Citation Nr: 1314246 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 03-08 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a low back strain with degenerative disc disease, prior to February 19, 2004. 2. Entitlement to a rating in excess of 40 percent for a low back strain with degenerative disc disease, beginning on February 19, 2004. 3. Entitlement to special monthly compensation (SMC). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1970 to November 1973 and from November 1976 to July 1984. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2002 rating decision issued by the Seattle, Washington RO which, in pertinent part, denied the Veteran's claim for an increased rating for a low back disability. A review of the Virtual VA claims processing system reveals VA treatment records dated through June 2012; such records were considered in the December 2012 supplemental statement of the case (SSOC). In March 2006, the Veteran testified at a personal hearing held at the RO before a Decision Review Officer (DRO). A hearing transcript has been associated with the claims file. In May 2007, the Veteran and his wife testified at a personal hearing held at the RO before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Following this hearing, in January 2008, the Board remanded the claim for an increased rating for a low back strain to the RO, via the Appeals Management Center (AMC), for further evidentiary development. A June 2008 rating decision issued by the RO partially granted the Veteran's claim for an increased rating and assigned a 40 percent rating, effective February 19, 2004. In addition, the RO granted service connection for a neurogenic bladder associated with diabetes as well as radiculopathy and diabetic neuropathy in each lower extremity. A separate rating was assigned for each extremity and the Veteran's neurogenic bladder was rated in conjunction with his service-connected diabetes mellitus. In June 2009, the Board again remanded the claims to the RO, via the AMC, for further evidentiary development. In January 2011, the Veteran was informed that the VLJ who had conducted his May 2007 hearing was no longer employed at the Board and was offered the opportunity for a new hearing. He expressed his desire for such a new hearing in February 2011; the Board remanded the instant claims in April 2011 to allow such a hearing to be scheduled. The Veteran testified before the undersigned Acting VLJ (AVLJ) at a July 2011 hearing at the RO. A hearing transcript has been associated with the claims file. In February 2012, the Board again remanded the instant claims to the RO, via the AMC, for further evidentiary development. The Board notes that, during the July 2011 hearing, the Veteran's representative raised an informal claim for service connection for an anxiety disorder as secondary to service-connected low back strain with degenerative disc disease. A review of the claims file indicates that the Veteran has been service-connected for an adjustment disorder with depressed mood since August 2005. After a review of the record, and a result of the Board's award of increased compensation below, the issue of entitlement to SMC benefits has been potentially raised as a component of the increased rating claim on appeal. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This issue has been listed as a separate "claim" on the title page for administrative purposes. In its January 2013 Informal Hearing Presentation (IHP), the Veteran's representative raised several informal claims on the Veteran's behalf. Specifically, the representative raised a claim of service connection for left carpal tunnel syndrome as well as claims for a separate rating for right and left lower extremity diabetic neuropathy and right and left upper extremity diabetic neuropathy. The representative claimed that there was clear and unmistakable error (CUE) in a June 2008 rating decision which assigned a 40 percent rating for left and right lower extremity diabetic neuropathy, effective February 19, 2004; the representative argued that both the rating and effective dates assigned in that rating decision constituted CUE. The representative also claimed that there was CUE in an August 2001 rating decision which granted service connection for hypertension but did not award a separate rating for the disability as well as in a December 2002 rating decision which denied the Veteran's claim for service connection for peptic ulcer disease. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to SMC is addressed in the REMAND below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the period prior to March 18, 2003, the Veteran's low back strain with degenerative disc disease manifested as subjective complaints of back pain with flexion measured to be to 90 degrees, at worst, with abnormal spinal contour and demonstrable deformity due to L1 compression fracture. 2. For the period beginning on March 18, 2003, the Veteran's orthopedic manifestation of thoracolumbar spine IVDS more closely approximated 30 degrees of forward flexion, or severe limitation of motion, when functional impairment on use was considered. 3. For the period beginning on March 18, 2003, the Veteran's right lower extremity radiculopathy as a manifestation of thoracolumbar spine IVDS more closely approximated "severe" incomplete paralysis of the sciatic nerve due to absent deep tendon reflexes, dorsiflexion and plantar flexion weakness with partial foot drop, an overall 4/5 motor strength, right calf atrophy, sensory deficit to proprioception, vibration and pin, and hyperesthesia on the anterior thighs. 4. For the period beginning on March 18, 2003, the Veteran's left lower extremity radiculopathy as a manifestation of thoracolumbar spine IVDS resulted in no more than moderately severe incomplete paralysis of the sciatic nerve due to absent deep tendon reflexes, an overall 4/5 motor strength, sensory deficit to proprioception, vibration and pin, and hyperesthesia on the anterior thighs. CONCLUSIONS OF LAW 1. For the time period prior to March 18, 2003, the criteria for a rating in excess of 10 percent for low back strain with degenerative disc disease have not been met, but a 10 percent rating is "added" due to vertebral fracture with demonstrable deformity. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.40, 4.45, 4.71a, 4.124a, 5285, 5292, 5293, 5295 (2002, 2003), 5235-5243 (2012). 2. Since March 18, 2003, the criteria for a 40 percent rating for the orthopedic manifestations of IVDS have been met, the criteria for a 60 percent rating for right lower extremity radiculopathy and a separate 40 percent rating for left lower extremity radiculopathy, as chronic neurologic manifestations of IVDS, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.40, 4.45, 4.71a, 4.124a, 5292, 5293, 5295 (2002, 2003), 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. In a claim for increase, the VCAA requires notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A July 2009 letter provided pertinent notice to the Veteran in connection with his claim for increased rating for a lower back disorder. That letter indicated what information and evidence was needed to substantiate his claim, which included describing the frequency and severity of his symptoms and submitting range of motion testing results. In addition, the letter detailed the information and evidence that must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided him with general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. After issuance of the above-described notice, the November 2010 SSOC reflects readjudication of the claims for a higher rating. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the Veteran has not alleged being prejudiced by any notice deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA outpatient treatment records, various private treatment records, Social Security disability claim records and the VA examination reports are located in the claims file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The record indicates that the Veteran participated in multiple VA spine examinations, the results of which have been included in the claims file for review. The most recent examination, dated November 2012, evaluated the orthopedic and neurologic aspects of his service-connected IVDS of the lumbar spine. This examination, which is supplemented with testimony and statements from the Veteran and his spouse as well as treatment records, is sufficient for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Since that examination, the Board finds no lay or medical evidence of increased severity of disability since the last VA examination to warrant an additional examination. The Veteran's representative argued in its January 2012 IHP that the VA examination referenced in the January 2013 SSOC was "inadequate on its face" as it did not contain functional motion measurements. The Board notes that the November 2012 Disability Benefits Questionnaire (DBQ) did contain range of motion measurements, including indicating at which point there was objective evidence of painful motion and the measurements following repetitive motion testing. The Board also notes, and as will be discussed below, that the Veteran will be awarded the maximum schedular rating for motion loss. As such, further consideration of functional impairment on use is not warranted. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that consideration of 38 C.F.R. §§ 4.40 and 4.45 is unnecessary where an appellant is in receipt of the maximum rating for limitation of motion). Additionally, in July 2011, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned AVLJ. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2011 hearing, the undersigned AVLJ enumerated the issue on appeal. Information was solicited regarding the severity of the Veteran's low back disorder and any neurologic impairment. This AVLJ inquired as to whether the Veteran believed his back disability had increased in severity during the appeal period given that a staged rating was in effect. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As the hearing discussion revealed that the Veteran was scheduled to undergo private treatment for his service-connected back disorder in the near future, the Veteran was asked to forward such information to the Board and the record was held open for 30 days to allow for such a submission. The Veteran was further advised of the types of findings which could be included in the examination report to help substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Furthermore, any perceived deficiency was cured with a Board remand and further development of the case. The Board also finds there has been substantial compliance with its January 2008, June 2009, April 2011 and February 2012 remand directives. The AMC provided the Veteran proper notice in July 2009, obtained the Veteran's updated VA treatment records and scheduled the Veteran for a VA examination, which he attended. In addition, the Veteran was scheduled for, and attended, a hearing before the undersigned AVLJ. Thus, the Board finds that the AMC substantially complied with the mandates of its remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). III. Higher Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. See generally 38 U.S.C.A. § 5110(b)(2). The Veteran's claim on appeal arises from an RO rating decision in December 2002. The criteria relating to spine disorders were amended in September 2002 and 2003, during the course of this appeal. See 67 Fed. Reg. 54,345 (Aug. 22, 2002); 68 Fed. Reg. 51,454-58 (Aug. 27, 2003); 69 Fed. Reg. 32,449 (June 10, 2004). The Board is required to consider the claims in light of the former and revised schedular criteria to determine whether an increased disability rating is warranted for the Veteran's lumbar spine disability. The General Counsel for VA has determined that the amended rating criteria, if favorable to the claim, can be applied only for the periods from and after the effective date of the regulatory change. See VAOPGCPREC 3-2000. However, the Veteran does get the benefit of having both the former and revised regulations considered for the periods after the change was made. See VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). That guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. See 38 U.S.C.A. § 5110(g). At the outset, the Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warranted a 10 percent rating if it was slight, a 20 percent rating if it was moderate or a 40 percent rating if it was severe. 38 C.F.R. § 4.71a, DC 5292 (2002). The former provisions of DC 5293 in effect before September 23, 2002 (which is now renumbered as DC 5243), provided criteria for evaluating IVDS. Under the former provisions of DC 5293, a 10 percent rating was warranted for mild IVDS. A 20 percent was warranted for moderate and recurring attacks of IVDS. A 40 percent rating was warranted for severe recurring attacks of IVDS while the maximum 60 percent rating was warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to site of diseased disc, little intermittent relief. See 38 C.F.R. § 4.71a (2002). Under DC 5295 in effect prior to September 26, 2003, a lumbosacral strain warranted a 10 percent rating with characteristic pain on motion while a 20 percent rating was warranted with muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position. A 40 percent rating was warranted for severe lumbosacral strain with listing of the whole spine to the opposite side; positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). Under the General Rating Formula for Rating Diseases and Injuries of the Spine, effective beginning on September 26, 2003, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: a 10 percent is warranted if forward flexion of the thoracolumbar spine was greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees or muscle spasms, guarding or localized tenderness that did not result in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees or that muscle spasms or guarding were 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 if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Under the interim revised criteria for IVDS, effective September 23, 2002, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating was warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months. A 60 percent rating was warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, 5293 (2003). IVDS was to be evaluated either on the total duration of incapacitating episodes over the past 12 months, or by combing under 38 C.F.R. § 4.25 (combined rating tables) with separate evaluations of its orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever resulted in a higher evaluation. 38 C.F.R. § 4.71a, 5293, Note (2) (2003). Under the Formula for Rating IVDS Based on Incapacitating Episodes, effective beginning on September 26, 2003, a 10 percent rating is warranted for incapacitating episodes having a total duration of one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, 5243 (2012). An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, 5235-5243, Note (1). 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. Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, 5235-5243, Note (2). The assignment of a particular DC is "completely dependent on the facts of a particular case" and involves consideration of such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Butts v. Brown, 5 Vet. App. 532, 538 (1993). In rating disability involving injury to the peripheral nerves and their residuals, attention is to be given to the site and character of injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. 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. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above 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. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. DC 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. 38 C.F.R. § 4.124a, DC 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. DC 8620 refers to neuritis of the sciatic nerve while DC 8720 refers to neuralgia of the sciatic nerve. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. A. Factual Background Historically, in an October 1985 rating decision, the RO awarded service connection and assigned an initial 10 percent rating for a chronic low back strain. Notably, in 1997, the Veteran was evaluated for bilateral leg pains with numbness in the toes. A December 1997 specialist opinion opined that these symptoms were more likely attributable to diabetic neuropathy, rather than radiculopathy, based upon electromyography (EMG) test results and findings from a magnetic resonance imaging (MRI) scan of the lumbar spine. A March 1999 decision by the Social Security Administration (SSA) found the Veteran to have become disabled due to diabetic peripheral neuropathy and diabetes mellitus effective September 1998. A September 2002 VA examination reflected the Veteran's complaints of relatively constant low back pain which tended to be a "relatively constant annoyance." He denied any lost time due to low back pain, and further denied any neurologic deficits. Physical examination revealed mild dorsal kyphosis but was negative for muscle spasms or muscle atrophy. Forward flexion was measured to be to 90 degrees, extension was to 34 degrees, "right tilt" was to 36 degrees, "left tilt" was to 40 degrees and bilateral rotation was "greater than 70" degrees, all without expressed "particular pain." There was a slight amount of tenderness on the right sciatic notch. The Veteran's gait and station were normal. He used a cane but was able to walk well without a cane in both tandem and parallel. He could only squat to 100 degrees. His motor strength was 5/5 in the lower extremities. An October 2002 lumbar X-ray revealed a L1 wedge compression fracture, L1-L2 disc degeneration and L5-S1 disc degeneration. In a September 2002 statement, the Veteran wrote that he suffered from daily low back pain which he treated every night with Ibuprofen, and sometimes during the day as well. He described being unable to stand, sit or lay down for any length of time without pain. In a statement received on March 18, 2003 statement, the Veteran described daily use of a cane due to bilateral leg weakness which buckled during exacerbations of disability. He reported that, at times, he required assistance of another to ambulate due to immobilizing discomfort and pain. In a December 2003 statement, the Veteran wrote that he experienced constant, daily pain in his lower back which restricted him from walking, sitting or lying down for any length of time. He used medication to treat his symptoms and had taken this medication prior to his VA examination. A February 19, 2004 VA examination reflected the Veteran's reports of constant low back pain that flared-up with pain and stiffness without provocation. During flare-ups, he was unable to make any movements and such flare-ups were sometimes relieved with medication. Physical examination found mild tenderness over the L2-3 region as well as mild paraspinal muscle spasms on both sides while at rest and which increased with exercise and movement. "Lumbosacral/thoracolumbar movements" were noted to be to 50 degrees with pain beginning at 40 degrees, extension was to 15 degrees with pain beginning at 10 degrees, bilateral lateral flexion was to 25 degrees with pain beginning at 20 degrees and bilateral rotation was to 30 degrees with pain beginning at 25 degrees. Repetitive motion was noted to reduce forward flexion by 20 degrees and extension by 10 degrees, so that he was unable to practically extend, while sideway movements were diminished to 15 degrees on each side and rotation was reduced by five degrees on each side. A March 2004 private lumbar X-ray revealed mild scoliosis with a left convex, degenerative disc changes and anterior wedging of L1. A May 2005 private lumbar X-ray revealed levoconvex rotoscoliosis, minor wedging of the upper lumbar vertebrae and mild to moderate degenerative disc disease in the upper lumbar levels. An October 2005 x-ray examination was additionally interpreted as showing a minor, less than 5 percent anterior wedging of the upper lumbar vertebrae which may be a component of physiologic wedging, as well as no instability demonstrated with flexion or extension maneuvers. In October 2005, the Veteran underwent EMG testing due to examination findings of weakness in dorsiflexion of the right foot. In a statement received in October 2005, the Veteran described chronic low back pain which had led to osteoarthritis of his lower vertebrae as well as his cervical spine. He further described experiencing "charlie horses" on a weekly, and sometimes daily, basis with spasm that caused him to lose balance and fall to his knees. A November 2005 private neurologist report reflected that the Veteran had concurrent diagnoses of diabetic peripheral neuropathy as well as evidence of lumbar disc herniation. The examiner expressed opinion that much of the Veteran's low back and bilateral leg pain probably reflected his lumbar disc herniation rather than peripheral neuropathy. Physical examination reflected that the Veteran had normal gait, station, balance and lower extremity strength with no fasciculation potentials, drifts or tremors. Reflex and sensory examinations were also normal. A February 13, 2006 private consultation report noted that the Veteran experienced fatigue and generalized weakness. He had decreased vibratory sensation of the toes, but normal gait and muscle strength. His deep tendon reflexes were 2+ and symmetrical. The examiner offered diagnoses of cervical and lumbar spondylosis, diabetic neuropathy, probable peripheral vascular disease and probable fibromyalgia. A March 10, 2006 private consultation report reflected that the Veteran demonstrated tenderness of most of the fibromyalgia tender points, but that examination was not strictly consistent with the criteria for diagnosing fibromyalgia. The Veteran was described as having advanced degenerative disease of the lumbar spine and a herniated disc at L5-S1 with a recent finding of right foot drop requiring evaluation by a neurologist. A March 2006 statement from the Veteran's spouse described the Veteran as demonstrating deterioration of strength and loss of muscle mass. The Veteran experienced difficulty with walking, and could not walk for extended periods due to back pain and muscle spasms. He had been unable to perform household duties, and had fallen down the stairs on several occasions. He had sleep difficulty due to pain, and was frustrated with being unable to perform even minor functions. The Veteran's March 2006 hearing testimony and written statements described the severity of his back pain and its impact on his daily functioning. He described "total" pain with 2 herniated discs. He was unable to complete housework without taking breaks, was unable to perform any yard work and was unable to drive. He described his lifestyle as "totally nil" with pain so severe that he was not paying attention. He described his back pain as ranging between 9-9.5/10 severity aggravated by stress and cold weather. His back was easily weakened with fatigue. He requested adaptive housing due to falling episodes caused by back give-way episodes. He felt that he was nearing the need for a wheelchair. An April 2006 private hospitalization record noted that the Veteran demonstrated decreased gross touch to the knees as well as vibratory and proprioception of the ankles and toes. There was 3/5 bilateral dorsiflexion and plantar flexion with normal tone and bulk. There was no pronator drift. Patellar reflexes were 1/4, Achilles reflexes were mute, and downgoing was equivocal. An April 2006 VA examination reflected the Veteran's continued complaints of constant pain, stiffness and limited motion in the lumbar spine. He described pain of 9/10 severity which could be elicited by physical activity. He described being able to function with medication, and having his pain relieved by rest and use of Tylenol. He denied periods of incapacitation or functional impairment. He also reported radiculitis of the legs. Bowel incontinence or periods of incapacitation were denied. On physical examination, the Veteran's gait was described as within normal limits with the feet showing no signs of abnormal weight bearing. He required a cane for ambulation due to a dropped right foot. Physical examination was negative for muscle spasms, tenderness or ankylosis. Flexion was measured to be to 80 degrees with pain beginning at 70 degrees, extension was to 25 degrees with pain beginning at 20 degrees, bilateral lateral flexion was to 25 degrees with pain beginning at 20 degrees and bilateral rotation was to 25 degrees with pain beginning at 20 degrees. Repetitive motion testing found that joint function was additionally limited by 10 degrees due to pain but not limited due to fatigue, weakness, lack of endurance or incoordination. The examiner found L4-5, L5-S1 nerve involvement with neuralgia, motor dysfunction with findings of decreased right foot dorsiflexion and plantar flexion, 4/5 motor power, and sensory dysfunction with findings of decreased sensation on the right lateral dorsal and lateral foot. The examiner diagnosed lumbar disc degenerative as well as lumbar-leg radiculitis, the latter resulting in the right foot drop and sensory impairment. A July 2006 VA clinic record reflected an assessment of peripheral/autonomic neuropathy resulting in frequent falls and difficulty with proprioception. A September 2006 private treatment note indicated that the Veteran's lumbar flexion was to 30 degrees and that his extension was to 20 degrees, both limited due to pain. Lateral bending was noted to be "normal" without specific ranges of motion provided. During a May 2007 hearing, the Veteran testified that he experienced muscle spasms and stiffness in his back. His range of motion was restricted due to pain and medications eased his symptoms for only short periods of time. He could not sit or stand for prolonged periods of time. He described his right leg as not acting properly due to a dead foot nerve. It had experienced several falling episodes and believed that he qualified for loss of limb. His spouse also described witnessing several falling episodes, and that the Veteran could not walk on uneven surfaces. She also helped to dress the Veteran. A May 2007 private examination report found that the Veteran demonstrated an elevated right ear, left shoulder and right pelvis posture. His lumbar range of motion (ROM) was decreased in flexion (knees) with increased back pain in bilateral flexion and extension. His deep tendon reflexes were 2+ on the right knee, absent for the left knee, 1+ for the right ankle and absent for the left ankle. He had positive straight leg raise test bilaterally. The lumbar paraspinals were hypertonic with a grade ++ tenderness. There was dysfunction and grade + tenderness at the right sacro-iliac joint. The examiner offered an initial working diagnosis of lumbar disc syndrome with sciatica complicated by degenerative disc disease and right sacro-iliac dysfunction. An April 2008 VA examination noted that the Veteran denied flare-ups of back pain or the use of an assistive device for his back. Bowel incontinence was denied. Physical examination noted that the Veteran held his spine in a relatively straight position with a loss of lordotic curve. Forward flexion was measured to be to 45 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 10 degrees, right rotation was to 15 degrees and left rotation was to 20 degrees, all with pain. While there was some "escalating pain" found on repetitive motion testing, fatigue, weakness, lack of endurance or additional limitation of motion were not found. On neurologic examination, the Veteran's deep tendon reflexes were absent throughout. There was diminished vibration and position sense in the lower extremities worse than the upper extremities. There was also a 1 cm. right calf atrophy. An accompanying X-ray found degenerative disc disease at multiple levels and moderate narrowing of the disc space at L5-S1. The examiner's diagnoses included diabetic peripheral neuropathy which was moderately severe in the lower extremities and mild in the upper extremities, and lumbosacral degenerative disease (DDD) with compression fractures of T12, L1 and L2 as well as severe right and left bilateral radiculopathy. In a rating decision dated June 2008, the RO increased the disability rating for low back strain with degenerative disc disease to 40 percent disabling effective February 19, 2004 under DC 5242. The RO also awarded separate 40 percent ratings for radiculopathy and diabetic neuropathy of the right and left lower extremities, effective February 19, 2004, under DC 8520. An October 2008 private lumbar Magnetic Resonance Imaging (MRI) scan contained multiple findings, including progressive degenerative disc disease at L5-S1 and L1-2. A November 2008 nerve conduction study was interpreted as showing findings consistent with significant diabetic peripheral neuropathy. A January 2009 private examination report included findings of absent Babinski's sign over both feet, and deep tendon reflexes which were equal and symmetric. Tests of proprioception, vibration and pin revealed a loss of peripheral sensation. There was weakness in dorsiflexion bilaterally with no abnormal movements, fasciculation potentials, drifts or tremors. In March 2009, the Veteran was hospitalized due to febrile illness and delirium. He was not to be uncoordinated in all movements, including walking with an ataxic gait. A November 2009 VA treatment note indicated that the Veteran's lumbar range of motion was "normal" but did not specify particular measurements. In June 2010, the Veteran was noted to have weak abdominal flexion questionably secondary to chronic back pain. A September 2010 VA examination reflects the Veteran's reports of constant back pain, which he rated as "7/10," and which increased to "9/10" due to using the stairs, dressing, changes in weather or picking up items. Flare-ups were reported to occur on a daily basis. He treated this pain with acupuncture and medications. Other symptoms were reported to include poor endurance and feelings of fatigue; difficulties with bladder control were reported but the examiner found that they were attributable to his neurogenic bladder related to diabetes mellitus. Incapacitating episodes were denied. Physical examination revealed tenderness to palpation in the midline and in the paraspinous muscles of the lower lumbar spine with increased muscle tone but no trigger points, muscle spasms, swelling or increased warmth. Forward flexion was measured to be to 50 degrees, extension was to 15 degrees, bilateral lateral flexion was to 25 degrees and bilateral rotation was to 20 degrees, all with pain. Repetitive motion testing found flexion to be limited to 40 degrees due to pain; incoordination and lack of endurance were not found. Straight leg raising was negative bilaterally. The Veteran demonstrated increased back pain with grimacing with standing from a seated position with some weakness demonstrated. He walked approximately 50 feet in the hall with an increase in low back pain. The Veteran had weakness on the right side with a mild limp. He was not asked to walk without a cane due to falling concerns. Neurologic examination demonstrated absent ankle and knee reflexes. There was diminished sensation of the lower extremities with some hyperesthesia on palpation of skin over the anterior thighs bilaterally. His lower extremity motor strength was 5/5 except for -5 strength of dorsiflexion and eversion of the right ankle with partial foot drop. There was a 1.5 cm. atrophy of the right calf. The examiner noted that the Veteran's pain caused his greatest functional impairment and that the impairment to his back was severe. During a July 2011 hearing, the Veteran testified that he was in constant back pain and discomfort and that he was unable to function due to this excruciating pain. He was unable to drive due to this pain and had caused two motor vehicle accidents in the past. After service, he treated his back pain with Aspirin. He believed that his back condition had progressed since 2002. He had constant bilateral leg pain which was worse on the left. His physician had attributed his left leg symptoms to ankylosing spondylitis A November 2012 VA DBQ reflected the Veteran's complaints of back pain that he rated as a "7/10" on average and that he was unable to lift his left leg to get his pants on. He reported urinary incontinence, which was attributable to his diabetes mellitus, and denied bowel incontinence. Physical examination revealed tenderness to palpation at L1-S1 over the paravertebral muscles as well as guarding or muscle spasms of the thoracolumbar spine which were severe enough to result in abnormal gait. Forward flexion was measured to be to 60 degrees, extension was to 15 degrees, bilateral lateral flexion was to 15 degrees, right lateral flexion was to 25 degrees and left lateral flexion was to 20 degrees, all with pain at the end of range of motion. Repetitive motion testing found forward flexion to be to 50 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, right lateral flexion to 25 degrees and left lateral flexion to 20 degrees. His functional limitations included weakened movement, excess fatigability, incoordination with impaired ability to execute skilled movements smoothly, pain on movement, instability of station, locomotion disturbance, and interference with standing, sitting and weight-bearing. On neurologic examination, the Veteran demonstrated 4/5 strength in great toe extension bilaterally, but otherwise 5/5 strength in bilateral hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflexes were absent in the knees and ankles. The Veteran had diminished sensation over the lower extremities as well as decreased vibratory sense bilaterally, which was worse on the left. There was a positive straight leg test on the left. He was described as having signs of radiculopathy which included mild right lower extremity intermittent pain and paresthesia/dyesthesia with severe numbness, and severe left lower extremity intermittent pain and numbness with mild paresthesia/dyesthesia. Overall, the VA examiner described mild right sciatic radiculopathy and severe left sciatic radiculopathy. The examiner found that the Veteran did suffer from IVDS and noted that his incapacitating episodes totaled at least two weeks but less than four weeks over the past year. B. Period Prior to March 18, 2003 For the time period prior to March 18, 2003, the Board finds that the Veteran did not meet the criteria for a rating greater than 10 percent for his service-connected low back strain with degenerative disc disease, but did meet the criteria to have a 10 percent rating "added" as a result of a compression fracture of L1 with demonstrable deformity. The VA examination report in September 2002 showed that flexion was to 90 degrees and lateral bending was to 36 degrees, both at worst. The Veteran's bilateral rotation was greater than 70 degrees. Although the Veteran generally complained of back pain, pain was not elicited on objective examination. Pain, without additional functional impairment, is insufficient to warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In addition, this lumbar range of motion did not approximate moderate limitation of motion as the Veteran retained significant range of motion and some range of motion measurements were found to be normal or nearly normal on objective examination. The Veteran did demonstrate evidence of degenerative disc disease with subjective radicular complaints in the lower extremities. However, the Veteran in September 2002 described a constantly annoying pain which did not result in lost time. The Veteran used a cane to ambulate, but his motor strength was clinically described as 5/5 in both extremities with no functional impairment of gait. Overall, the lay and medical evidence of record was most consistent with findings for mild IVDS. The September 2002 examination was also negative for ankylosis and the Veteran had retained range of motion. See 38 C.F.R. § 4.71a, General Rating Formula For Diseases and Injuries of the Spine, Note (5) (describing ankylosis as fixation of a spinal segment); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Additionally, the clinical evidence was negative for, and the Veteran had not alleged, the listing of the spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, the loss of lateral motion with osteo-arthritic changes, abnormal mobility on forced motion or severe limitation of motion. A higher rating based upon limitation of motion or ankylosis is therefore not warranted. 38 C.F.R. § 4.71a, 5292, 5295 (2002, 2003), 5235-5242 (2012). Nonetheless, an October 2002 VA x-ray examination demonstrated an L1 compression fracture. Per the criteria of DC 5285 in effect since the inception of the appeal, the Veteran is entitled to a 10 percent rating for demonstrable deformity of vertebral body which is "added" to the rating for limitation of motion. In so finding, the Board acknowledges the Veteran's report of daily low back pain which prevented him from prolonged standing, sitting or lying down. His complaints were credible and consistent with the evidentiary record. However, the Veteran did not describe aspects of disability, such as limitation of motion expressed in degrees, the frequency, duration and/or severity of IVDS attacks and/or the signs and symptoms of lumbosacral strain, to support the award of a higher rating under the variously applicable diagnostic codes. He also did not describe functional impairment beyond that contemplated by the two separate 10 percent ratings awarded. See 38 C.F.R. §§ 4.40 and 4.45. To the extent that it can be construed that he did describe aspects for a higher rating, the Board places greater the findings of the VA examiner as the examiner has greater expertise and training than the Veteran to evaluate thoracolumbar spine IVDS, and made more precise findings such as measurement of motion with a goniometer. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). C. Time period since March 18, 2003 On March 18, 2003, the Veteran provided VA a written statement which, in the opinion of the Board, described an increased severity of symptoms. In particular, the Veteran voiced for the first time bilateral leg weakness with buckling during exacerbations of disability. He also described episodes of immobilizing discomfort and pain. Thereafter, VA examination in February 2004 was significant for paraspinal muscle spasms while at rest and increased with use. The Veteran had decreased motion in all planes with a 50 degree of forward flexion reduced by another 20 degrees with repetitive testing. The Veteran was subsequently evaluated by a private examiner due to weakness in dorsiflexion in the right foot. This was eventually described as partial right foot drop. Thereafter, clarifying opinion was obtained that the Veteran's lower extremity symptoms of numbness and weakness could be partially attributable to a bilateral sciatic radiculopathy. He had subsequent findings of reduced or absent reflexes, decreased muscle strength and, eventually, right calf atrophy indicative of disuse. In the opinion of the Board, the Veteran's symptomatology more closely approximated 30 degrees of forward flexion, or severe limitation of motion under DC 5292, when functional impairment on use was considered. In this respect, the February 2004 VA examination measured forward flexion limited to 30 degrees after repetitive testing. With consideration of the extent of functional impairment pursuant to 38 C.F.R. § 4.40 and 4.45, the Board finds that the criteria for a 40 percent rating for the orthopedic manifestations of lumbar spine IVDS were met effective to March 18, 2003, the date that it is first factually ascertainable the Veteran's low back disability increased in severity since his September 2002 VA examination. Notably, the Veteran has reported being diagnosed with ankylosing spondylitis. However, the clinical findings to date do not demonstrate lumbar ankylosis. See 38 C.F.R. § 4.71a, General Formula for Rating Diseases and Injuries of the Spine, Note (5). Thus, a rating greater than 40 percent is not warranted for the orthopedic manifestations of IVDS for any time during the appeal period. A June 2008 RO rating decision awarded separate 40 percent ratings for right and left lower extremity radiculopathy effective February 19, 2004. Pursuant to Note (1) of the General Rating Formula For Diseases and Injuries of the Spine, the Board finds that it has jurisdiction to adjudicate the issue of both the initial rating assigned as well as the effective date of award to properly adjudicate the chronic orthopedic and neurologic manifestations of thoracolumbar spine IVDS. At the outset, the Board observes that the findings for both lower extremities have varied during the course of appeal. The Board must interpret and reconcile these inconsistencies in light of the whole recorded history. 38 C.F.R. § 4.2. The most significant clinical findings with respect to the right lower extremity include absent deep tendon reflexes (VA examinations dated April 2008 and November 2012), a 3/5 weakness in dorsiflexion and plantar flexion (private medical record dated April 2006), an overall 4/5 motor strength (VA examination dated April 2006), partial right foot drop (VA examination dated September 2010), a 1.5 cm. right calf atrophy (VA examination dated September 2010), sensory deficit to proprioception, vibration and pin (private examination dated January 2009), and hyperesthesia on the anterior thighs (VA examination dated September 2010). The Veteran currently requires use of a cane to assist in ambulation. Otherwise, the Veteran's right lower extremity neurologic deficit was described as severe in April 2008 and mild in November 2012. The most significant clinical findings with respect to the left lower extremity include absent deep tendon reflexes (VA examinations dated April 2008 and November 2012), a 3/5 weakness in dorsiflexion and plantar flexion (private medical record dated April 2006), an overall 4/5 motor strength (VA examination dated April 2006), sensory deficit to proprioception, vibration and pin (private examination dated January 2009), and hyperesthesia on the anterior thighs (VA examination dated September 2010). The Veteran currently requires use of a cane to assist in ambulation. Otherwise, the Veteran's left lower extremity neurologic deficit was described as severe in April 2008 and November 2012. The Board finds that the overall findings for the chronic neurologic IVDS manifestation of right lower extremity radiculopathy warrant a 60 percent rating for severe incomplete paralysis since March 18, 2003. In this respect, the Veteran demonstrates a 1.5 cm. calf atrophy. It is debatable whether this extent of atrophy meets, or more closely approximates, a description of "marked" muscular atrophy. See generally Webster's II New College Dictionary, p. 671 (1995) (defining "marked" as having a clearly defined character or being noticeable). The Veteran also demonstrates a partial right foot drop which does not appear to be contemplated in the criteria for "moderately severe" incomplete paralysis of the sciatic nerve. Overall, the Board finds that the Veteran's right lower extremity symptoms of absent deep tendon reflexes, dorsiflexion and plantar flexion weakness with partial foot drop, an overall 4/5 motor strength, right calf atrophy, sensory deficit to proprioception, vibration and pin and hyperesthesia on the anterior thighs more closely approximate the criteria for severe incomplete paralysis of the sciatic nerve. Thus, a 60 percent rating is warranted effective March 18, 2003, the date that it is first factually ascertainable the Veteran's leg symptoms demonstrated weakness and buckling since his September 2002 VA examination. However, the Board finds that the criteria for the maximum 80 percent rating for complete paralysis of the sciatic nerve have not been met. The Veteran and his spouse describe instances of immobilizing pain causing knee buckling and falling episodes which the Board finds is consistent with the medical evidence of record. The clinical findings describe partial right foot drop which is further clinically described as "decreased" and 3/5 in April 2006, -5 dorsiflexion strength in September 2010 and 5/5 strength in November 2012. There is no lay or clinical description of right foot "dangling," loss of active movement below the knee, loss of knee flexion, or significant weakness of knee flexion. Thus, the Veteran does not manifest the characteristics contemplated to support an 80 percent rating for complete paralysis of the sciatic nerve. With respect to the left lower extremity, VA examiners have clinically described the left lower extremity radiculopathy as "severe" in degree. This description, while relevant, must be viewed in the context of evaluating the relative impairment of motor function, trophic changes and sensory disturbances. 38 C.F.R. § 4.120. Here, there is no lay or medical evidence of left foot drop, left lower extremity atrophy, loss of active movement below the knee, loss of knee flexion, or significant weakness of knee flexion. At worse, the Veteran's overall motor function of the left lower extremity as been described as 4/5 strength with 3/5 strength in dorsiflexion and plantar flexion. In the opinion of the Board, the Veteran's overall left lower extremity radiculopathy symptoms do not meet, or more closely approximate, the criteria for severe incomplete paralysis of the nerve for any time during the appeal period. In so holding, the Board acknowledges the VA examiner description of "severe" left lower extremity radiculopathy as well as an inconsistency with providing a higher rating for right lower extremity radiculopathy when a November 2012 VA examiner described "mild" right lower extremity radiculopathy and "severe" left lower extremity radiculopathy. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue as all evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Here, the Board finds that, when evaluating the relative impairment of motor function, trophic changes and sensory disturbances, the clinical findings for each lower extremity describe a more severe functional impairment of the right lower extremity which outweighs any subjective evaluation offered by an examiner at any particular point in time. For example, a VA examiner in April 2008 described "severe" right radiculopathy which, if anything, has progressively worsened during the appeal period. Thus, the November 2012 VA examiner opinion of "mild" right radiculopathy, or any subjective assessment by an examiner, must be viewed in the context of the entire evidentiary record. However, the Board does find that the Veteran's March 18, 2003 written statement of leg weakness and buckling symptoms first factually demonstrates the onset of his left lower extremity symptoms supporting the 40 percent award. Thus, the 40 percent rating is granted effective March 18, 2003. Based upon the above, for the time period since March 18, 2003, the Board has found that the Veteran is entitled to a 40 percent rating for the orthopedic manifestations of IVDS, a 60 percent rating for right lower extremity radiculopathy, and a 40 percent rating for left lower extremity radiculopathy, both as chronic neurologic manifestations of IVDS. Given these findings, the Board need not consider application of the prior version of 5292-5295, or an alternate rating based upon the Formula for Rating IVDS Based on Incapacitating Episodes, as these provisions could not result in a more favorable rating for the Veteran. See generally 38 C.F.R. §§ 4.25, 4.26. In assessing the severity of the Veteran's service-connected low back strain with degenerative disc disease and IVDS, the Board has generally found the descriptions of disability by the Veteran and his spouse to be credible. In particular, the Veteran's March 18, 2003 written statement has been used as a basis to award increased compensation based upon his description of symptomatology which was later corroborated by clinical findings. The descriptions of exacerbations of low back symptoms with additional functional impairment have been relied upon, in part, to award the maximum 40 percent rating for limitation of motion by applying the principles of 38 C.F.R. §§ 4.40 and 4.45. Additionally, the descriptions of leg weakness and falling episodes, when combined with the clinical findings, have been a significant consideration in awarding a 60 percent rating for right lower extremity radiculopathy. However, to the extent the lay evidence can be construed as supporting higher rating still, the Board places greater probative weight to the clinical findings provided by private and medical examiners, as these individuals possess greater training and expertise to evaluate orthopedic and neurologic manifestations of thoracolumbar spine IVDS. There is no doubt of material fact to be resolved in the Veteran's favor. C. Extraschedular consideration Additionally, the Board finds that at no pertinent point has the Veteran's low back strain with degenerative disc disease been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the February 2009 SSOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. Here, the Board has assigned compensation based upon limitation of motion, neurologic impairment, and demonstrable deformity of a fractured vertebra. The rating criteria also allow for consideration of factors such as ankylosis, characteristics of chronic lumbosacral strain, abnormal spinal contour, and a more catch-all consideration for other symptoms leading to functional impairment on use (which has been applied in this case). The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). D. TDIU consideration The Court has held that a total disability rating based on individual unemployability (TDIU) is an element of all appeals of an initial rating of the underlying disability. Rice, 22 Vet. App. 447 (2009). A TDIU rating is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran was awarded a 100 percent schedular rating for diabetes with hypertension, bilateral upper extremity peripheral neuropathy and impotence in a January 1999 rating decision, effective February 7, 1992. At the July 2011 hearing, the Veteran's representative confirmed that the Veteran was not seeking TDIU. Further consideration of a TDIU during this appellate period is therefore not warranted. 38 C.F.R. § 4.16(a). E. SMC Consideration The Board observes that VA has a duty to maximize benefits in increased rating claims, to include consideration of SMC benefits when potentially raised by the record. Buie, 24 Vet. App. 242 (2010). As a result of the Board's decision, the record raises the potential application of 38 U.S.C.A. § 1114(k) (right foot drop) or 38 U.S.C.A. § 1114(s) (a service-connected disability rated as 100 percent with additional service-connected disability rated at 60 percent or more). At this time, the Board finds that it may be potentially prejudicial to address an issue which has not been developed and adjudicated by the RO, and for which the Veteran has had no notice of potential application. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER For the time period prior to March 18, 2003, the claim for a rating in excess of 10 percent for low back strain with degenerative disc disease is denied, but the award of an "added" 10 percent rating is granted due to vertebral fracture with demonstrable deformity. For the time period since March 18, 2003, a 40 percent rating for the orthopedic manifestations of IVDS is granted and a 60 percent rating for right lower extremity radiculopathy is granted, and a 40 percent for left lower extremity radiculopathy is granted. REMAND The record raises the potential application of 38 U.S.C.A. § 1114(k) (right foot drop) or 38 U.S.C.A. § 1114(s) (a service-connected disability rated as 100 percent with additional service-connected disability rated at 60 percent or more). This issue, which has not been addressed by the RO, is remanded for further development and consideration. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the claim of entitlement to SMC benefits under 38 U.S.C.A. § 1114(k) (right foot drop) or 38 U.S.C.A. § 1114(s) (a service-connected disability rated as 100 percent with additional service-connected disability rated at 60 percent or more). 2. After completion of any necessary notice, assistance (to include obtaining pertinent VA treatment report), and other development which may be deemed necessary, the RO should adjudicate the Veteran's claim of entitlement to SMC benefits. If any benefit on appeal cannot be granted effective to the date of claim, the RO should furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs