue currently on appeal is correct. FINDINGS OF FACT 1. From July 1, 2009, the Veteran's degenerative disk disease of the L5-S1 discs has 80 degrees of forward flexion with painful motion productive of at most, 60 degrees of forward motion; and is not productive of incapacitating episodes, or favorable ankylosis of the thoracolumbar spine, or associated objective neurologic abnormalities other than right sciatic nerve radiculopathy. 2. From July 1, 2009 to June 4, 2012 the Veteran's right sciatic nerve radiculopathy is not productive of moderate incomplete paralysis of the sciatic nerve, or more severe symptoms. 3. From June 5, 2012 the Veteran's right sciatic nerve radiculopathy is not productive of severe incomplete paralysis of the sciatic nerve, or more severe symptoms. 4. The rating schedule for evaluation of lumbar spine disability is adequate for application to the Veteran's claims. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for degenerative disk disease of the L5-S1 discs from July 1, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for a rating in excess of 10 percent for right sciatic nerve radiculopathy from July 1, 2009 to June 4, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for a rating in excess of 20 percent for right sciatic nerve radiculopathy, from June 5, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A number of letters dated between July 2002 and May 2012 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO informed the Veteran of the specific criteria to substantiate his claim for an increased rating. The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service treatment records and VA and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in July 2009 and June 2012. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable Law for Evaluation of Disabilities Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). If the criteria for a compensable rating under a diagnostic code are not met, then a noncompensable rating is awarded. 38 C.F.R. § 4.31 (2012). 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report complaints regarding symptoms capable of lay observation. 38 C.F.R. § 3.159(a)(2) (2012). However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. If limitation of motion is absent, and there is X-ray evidence of degenerative arthritis involvement of 2 or more major joints or 2 or more minor joint groups, and there are occasional incapacitating exacerbations, then a 20 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5003. During the pendency of the Veteran's claim on appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2002), including the criteria for rating disabilities of the spine. Effective September 23, 2002, VA revised the criteria for rating intervertebral disc syndrome. 67 Fed. Reg. 54,345 (Aug. 22, 2002). Effective September 26, 2003, VA revised the criteria for rating general diseases and injuries of the spine. 68 Fed. Reg. 51,454 (Aug. 27, 2003). At that time, VA also reiterated the changes to Diagnostic Code 5293 (now classified as Diagnostic Code 5243) for intervertebral disc syndrome. Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria to determine which is more favorable to the claimant. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the liberalizing change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, as neither the period for consideration, beginning July 1, 2009, nor the evidence applicable for review is prior or proximate to the September 26, 2003 effective date of the change, only the revised criteria are applicable. Under criteria that is in effect from September 26, 2003, disabilities of the spine are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) 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. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2011). VA's Rating Schedule provides a single set of criteria for rating conditions of the spine, no matter which spine-related diagnostic code applies. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for 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 is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Id. Unfavorable ankylosis of the entire spine warrants a 100 percent evaluation. Id. The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 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. (See also 38 C.F.R. § 4.71a, Plate V). Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, in the case of thoracolumbar spine disability, an unfavorable ankylosis is a condition in which 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. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode 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. If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Facts VA examinations of the thoracolumbar spine were conducted in July 2009 and June 2012. The July 2009 VA examination report shows that the Veteran reported complaints regarding his low back including that: lying on his back caused muscle spasm; pain radiated to the right hip and his right foot; he had tingling and intermittent paresthesia sensation of the right leg. He had no sciatica of either leg. He had no incapacitating episodes. He used a cane and functionally he could not do yard work. On examination the Veteran had normal posture, a well-healed surgical scar over the lumbar spine midline, which was not tender. There was no vertebral tenderness or paraspinal muscle spasm. On range of motion study the Veteran was able to flex 80 degrees, which was limited by pain; extend 20 degrees, which was limited by stiffness; side bend right and left to 30 degrees, bilaterally; and rotate right and left to 30 degrees, bilaterally. With three repetitions of flexion there was some painful motion in flexion from 50 to 80 degrees, but there was no further limitation of motion due to weakness, incoordination, fatigue or pain, because the pain was mild. Straight leg raise test and Lasegue's were negative supine to 60 degrees. Neurologic examination of the lower extremities revealed no muscle weakness. The Veteran was able to rise onto his heels and toes without difficulty. Deep tendon reflexes were 2+ at the knees, bilaterally; and 1+ at the right ankle due to radiculopathy, and 2+ at the left ankle. The report noted that lumbosacral spine X-rays from 2002 showed spondylolysis at L5, degenerative spondylosis with calcified L5-S1 discs, and degenerative spurs at L2, L5, and S1. The examiner's assessment was degenerative disk and joint disease lumbar spine L5-S1 with abnormal examination and X-ray, with mild right S1 radiculopathy without weakness. There was no evidence of sciatica or incapacitating episodes. There was painful motion on repeat movement but negative DeLuca criteria or additional limitation of motion. The examiner opined, that based on the Veteran's account, he had not had any incapacitating episodes in the past year. The examiner noted that the Veteran continued to work full time and had not missed work due to incapacitating episodes related to his lumbar spine in the last year. The report of the most recent VA examination of the Veteran's low back, in June 2012, shows that the Veteran reported that his back symptoms were worse since his last VA examination. He reported that he fell in February and exacerbated his back condition. As a result he was currently in therapy, which was helping. He was taking pain medication that brought the pain down from 6/10 to 2-4/10. He reported he had constant pain, with flare-ups impacting the function of his thoracolumbar spine. He could stand or walk for 30 minutes, stand for 15 minutes. He was unable to do yard work. On examination the Veteran had no localized tenderness or pain to palpation of the thoracolumbar spine area and no guarding or muscle spasm of the thoracolumbar spine. On range of motion study the Veteran was able to flex 80 degrees, with no objective evidence of painful motion; extend 15 degrees, with objective evidence of painful motion beginning at 5 degrees; right lateral flexion to 20 degrees, with objective evidence of painful motion beginning at 20 degrees (the Veteran did not attempt left lateral flexion on instruction of physical therapy provider); and rotate to 20 degrees, bilaterally, with objective evidence of painful motion beginning at 20 degrees. After three repetitions, flexion ended at 80 degrees, extension ended at 15 degrees; lateral flexion on the right ended at 20 degrees; lateral flexion on the left ended at 20 degrees and lateral rotation ended at 20 degrees, bilaterally. The examiner found that the Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive use testing; and that the Veteran had functional loss or impairment after repetitive use, due to contributing factors of having less movement than normal, pain on movement, and interference with sitting, standing or weight bearing. Muscle strength for lower extremity muscle groups and joint motions tested were all found to be of normal strength, and the Veteran had no muscle atrophy. Deep tendon reflexes 1+ for the right knee and both ankles, and zero for the left knee. Sensory examination results were normal for both lower extremities' parts tested except for the right lower leg/ankle (L4/L5/S1) and right foot/toes (L5), which were decreased in sensation. Straight leg raising test results were positive on the right and negative on the left. The examiner found that the Veteran did have radicular symptoms involving the right lower extremity consisting of moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness, and cramping. The examiner found that the radiculopathy was moderate and involved L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on the right side. The examiner found that the Veteran did not have any other neurologic abnormalities or findings (such as bowel or bladder problems or pathologic reflexes) related to the thoracolumbar spine condition, other than the radiculopathy on the right. The examiner found that the Veteran had intervertebral disc syndrome of the thoracolumbar spine but did not have any incapacitating episodes over the past 12 months due to this. The Veteran occasionally used a cane or walker for locomotion. The examiner opined that the thoracolumbar spine condition did not result in functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Veteran did not have associated scars that were painful or unstable, or of a total area of greater than 39 square centimeters (six square inches). Imaging studies of the thoracolumbar spine showed arthritis, but no vertebral fracture or other significant findings. The examiner opined that the Veteran's thoracolumbar spine condition did impact on his ability to work, noting that the Veteran quit working as a full-time pipeline inspector, which required walking, due to back pain. The examiner opined that the Veteran would not be able to do a job with significant lifting over five to ten pounds, or standing or walking; but he could do sedentary jobs with his ability to move around, and no cognitive tasks due to medication effects of sedation. The examiner diagnosed lumbar degenerative disc disease and lumbar degenerative joint disease. Analysis Degenerative Disc Disease Rating Based on Limitation of Motion VA examinations conducted during the period since July 1, 2009 showed that the Veteran's low back disability was limited to 80 degrees of forward flexion with associated low back pain. With repetitions, the Veteran had painful motion in flexion from 50 degrees. The evidence also shows that the Veteran has credibly stated that lying on his back causes muscle spasm and radiation of symptoms to the right lower extremity. The July 2009 VA examination report shows that past lumbosacral spine X-rays showed significant orthopedic symptomatology of spondylolysis at L5, degenerative spondylosis with calcified L5-S1 discs, and degenerative spurs at L2, L5, and S1. Based on the foregoing, on the basis of limitation of motion, including consideration of factors under Deluca, the Veteran's low back disability warrants a 20 percent rating. However, a higher rating is not warranted on the basis of limitation of motion. To warrant a disability higher than 20 percent on the basis of range of motion, the evidence must show that the Veteran's low back disability is productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Neither of the VA examination reports or other clinical records since July 1, 2009 contain findings productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less; or of favorable ankylosis of the entire thoracolumbar spine, even with consideration of pain, weakness and other symptoms described in DeLuca. A higher rating than 20 percent is not warranted based on range of motion criteria. Id. Degenerative Disc Disease Rating Based on Incapacitating Episodes There is no evidence of any incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Both VA examination reports since July 1, 2009 found that the Veteran had not had incapacitating episodes. That is, there is no evidence of any period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Thus a rating higher than 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. A 20 percent rating for degenerative disc disease of the L5-S1 discs is warranted on the basis of limitation of motion. The preponderance of the evidence is against the grant of a rating in excess of 20 percent; there is no doubt to be resolved; and a rating in excess of the increased 20 percent rating granted here is not warranted. Right Lower Extremity Peripheral (Sciatic) Neuropathy Service connection is in effect for right sciatic nerve radiculopathy, which is shown to be associated with the Veteran's service-connected low back disability. The right sciatic nerve radiculopathy is rated at a level of 10 percent from July 1, 2009 to June 4, 2012, and 20 percent from June 5, 2012, under peripheral nerves disease rating criteria of 38 U.S.C.A. § 4.124a, Diagnostic Code 8520. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 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. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. 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. 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. Diagnostic Code 8620 refers to neuritis of the sciatic nerve and Diagnostic Code 8720 refers to neuralgia of the sciatic nerve. Rating in Excess of 10 Percent From July 1, 2009 to June 4, 2012 The condition of the Veteran's right sciatic nerve radiculopathy prior to June 5, 2012 is reflected in findings of the July 2009 VA examination. Those findings do not reflect a condition productive of more than a mild degree of severity so as to warrant a rating higher than 10 percent. At the time of the July 2009 VA examination the lower extremities showed no muscle weakness, and deep tendon reflexes were 2+ at the knees, bilaterally, and the left ankle. Only the right ankle revealed a neurological deficit, of 1+, due to the radiculopathy. The examiner assessed that the Veteran's diagnosis of degenerative disk and joint disease lumbar spine L5-S1, included mild right S1 radiculopathy without weakness, and with no evidence of sciatica or incapacitating episodes. There is no evidence of any associated organic changes or of any involvement that was not wholly sensory, on which to find that the right sciatic nerve radiculopathy is productive of moderate or more severe level of disability; the evidence prior to June 5, 2012 does not warrant a disability in excess of 10 percent. Rating in Excess of 20 Percent From June 5, 2012 The condition of the Veteran's right sciatic nerve radiculopathy for the period from June 5, 2012 is reflected in findings of the June 2012 VA examination. Those findings do not reflect a condition productive of more than a moderate degree of severity so as to warrant a rating higher than 20 percent. At the June 2012 VA examination, deep tendon reflexes were 1+ for the right knee and both ankles, and zero for the left knee. Sensory examination results were normal for both lower extremities for parts tested except for the right lower leg/ankle (L4/L5/S1) and right foot/toes (L5), which were decreased in sensation. The examiner found that the Veteran's radicular symptoms involved just the right lower extremity, which he characterized as moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness, and cramping. The examiner concluded that the radiculopathy was moderate, involving L4/L5/S1/S2/S3 nerve roots (sciatic nerve) on the right side. Muscle strength for lower extremity muscle groups and joint motions tested were all found to be of normal strength, and there was no muscle atrophy. There is no evidence of any associated organic changes or of any involvement that was not wholly sensory. Given the consistent findings of moderate symptoms, and no finding of a moderately severe or worse degree of incomplete paralysis of the sciatic nerve, a higher rating than 20 percent is not warranted. Evaluation for Other Objective Neurological Abnormalities Other than the service-connected right sciatic nerve radiculopathy, no objective neurological abnormalities associated with the Veteran's lumbosacral strain with degenerative joint disease and degenerative disc disease are demonstrated. VA treatment records show complaints of pain, but other than the service-connected right sciatic nerve radiculopathy, there are no findings or diagnosis of neurological pathology that would allow a separate compensable evaluation. The Veteran has reported he has had no bowel or bladder changes. The preponderance of the evidence is against a finding that a rating in excess of 10 percent prior to June 5, 2012, and 20 percent from June 5, 2012, for right sciatic nerve radiculopathy is warranted; there is no doubt to be resolved; and increased ratings are not warranted. Conclusions An extraschedular rating may be provided where: (1) the schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; (2) the case presents 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 is 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). The Veteran has not described any unusual or exceptional features associated with his degenerative disk disease of the L5-S1 discs. The rating criteria are adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted. A claim for a total disability evaluation based on individual unemployability (TDIU) is part of an increased rating claim when such TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran is shown to be employed or employable, entitlement to a TDIU is not raised by the record and will not be further discussed. ORDER Entitlement to an evaluation of 20 percent from July 1, 2009 for degenerative disk disease of the L5-S1 discs, is granted. Entitlement to an evaluation in excess of 10 percent from July 1, 2009 to June 4, 2012 for right sciatic nerve radiculopathy, is denied. Entitlement to an evaluation in excess of 20 percent from June 5, 2012 for right sciatic nerve radiculopathy is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs