Citation Nr: 1314221 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 07-28 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating for lumbar spine degenerative disc disease higher than 10 percent prior to May 3, 2006, and higher than 20 percent thereafter. 2. Entitlement to an initial compensable rating for left lumbar radiculopathy prior to January 2, 2009, and a rating higher than 10 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to September 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for degenerative disc disease of the lumbar spine and assigned a 10 percent rating effective July 26, 2004. In July 2010 the Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at the RO. A transcript is of record. In May 2011, the Board remanded the claim for additional development. In a September 2011 rating decision, the RO granted an increased rating of 20 percent for degenerative disc disease of the lumbar spine, effective May 3, 2006, and granted service connection for left lumbar radiculopathy, with a 10 percent rating assigned, effective January 2, 2009. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claims for higher initial ratings for the Veteran's lumbar spine and radiculopathy disability remain before the Board. The September 2011 decision granted service connection for a bowel condition associated with left lumbar radiculopathy, with a 10 percent rating assigned, effective January 2, 2009. The Veteran was notified of this decision and did not perfect an appeal. The appeal was again remanded by the Board in February 2012, and has been returned for further appellate consideration. FINDINGS OF FACT 1. Prior to May 3, 2006, the Veteran's lumbar spine degenerative disc disease was manifested by flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, and combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees without objective findings of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis of the thoracolumbar spine, or incapacitating episodes due to disc disease at least two weeks but less than four weeks in the past twelve months. 2. Since May 3, 2006, the Veteran's lumbar spine degenerative disc disease is manifested by flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees without evidence of ankylosis of the entire thoracolumbar spine or incapacitating episodes due to disc disease at least four weeks but less than six weeks in the past twelve months. 3. Beginning February 2, 2005, but no earlier, the Veteran has had left lumbar radiculopathy approximating mild incomplete paralysis of the sciatic nerve. 4. Since February 2, 2005, the Veteran's radiculopathy of the left lower extremity more closely approximated mild incomplete paralysis of the sciatic nerve and there is no evidence of moderate, moderately-severe, or severe incomplete paralysis of the sciatic nerve or complete paralysis of the sciatic nerve. 5. There is no lumbar radiculopathy of the right lower extremity. CONCLUSIONS OF LAW 1. The criteria for an initial rating for lumbar spine degenerative disc disease higher than 10 percent prior to May 3, 2006, or higher than 20 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2012). 2. The criteria for an initial rating of 10 percent, but no higher, for left lumbar radiculopathy beginning February 2, 2005, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8620 (2012). 3. The criteria for an initial rating higher than 10 percent for left lumbar radiculopathy have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8620 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The award of service connection for lumbar spine degenerative disc disease and left lumbar radiculopathy represented a substantiation of the Veteran's original claim, and thus the filing of a notice of disagreement with any initial rating did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Therefore, any defect as to notice is not prejudicial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). In any event, the RO issued VCAA notice to the Veteran in March 2006 which complied with Dingess. The RO issued a VCAA notice to the Veteran in June 2011 which notified the Veteran of the information and evidence needed to substantiate a claim for an increased rating. The Veteran's service treatment records and VA medical treatment records have been obtained. Also, the Veteran was provided VA examinations in May 2006, May 2007, and July 2011. These examinations and accompanying reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who reviewed relevant medical records. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). Furthermore, the RO has substantially complied with the Board's May 2011 and February 2012 remand instructions. All pertinent VA treatment records identified by the Board have been obtained and associated with the claims file, and the Veteran was afforded a VA examination in July 2011, the report of which adequately addressed the Board's questions. Again, this examination report along with the other evidence of record provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). There is no indication in the record that any additional evidence relevant to the issues on appeal 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, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, at the July 2010 Board hearing, the Veteran was assisted at the hearing by an accredited representative from the Texas Veterans Commission. The AVLJ and the representative asked questions regarding the current severity and manifestations of the Veteran's disabilities, including their effects on his everyday life and occupation, and as to where the Veteran was currently and had in the past received treatment for his disabilities. The Veteran's testimony at the hearing focused on the elements necessary to substantiate the Veteran's claim for an increase and demonstrated, along with the representative's statements, that he had actual knowledge of the elements necessary to substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matters on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbar spine degenerative disc disease is rated under Diagnostic Code (DC) 5243 for intervertebral disc syndrome, and thus is rated according to either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective from September 26, 2003, the following evaluations are assignable with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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; or, vertebral body fracture with loss of 50 percent or more of the height; 20 percent 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 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; 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. 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. Plate V, 38 C.F.R. § 4.71a. 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. See C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician. The following evaluations are assignable for intervertebral disc syndrome based on incapacitating episodes: 10 percent where incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; 20 percent where incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; 40 percent where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and 60 percent where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. The Veteran's left lumbar radiculopathy is rated under DC 8560 for neuritis of the sciatic nerve. 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. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Under DC 8520, for paralysis of the sciatic nerve, the criterion for a 10 percent rating is mild incomplete paralysis of the sciatic nerve. The criterion for a 20 percent rating is moderate incomplete paralysis. The criterion for a 40 percent rating is moderately severe incomplete paralysis. The criterion for a 60 percent rating is severe incomplete paralysis with marked muscular atrophy. Where there is complete paralysis, when the foot dangles and drops, has no active movement possible of muscles below the knee, and with flexion of the knee is weakened or (very rarely) lost, an 80 percent rating is warranted. See 38 C.F.R. § 4.124a, DCs 8520, 8620 (2012). The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal 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 absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2012). See also DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995). The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, VA medical records beginning in March 2004 reflect treatment for low back pain. In March 2004, the Veteran came to the emergency room with complaints of low back pain that had started days before, and reported that he had had intermittent back pain in the past, but that now it felt different. There was noted to have been pain in the lower lumbar area radiating transversely in a bilateral fashion, with no numbness, weakness, or gait disturbance. There was occasional radiation of pain down the right leg. In June 2004, the Veteran reported low back pain on and off; he ambulated with a steady gait. On February 2, 2005, he reported having had low back pain for years, and that now a tingling went down his left leg. VA treatment records also reflect that, in June 2005, the Veteran was seen for complaints of trouble with his left leg of one to one and a half years duration. The Veteran complained of a dull ache in the back that swelled up and hurt when he was very active physically. On physical examination, his gait was basically very stable and he could walk on his tiptoes and heels. In the right lower extremity, he had mildly diminished sensation to pinprick on the lateral border of the right foot in the S1 dermatome, and in the left lower extremity he had mildly diminished sensation to pinprick on the inside of the L5 dermatome. Vibratory sense was intact in both lower extremities. X-ray showed mild lumbar spondylosis, with no evidence of any listhesis and good alignment and normal lumbar lordosis. There was mild spondylosis with slight protrusion of L5 disc and mild spondylosis of L4-5, but otherwise unremarkable. The assessment was lumbar spondylosis with degenerative disc disease. The examining physician stated that neurologic function was really pretty good, with no signs of acute nerve root compression. In January 2006, the Veteran again complained of lower back pain and intermittent left leg numbness. The report of a May 3, 2006, VA spine examination reflects that the Veteran reported that he had low back pain that came and went, but not on an everyday basis. Occasionally, breathing hurt his back, and his pains were usually average 4/10, and occasionally 10/10. Pain was usually aggravated by bending forward, putting his boots on, washing dishes, and occasionally sleep, although walking did not bother it. He had no radiation of pain, but occasionally his left leg went numb and was tingly. He also reported that, occasionally, his left leg gave out and he fell easily, and had fallen once about every two weeks due to left leg weakness. He reported working part time driving a truck, and that his problems did not interfere with his occupation. He further reported no additional limitation follow repetitive use or additional limitation during flare-up. Examination showed a normal curvature, non-tender on palpation, and he described most of his pain in the right of the lumbar spine in the musculature. He had forward flexion of 0 to 70 degrees with pains to the right at 70 degrees, with 20 degrees of loss due to pain. Extension was from 0 to 20 degrees, with pain to the right of the lumbar spine in the musculature at 20 degrees. Right and left lateral flexion was from 0 to 25 degrees without pain, and left and right lateral rotation was from 0 to 35 degrees with pain in the spine at 35 degrees. Active range of motion did not produce any weakness, fatigue, or incoordination. Straight leg raise on the left at 60 degrees produced mild pain. Straight leg raise on the right from zero to 80 degrees produced no pain. The Veteran had good pinprick sensation and good strength in both lower extremities, negative foot drop bilaterally, normal motor skills, and no muscle spasm or atrophy. Gait was normal. The diagnosis was lumbar disc disease with X-rays showing partial compression of the body to T11 with chronic low back pain. October 2006 VA treatment records reflect that the Veteran complained of lower back pain with radiation, and that his left leg got weak and gave out on occasion. He reported that his back pain was currently severe with numbness and tingling of the left leg, with aggravating factors of walking on an incline and bending over. On examination, gait was normal but he got up slowly and stiffly from his chair, station and coordination was normal, and he was able to walk on toes and heels. Trunk range of motion was decreased in all phases due to pain, with range of motion in the lower limbs essentially normal. There was no muscle atrophy, and light touch and pinprick examination was normal. The assessment was lumbar radiculopathy. October 2006 VA magnetic resonance imaging (MRI) revealed posterior disc herniation, eccentric on the left at L5-S1, but no evidence of neural impingement, and broad based disc bulge at L4-5, as well as a small posterior radial annular tear. The report of a May 2007 VA peripheral nerves examination reflects that the Veteran reported constant low back pain occasionally radiating into the right hip and right groin, with no pain to the left leg, but occasional left leg numbness occurring almost every day. He used no canes or assistive devices and had an occupation as truck driver, with rough rides or prolonged sitting aggravating his back, but no additional limitation on flare-up. His back pain interfered with daily activities, especially with walking, standing or sitting long periods of time, and he reported no incapacitating episodes over the past year. On examination, the lumbar spine showed normal curvature, was nontender on palpation, and had no deformities. He had forward flexion from 0 to 85 degrees with mild pain, 0 to 20 degrees of extension with mild pain, 0 to 25 degrees of left and right lateral flexion with mild pain, and 0 to 30 degrees or right and left lateral rotation without pain. The Veteran had good pinprick sensation, good strength in both lower extremities, and normal motor skills. There was negative foot droop bilaterally and normal gait, active range of motion did not produce any weakness, fatigue or incoordination. There was no additional loss of range of motion with repetitive movement. The diagnoses were posterior disc herniation eccentric left at L5-S1 without neural impingement, broad based disc bulge L4-5 and small posterior radial annular tear, and chronic low back pain, with no evidence of nerve damage to the lower extremities. VA treatment records reflect that in July 2007 examination showed full strength in the lower extremities and gait within normal limits. In November 2007, the Veteran complained of unchanged chronic back pain, with no weakness, numbness or tingling, but reported that sometimes his left leg gave out on him; on examination, he had 5/5 strength of the lower extremities. In January 2009, the Veteran reported low back pain with left leg numbness, tingling, and burning sensation, and constant stabbing and occasional burning back pain and flare-ups with extended time in one position, standing or sitting. It was noted that the Veteran was a truck driver and had never received injection therapies. On examination, left lower extremity strength was less than full, with diminished reflexes: hip flexion was 3+/4, quadriceps strength was 4/5, hamstring strength was 4/5, dorsiflexion was 4/5, plantar flexion was 4/5, and extensor hallucis longus strength was 4/5. Range of motion was within normal limits except bilateral knee extension. Light touch and pinprick revealed decreased sensation on left L4-5, vibration sense was intact, proprioception was affected in the left lower extremity but intact on the right, and there was Babinski upgoing on the right side. The Veteran's gait was antalgic on the left side, and he was not able to heel or toe walk on the left side. Right side straight leg raise was positive. The assessment was chronic low back pain with radicular symptoms of the left lower extremity, patellar reflex asymmetry, positive straight leg raise on the right, and weakness of the left lower extremity and decreased sensation in the L4-5 distribution. A later January 2009 VA treatment note reflects that the Veteran had low back tenderness, flexion to 30 degrees, and monofilament sensation normal. He stated that his left leg was always tingling and that he sometimes fell due to lack of feeling. A May 2009 VA physical therapy initial note reflects that the Veteran reported having problems getting hired due to his back problems, and buying his own truck and trying to drive, but sometimes having to stop for three or four days, and having difficulty getting to work. He reported that the right side of his back hurt but that the left leg stayed tingling or numb all the time. He reported that his pain at the time was 3 or 4/10 but that his back may lock up with pain just walking down the hall. He also reported that the position of leaning forward to wash dishes or pack a suit case made it worse, and that he loved to work but might need to apply for disability. He did not take any pain medication but aspirin due to his occupation of driving. December 2008 X-rays were noted to have revealed slight narrowing of the disc L5-S1 but otherwise normal examination. The Veteran was able to ambulate with no assistive device, but was slow to stand up and become erect. Standing posture was erect with mildly increased thoracic kyphosis. He had limited flexion, side bend, and rotation, with pain on flexion, and good extension. The diagnosis was chronic low back pain with narrowed disc L5-S1 with intermittent increases in pain. During his July 2010 Board hearing, the Veteran testified that his back disability affected his life as he was not able to stand very long to wash dishes, could not bend down to pick things up, could not push a lawn mower and could not ride a riding mower very long, but had to drive a truck because that was his job. He testified that sometimes while driving his truck he would have to pull over for two or three hours, and sometimes a day and a half, which harmed his chances of being hired again, and that he had been turned down for jobs because of his back. He stated that his leg gave out every once in a while when it had no feeling, and he would fall. He testified that when he was younger he was turned down for a job because he could not pass a physical due to his back. He also testified that he had been given pills for his pain but could not take them when diving at night. In a written statement dated in June 2011, the Veteran asserted that in the past he had applied for a job, but after taking a physical was told that his back failed, and from there he started working on lower paying jobs for himself, but that his work was limited as to what he could do. He further asserted that sometimes his back locked and he would not move from five to thirty seconds, that his left leg turned numb so that that had no feeling and if walking he fell, and that unless he laid flat on his back for long period of time he could not do anything. He further reported that he was now losing his truck, which was the only work he could get with his condition, and that sometimes he could not drive his truck. He asserted that when he reached down to pick something up he could not get up without help or crawling to get support to pull himself up. The report of a July 2011 VA examination reflects that the Veteran reported episodes in which his left leg went numb, involving the left thigh, leg and foot, causing him to fall about six times per year. He had no assisted devices in ambulation, and was noted to have been able to handle his activities of daily living without difficulty and drove a commercial vehicle on short runs. He reported that his back pain was incapacitating at least once a month and generally required him not to work for a week or so, and that he generally treated this with bed rest and gradual resolution of pain to the point that the was able to tolerate working again. His current lumbar pain was primarily on the right side, whereas most of the numbness and tingling was on the left. His pain increased with bending, attempting to lift, walking for more than two blocks, and standing in place for more than ten minutes. On examination, forward flexion was from 0 to 80 degrees passively with pain at the extreme, and forward flexion actively was 0 to 50 degrees with pain throughout range of motion. Extension was from 0 to 10 degrees with pain throughout range of motion, and left and right lateral flexion and rotation were from 0 to 10 degrees to both sides with pain throughout range of motion. Repetition of range of motion times three did not increase pain, fatigue, weakness, lack of endurance, or incoordination. There was no kyphosis, scoliosis, or reversed lordosis noted, and no ankylosis. There was tenderness over the right lower lumbar segment and paraspinal musculature, but no current muscle spasm associated with it. The Veteran's gait was guarded, but no antalgic gait was noted. Sensation was noted to be intact in the lower extremities bilaterally in all dermatomes, and muscle strength testing at the hip, knee, and ankle was within normal limits bilaterally at the time of the examination. The diagnoses were lumbar strain with secondary lumbar degenerative disc disease and degenerative joint disease, and intermittent left lumbar radiculopathy. It was noted that the Veteran was on no prescription medications for his back, and that in his occupation as a commercial driver he was unable to take narcotic preparations and therefore treated his back pain with aspirin and Tylenol. In November 2011, the Veteran again received VA treatment for his back pain. There was mild tenderness and no focal deficit on sensory on motor examination, and muscle strength was full in all limbs. February 2012 VA records reflect that tenderness was again noted at the right para spinal muscle area, and that the Veteran had ongoing chronic back pain, but that he was employed. Considering the pertinent evidence in light of the governing legal authority, the Board finds that: an initial disability rating higher than 10 percent from July 26, 2004 (the date of service connection) to May 2, 2006 for the lumbar spine degenerative disc disease is not warranted; an initial disability rating higher than 20 percent beginning May 3, 2006 for the lumbar spine degenerative disc disease is not warranted; and an initial disability rating of 10 percent, but no higher, is warranted for left lumbar radiculopathy beginning February 2, 2005. Prior to May 3, 2006, the record at no time reflects that the service-connected lumbar spine disability warrants a 20 percent rating or higher. During that period, the Veteran's disability was primarily manifested by intermittent low back pain and pain that radiated to the lower extremities, a dull ache in the back that swelled up and hurt when he was very active physically, with very stable gait and ability to walk on the tiptoes and heels. Even at the time of his May 3, 2006 VA examination the Veteran reported that he had low back pain that came and went, but not on an everyday basis, and that his problems did not interfere with his occupation. Also, examination at that time showed a normal curvature, non-tender on palpation, no muscle spasm or atrophy, and range of motion findings of 70 degrees of forward flexion with pains at 70 degrees, 20 degrees of extension, right and left lateral flexion of 25 degrees, and left and right lateral rotation of 35 degrees, with no weakness, fatigue, or incoordination. Even considering any additional functional loss due to pain or other such factors during this period, the evidence does not demonstrate disability so severe as to approximate forward flexion of the thoracolumbar spine limited to 60 degrees, the combined range of motion of the thoracolumbar spine limited to 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. Thus, the Board finds that the Veteran's lumbar spine disability most closely approximated the criteria for a 10 percent disability during this time and at no point during the time period from July 26, 2004 to May 2, 2006 has the Veteran's lumbar spine disability warranted a rating higher than 20 percent. Again, there are no objective findings of forward flexion of the thoracolumbar spine to less than 60 degrees, even when pain was considered or a combined range of motion of 120 degrees or less. There were no findings of muscle spasm or guarding severe enough to result in abnormal gait. A disability rating in excess of 10 percent for the lumbar spine disability for this time period is denied. Beginning May 3, 2006, the evidence shows that the Veteran's lumbar spine degenerative disc disease has been manifested by increased back pain with activities of daily living including bending over, walking on an incline, prolonged sitting or standing, and lifting. The competent and credible evidence shows that since May 3, 2006, the Veteran's lumbar spine degenerative disc disease has the been primarily manifested by back pain with occasional severe flare-ups and stiffness with getting up, with functional impairment in bending, walking, standing, pushing, lifting, riding long distances, sitting long periods of time, and other such physical activities, limitation of motion with pain, and guarded gait. See the July 2011 VA examination report, the Veteran's testimony at the hearing before the Board in July 2010, the May 2007 and May 2006 VA examination reports, and the October 2006 VA treatment record. However, a rating in excess of 20 percent is not warranted for the lumbar spine disability from May 3, 2006 because there are no objective findings of limitation of flexion of the lumbar spine to 30 degrees or less. While a single January 2009 record reflects that the Veteran's flexion was to 30 degrees, the weight of the evidence reflects that the Veteran's limitation of motion has not been this severe during the entire appeal period, including during every VA examination both prior to and subsequent to the January 2009 note. On both the May 2006 and May 2007 VA examination, the Veteran's flexion was well above 60 degrees, to 70 degrees in May 2006 with pain at that point and to 85 degrees with mild pain in May 2007. The July 2011 VA examination report notes forward flexion to 80 degrees passively with pain at the extreme, and forward flexion actively to 50 degrees with pain throughout range of motion, and no increased pain, fatigue, weakness, lack of endurance, or incoordination with repetition. The Veteran was noted to have had a normal gait in May 2006, October 2006, and May 2007. However, the Veteran was noted to have had an antalgic or guarded gait in January 2009 and July 2011 and such symptoms are contemplated in the criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran has not been noted to need any assistive devices in ambulating, and generally no deformity of the spine has been noted. While mildly increased thoracic kyphosis was noted in May 2009, there was no kyphosis, scoliosis, or reversed lordosis. Ankylosis was not found on July 2011 VA examination; moreover, mild kyphosis is also contemplated in the criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. Thus, considering the evidence as a whole, and even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors, the Board finds that since May 3, 2006, the lumbar spine disability picture more closely approximates the criteria for a 20 percent rating and an initial rating in excess of 20 percent is not warranted for the service-connected lumbar spine degenerative disc disease. The Board has also considered the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, but finds that no higher rating is warranted on this basis. The only time the Veteran asserted having had any incapacitating episodes was on July 2011 VA examination, at which time he reported that his back pain was incapacitating at least once a month and generally required him not to work for a week or so, and that he generally treated this with bed rest and gradual resolution of pain to the point that the was able to tolerate working again. The Veteran did not report the length of time or duration of the incapacitating episode other than to say it occurred "once a month." The Board finds that this statement while competent and credible, has limited probative value since the statement is vague and too general. Review of the record shows that the medical evidence including treatment records do not reflect any incapacitating episodes as defined in the rating criteria; the record reflects no periods of acute signs and symptoms due to his lumbar spine disability that have required bed rest and treatment prescribed by a physician. Thus, a disability rating in excess of 20 percent is not warranted for the lumbar spine disability from May 3, 2006. The Rating Schedule provides that any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note 1. In this case, a separate 10 percent rating is assigned for left lumbar radiculopathy from January 2, 2009 under Diagnostic Code 8520. The September 2011 decision granted service connection for a bowel condition associated with left lumbar radiculopathy, with a 10 percent rating assigned, effective January 2, 2009. The Veteran was notified of this decision and did not express disagreement or perfect an appeal. The Board has considered whether a higher rating is warranted for the left lumbar radiculopathy. Review of the record shows that on February 2, 2005, the Veteran began complaining of tingling down his left leg associated with his back disability. Subsequent treatment records reflect complaints and findings of similar symptomatology, including tingling, numbness and occasional weakness, later diagnosed as left lumbar radiculopathy. A June 2005 VA treatment record shows that the Veteran complained of left leg trouble and examination revealed mild diminished sensation to pinprick on the inside of the L5 dermatome of the left lower extremity. The May 2006 VA examination report indicates that straight leg raise was positive on the left at 60 degrees. An October 2006 VA treatment record notes that the Veteran reported having numbness and tingling in the left leg. He reported that he had radiating pain and weakness in his left leg and the leg gave out. The assessment was lumbar radiculopathy. Resolving reasonable doubt in the Veteran's favor, the Board finds that, beginning February 2, 2005, the record reflects competent and credible evidence of continuous left lumbar radiculopathy symptoms and there is medical evidence which relates these chronic symptoms to the diagnosis of left lumbar radiculopathy. The record does not reflect complaints or findings or other competent evidence of any compensable left leg lumbar radiculopathy prior to February 2, 2005. While the Veteran was treated for low back pain in March and June 2004, and while pain in the lower lumbar area radiating transversely in a bilateral fashion was noted, symptoms of numbness, weakness, or gait disturbance of the lower left extremity were not noted and no such symptomatology was reported by the Veteran prior to February 2, 2005. The Board finds that an initial rating in excess of 10 percent is not warranted for the left lumbar radiculopathy. The weight of the evidence does not establish more than mild impairment. The left lumbar radiculopathy symptoms have been characterized as mild and intermittent. While radiculopathy of the left leg productive of subjective tingling, numbness, and occasional pain and weakness, and intermittent objective findings of mild neurological impairment have been noted since February 2, 2005, at no time has the Veteran's left lumbar radiculopathy approximated "moderate" incomplete paralysis of the sciatic nerve. While the Veteran has reported subjective weakness and impairment of function of the left leg, the objective medical findings have predominantly shown the Veteran's radiculopathy to be sensory and intermittent. No sensory loss in the left leg was detected in May 2006, and only mild loss was detected in June 2005; light touch and pinprick were normal in October 2006 and May 2007. Monofilament sensation was normal in January 2009, in July 2011 sensation was noted to be intact in the lower extremities bilaterally in all dermatomes, and the Veteran had no focal deficit on sensory examination in November 2011. Also, strength and motor skills were normal in May 2006, there was good strength in both lower extremities and normal motor skills in May 2007. A July 2007 examination showed full strength in the lower extremities and gait within normal limits, and there was full strength of the lower extremities in November 2007. The Board acknowledges that in January 2009, left lower extremity strength was noted to have been less than full, with diminished reflexes, and hip flexion 3+/4, quadriceps strength 4/5, hamstring strength 4/5, dorsiflexion 4/5, plantar flexion 4/5, and extensor hallucis longus strength 4/5. At that time, weakness of the left lower extremity and reflex asymmetry were diagnosed, and while vibration testing was noted to have been intact, proprioception was noted to have been affected in the left but not right leg. Such findings at this time appear more severe than the findings during the numerous neurological, motor, and strength examinations, both prior and subsequent to January 2009, noted above. However, even considering the findings in January 2009, the Board finds that such symptoms as slightly diminished strength and proprioception, reflex, and sensation are consistent with mild incomplete paralysis of the sciatic nerve. On July 2011 VA examination, muscle strength testing at the hip, knee, and ankle was within normal limits, and in November 2011, muscle strength was full in all limbs. Muscle atrophy of the left lower extremity has not been detected. The Board also notes the Veteran's consistent reports given in May 2006, October 2006, November 2007, January 2009, and during his July 2010 Board hearing that occasionally his left leg became weak and caused him to fall. The July 2011 VA examination report reflects that the Veteran stated that such episodes occurred about six times per year. There is no medical evidence of record noting treatment related to any such fall due to left leg weakness. However, even assuming the credibility of the Veteran in this regard, given the totality of the evidence discussed above, the Board finds that even considering such reported intermittent left leg weakness causing falls approximately six times per year, the Veteran's left lumbar radiculopathy has more closely approximated mild, rather than moderate or greater, incomplete paralysis of the sciatic nerve or complete paralysis of the left sciatic nerve. Thus, given the record as a whole, the Board finds that since February 2, 2005, the Veteran's left lumbar radiculopathy has more closely approximated mild incomplete paralysis of the sciatic nerve, and the weight of the evidence is against a finding of moderate, moderately severe, or severe incomplete paralysis or complete paralysis of the sciatic nerve on the left. Therefore, a disability rating during that period of 10 percent, but no higher, is warranted. A separate neurological manifestation of the right lower extremity due to the lumbar spine disability has not been shown by the evidence of record. The weight of the evidence shows that there is no radiculopathy or sciatic neuropathy of the right lower extremity. While in June 2005, the right lower extremity was noted to have had mildly diminished sensation to pinprick on the lateral border of the right foot in the S1 dermatome, in May 2007 the Veteran reported occasional radiating pain to right leg and right groin, and Babinski upgoing on the right side was noted in January 2009, there have been no diagnoses of right lumbar radiculopathy or other objective findings of neurological impairment that might approximate incomplete paralysis of the sciatic nerve of the right lower extremity. In this regard, the right lower extremity has otherwise consistently been noted to have had full sensory ability, reflexes, motor skills, and strength. Upon VA examination in May 2006, straight leg raise testing on the right was negative. A January 2009 VA treatment record indicates that when the right lower extremity was contrasted with the Veteran's disabled left lower extremity, the right lower extremity had full sensory ability, reflexes, motor skills, and strength. Symptoms of radiating pain are contemplated under the 10 and 20 percent ratings under the General Rating Formula for rating spine disabilities. Therefore, given the totality of evidence, the Board finds that a separate compensable rating for a neurological disability of right lower extremity is not appropriate at any time during the time period of this appeal. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). While the Veteran has consistently been noted to have been employed throughout the appeals period as a truck driver, and on May 3, 2006, reported that his back problems did not interfere with his occupation, he has subsequently stated that his disabilities are aggravated with driving, prevented him from being able to take stronger pain medication, and prevented him from making long drives. He further asserted in May 2009 having problems getting hired due to his back problems, buying his own truck and trying to drive but sometimes having to stop for three or four days, having difficulty getting to work, and that he loved to work but may need to apply for disability. Also, in a July 2011 written statement, he asserted that, due to his disabilities, he was forced to work on lower paying jobs for himself, that his work was limited as to what he could do, that he was now losing his truck, which was the only work he could get with his condition, and that sometimes he could not drive his truck. During his July 2010 Board hearing, he testified that sometimes while driving his truck he would have to pull over for two or three hours, and sometimes a day and a half, which harmed his chances of being hired again, and that he had been turned down for jobs because of his back. The Board recognizes that the Veteran's disabilities have been productive of functional impairment. The assigned ratings for his lumbar spine and left lumbar radiculopathy disabilities reflect that his disabilities are productive of impairment in earning capacity. However, the record does not reflect that the average industrial impairment from either disability would be in excess of that contemplated by its assigned rating. The Veteran's lumbar spine and left lumbar radiculopathy disabilities have been primarily mmanifested by back pain with occasional severe flare-ups, stiffness with getting up, and limitation of flexion greater than 30 degrees but not greater than 60 degrees, with functional impairment in bending, walking, standing, pushing, lifting, riding long distances, sitting long periods of time, and other such physical activities, and tingling, numbness, and occasional pain and weakness in the left leg. However, such manifestations are reasonably contemplated by the schedular criteria for both 10 and 20 percent ratings under the General Rating Formula for Diseases and Injuries of the Spine and by the 10 percent rating under DC 8620 and the assigned schedular evaluations, therefore, are adequate. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria for spine disabilities contemplate limitation of motion of the spine and symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The schedular rating criteria, the General Rating Formula for Diseases and Injuries of the Spine and the formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, specifically provide for disability ratings based on limitation of motion (flexion and combined ranges of motion, including ankylosis), including due to pain and other orthopedic factors which are incorporated into the schedular rating criteria (see 38 C.F.R. §§ 4.21 , 4.40, 4.45, 4.59; DeLuca), other objective findings such as muscle spasm, tenderness, altered gait, abnormal spinal contour, and loss of height of vertebral body. The schedular rating criteria also provide for separate ratings for objective neurological manifestations. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. Finally, while the Veteran has asserted that his service-connected disabilities have interfered with his ability to pursue his occupation, and while in May 2009 he asserted that he "may need to apply for disability," there has been no assertion or evidence that the Veteran is unemployable due to his service-connected disabilities. Also, again, the record reflects that the Veteran has been employed as a truck driver during the appeals period. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, an initial rating of 10 percent from February 2, 2005, for left lumbar radiculopathy is warranted, and the appeal is granted to that extent. An initial rating for lumbar spine degenerative disc disease higher than 10 percent prior to May 3, 2006, and higher than 20 percent thereafter, is not warranted, and a rating higher than 10 percent for left lumbar radiculopathy is not warranted. The preponderance of the evidence is against the claims and the claims are denied to this extent. The Board has applied benefit-of-the doubt doctrine; to the extent that any higher ratings are denied, as the preponderance of the evidence is against assignment of any such higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER An initial rating for lumbar spine degenerative disc disease higher than 10 percent prior to May 3, 2006, and higher than 20 percent thereafter, is denied. An initial rating of 10 percent from February 2, 2005, for left lumbar radiculopathy is granted, subject to the applicable regulations concerning the payment of monetary benefits. A rating higher than 10 percent for left lumbar radiculopathy is denied. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs