Citation Nr: 1314992 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 11-26 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected mild recurrent right lower lumbar paraspinal muscle strain with lumbar facet arthropathy, L4-5, L5-S1, hereinafter lumbar spine disability; to include whether a separate rating for neurologic impairment, left lower extremity, associated with a lumbar spine disability, is warranted. 2. Entitlement to a disability rating in excess of 10 percent for service-connected radiculopathy, right lower extremity, associated with a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran has active service from April 1944 to March 1946. This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which increased the disability rating assigned to the Veteran's lumbar spine disability from noncompensable to 20 percent, effective June 25, 2009, the date of receipt of the claim for an increased disability rating. In November 2012, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the RO in Jackson, Mississippi. A transcript of the hearing has been associated with the claims file. At the time of the Veteran's October 2011 Substantive Appeal, he elected to be heard by the Board at his local RO. However, in a November 2012 statement, he requested that his Board hearing be cancelled; and in a March 2013 statement, he withdrew his request for a Board hearing. His September 2011 Board hearing election is thus withdrawn. See 38 C.F.R. § 20.702(e) (2012). By a March 2010 rating decision, the RO granted service connection for radiculopathy, right lower extremity, associated with a lumbar spine disability, effective June 25, 2009, the date of receipt of the claim for an increased disability rating. While the Veteran has not expressed his disagreement with such specifically, the claim is part and parcel of the lumbar spine increased rating claim, as the regulations require the rater of any spine disability to evaluate any associated objective neurologic abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. During the entire appellate period, the Veteran's lumbar spine disability is not productive of range of motion of the thoracolumbar spine limited to 30 degrees or less, favorable or unfavorable ankylosis of any spinal segment, or any incapacitating episodes of intervertebral disc syndrome (IVDS). 2. During the entire appellate period, since June 25, 2009, the Veteran's lumbar spine disability is productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 3. During the entire appellate period, the Veteran's radiculopathy, right lower extremity, is analogous to no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for a lumbar spine disability are not met during the entire appellate period. 38 U.S.C.A. §§ 1155, 5103, 5107, 5110(b)(2) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.400(o)(2), 4.2, 4.6, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2012). 2. The criteria for a separate 10 percent disability rating, but no higher, for neurologic impairment of the left lower extremity, associated with a lumbar spine disability, have been met during the entire appellate period, effective June 25, 2009. 38 U.S.C.A. §§ 1155, 5103, 5107, 5110(b)(2) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.400(o)(2), 4.2, 4.6, 4.7, 4.124a, DC 8520 (2012). 3. The criteria for a disability rating in excess of 10 percent for radiculopathy, right lower extremity, associated with a lumbar spine disability, are not met during the entire appellate period. 38 U.S.C.A. §§ 1155, 5103, 5107, 5110(b)(2) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.400(o)(2), 4.2, 4.6, 4.7, 4.40, 4.59, 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice informs the claimant of any information and evidence not in the record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA notice requirements apply to all five elements of a service connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim by the Agency of Original Jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Federal Circuit recently held that only "generic notice," and not "Veteran-specific" notice is required under 38 U.S.C.A. § 5103(a) in response to the "particular type of claim." See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With respect to a claim for an increased rating, such notice does not need to inform the claimant of the need to submit evidence concerning the effect of a service-connected disability on his or her "daily life" because only the average loss of earning capacity, and not impact on daily life, is subject to compensation under 38 U.S.C. § 1155. Accordingly, there is no requirement that VA must notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. Id. In this case, the Veteran was advised in a July 2009 letter, sent prior to the initial adjudication of his claim in November 2009, of the evidence and information necessary to substantiate his claim, and the responsibilities of the Veteran and VA in obtaining such evidence. The Veteran was specifically advised that the evidence must show that his disability had increased in severity, examples of types of lay or medical evidence that would substantiate such claim, and that he should provide any VA or private treatment records or provide sufficient information to allow VA to obtain such records. The Veteran was specifically advised of the evidence and information necessary to establish a disability rating and an effective date, in accordance with Dingess/Hartman, and he was specifically advised of the diagnostic code under which his disability was rated. Accordingly, the Board finds that VA has satisfied its duty to notify in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1), as well as Vazquez-Flores v. Shinseki and related decisions. With regard to the duty to assist, the Veteran's VA treatment records and his identified, authorized, and relevant private treatment records have been obtained and considered. In this regard, the Veteran, during his November 2012 DRO hearing, reported that he had been hospitalized after a fall the previous December and would file a VA Form 21-4142, Authorization and Consent to Release Information to VA, for such records. A November 2012 RO record indicates that the Veteran's representative, after the DRO hearing, reported that the Veteran refused to complete the authorization and stated that the treatment records would not be pertinent to the claim. Despite such, in a December 2012 letter, the RO requested that the Veteran complete an enclosed authorization for the records cited during the DRO hearing. To date, the Veteran has not responded. The Veteran was afforded VA examinations in July 2009, February 2010, and December 2012. The resulting medical evaluations are considered adequate for rating purposes as they are based on consideration of the Veteran's medical history and describe the relevant disability in sufficient detail to enable the Board to reach a fully informed decision. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran was afforded a hearing before a DRO in November 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the party who chairs a hearing fulfill two duties to comply with the above the regulation. These duties 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. While the DRO sought information as to any outstanding treatment records, she did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The Veteran offered testimony as to the problems he has had with his lumbar spine. Accordingly, the Veteran is not shown to be prejudiced on this basis, as he described his lumbar spine symptoms and treatment. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim, worsening lumbar spine symptoms. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran in accordance with the VCAA at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by the Board proceeding to the merits of his claim. Increased Disability Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. When it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition. 38 C.F.R. §§ 3.102, 4.3; see Mittleider v. West, 11 Vet. App. 181, 182 (1998). Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's lumbar spine disability was originally rated as noncompensably disabling. By the November 2009 rating decision on appeal, the disability rating was increased to 20 percent, effective June 25, 2009. Also, in March 2010, the RO granted service connection for radiculopathy, right lower extremity, associated with a lumbar spine disability, and assigned the same a 10 percent disability rating, effective June 25, 2009. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5242 for degenerative arthritis of the spine. 38 C.F.R. § 4.71a, DC 5242. Under the current regulations, all disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a total rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note 1 of the General Rating Formula for Diseases and Injuries of the Spine directs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id, Note 1. Note 2 of the General Rating Formula for Diseases and Injuries of the Spine provides that for VA compensation purposes, normal flexion of the thoracolumbar is zero to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id, Note 2. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id, Note 5. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, in pertinent part, a 20 percent disability 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 disability 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 maximum 60 percent disability 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest and treatment "prescribed by a physician." Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Ratings for paralysis of the sciatic nerve are set forth at 38 C.F.R. § 4.124a, DC 8520. A 10 percent disability rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent disability rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent disability rating is assigned for moderately severe incomplete paralysis. A 60 percent disability rating is assigned for severe incomplete paralysis, with marked muscular atrophy. An 80 percent disability rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, DC 8520. 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. VA's Rating Schedule does not define these words "mild," "moderate" and "severe." Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The Board now turns to the lay and medical evidence of record. In the present case, the appeal arises from a claim for an increased rating received on June 25, 2009. The relevant temporal focus for adjudicating the level of disability of an increased rating claim is from the time period one year before the claim was filed, in this case, June 25, 2008, until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this regard, the Board notes that there are private treatment records dated during the current appellate period detailing the Veteran's treament for his low back and lower extremity complaints. The findings and complaints recorded are remarkably similar and the Board need not describe each instance of treatment in detail. The Board will, however, discuss any private treatment records where a relevant detail is noted, such as symptoms attributed to a specific lower extremity, not already of record. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.) On VA examination of the lumbar spine in July 2009, the Veteran complained of constant, throbbing, sharp pain in his low back, radiating down the posterior aspect of the right leg to the heel. He reported weakness, numbness, and paraesthesia in the right lower leg. He reported urinary incontinence and erectile dysfunction secondary to prostate cancer treatment. He reported daily flare-ups, subsiding within two hours with rest and over-the-counter medication. He denied any physician-prescribed bed rest. He presented without a back brace. He reported that he was independent in all activities of daily living and was able to ambulate without the need for assistive devices. He asserted that he stopped working as a self-employed poultry farmer in July 2008, as his back pain slowed his ability to handle 20,000 eggs at his farm. Physical examination revealed tenderness and tightness on palpation of the right lower lumbar paraspinal muscles. Straight leg raising was negative, bilaterally. Forward flexion was to 90 degrees, with grimacing from 30 to 90 degrees and without additional limitation of motion after repetitive testing. There was normal strength, deep tendon reflexes, and muscle bulk in the lower extremities; and there was decreased sensation to pinprick in the entire right lower extremity. The Veteran's gait was normal and he was able to stand on his toes and heels. X-ray examination revealed degenerative changes and the Veteran was diagnosed with mild recurrent right lower lumbar paraspinal muscle strain and lumbar facet arthropathy, L45 and L5-S1. The examiner noted that while the Veteran could have increased low back pain and further limitations in his truncal range of motion affecting his functional capacity during a flare-up; such could not be estimated without resorting to speculation. Private treatment records dated in June 2009 indicate that the Veteran was involved in a motor vehicle accident one month prior, and since that time experienced radiating pain from his back to his left buttock and leg. Straight leg raising was positive on the left and negative on the right. He was diagnosed with posttraumatic lumbar radiculopathy, left. Additional private treatment in June 2009 revealed that the Veteran was diagnosed with, in part, radiculitis, left lower extremity. During private treatment in July 2009, the Veteran reported increased pain the right leg, with some numbness on the soles of the foot, and without weakness. There was very little pain on the left. Examination revealed mild lower lumbar paraspinous tenderness, with negative straight leg raising, and a non-antalgic gait. On VA examination of the peripheral nerves in February 2010, the Veteran reported that he had nearly constant pain in the low back that radiated into the buttocks, sometimes down the back of the right thigh to the ankle. He reported that he sometimes experienced numbness in the entire right leg. He complained of pain, without weakness; and reported that he could walk around the room several times before the pain caused him to have to sit down. He reported that he could continue walking after an unspecified period of rest. He again reported urinary incontinence after prostate surgery. He reported that he used over-the-counter medication for pain. On physical examination, he presented with a normal gait and a good heel and toe walk. He had trouble with tandem gait and had to hold the wall for balance. His motor strength was decreased on the right, and he had normal muscle bulk and tone. Sensation was moderately decreased in the knees and fingers. Pinprick sensation was decreased, bilaterally. He was areflexic, except for a trace biceps jerk. Straight leg raising was negative. The examiner reported that the Veteran had rather severe polyneuropathy with sensory loss in all extremities which was unrelated to the lumbar spine; however, he had mild incomplete sensory loss in the right L5 and left S1 distributions due to the lumbar spine. He had weakness in the right S1 and bilateral L4 innervated muscles likely due to a combination of polyneuropathy and root disease, and reported that he could not determine the relative contributions of each without resorting to speculation. At the time of his November 2012 DRO hearing, the Veteran reported that he had recently fallen on concrete and sought emergency treatment. He reported that his right leg was "always giving him problems." He asserted that he took over-the-counter medication so that he could sleep, and took more medication three times during the day. He reported that he could drive, and that his wife helped care for him. He reported that he had a check-cashing store and that the bank stopped taking the checks, so he had to quit in April 2012. He reported that he was not able to do any heavy work, but that handling money was not a problem. On VA examination in December 2012, the Veteran reported progressively worse low back pain. He rated his nightly pain as four on a ten-point pain scale, and noted that he took over-the-counter medication as needed for symptomatic relief. He reported that his pain previously radiated down both his legs and was associated with numbness and tingling; however, in 2002, he had nerve ablation and had no further symptoms in the left leg. He also reported chronic decreased sensation in the left leg following the ablation procedure. He noted that his nerve ablation procedure in April 2011 minimally improved his symptoms on the right. He reported that he ambulated with a cane and walker on occasion, that he was able to perform the activities of daily living without difficulty, and that he worked until April 2012. He asserted that no back condition had ever impacted his ability to work. He reported that flare-ups impacted the function of the lumbar spine, one or two times each week; with pain increased to a seven on a ten-point pain scale, occurring with prolonged driving, standing, bending over, lifting, or changes in the weather, and relieved with rest and over-the-counter medication. On physical examination, he demonstrated 45 degrees of forward flexion, with pain beginning at 45 degrees. He was able to perform repetitive motion testing and no additional limitation of motion was found. However, he did demonstrate additional functional impairment after repetitive testing, as he had less movement than normal, weakened movement and pain on movement. There was no local tenderness or pain to palpation, no guarding or muscle spasm, and no muscle atrophy. There was normal muscle strength testing, with the exception of only active movement against some resistance in the left knee extension. Reflex examination was normal, and sensory examination was normal, except for decreased sensation in the entire left leg. Straight leg raising was negative on the right and was not completed on the left, as the examiner noted that he was not able to perform such. The examiner noted that the Veteran had radicular pain or other signs and symptoms due to radiculopathy, and described such to include moderate constant pain, severe intermittent pain, paresthesias and/or dysesthesias, and numbness, all on the right. He noted that the nerve root involved was the sciatic nerve and determined that the severity of the radiculopathy present was mild in the right leg and that the left leg was not affected. The examiner reported that the Veteran did not have any other neurological symptoms. The examiner reported that the Veteran had IVDS, but there was no evidence of any incapacitating episodes in the past 12 months. The examiner reported that the Veteran's lumbar spine disability did not impact his ability to work. Upon consideration of the Veteran's medical and lay evidence, there is no indication that the Veteran demonstrated forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, as is required for a 40 percent disability rating. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. He demonstrated 90 degrees of flexion on VA examination in July 2009 and 45 degrees of flexion on VA examination in December 2012. While the examiner reported that the Veteran grimaced at 30 degrees on examination in July 2009, there is no indication, especially since the Veteran went on to demonstrate full and normal flexion, that his flexion was limited to 30 degrees. No examiner or treatment provider has reported, and the Veteran has not described any symptoms tantamount to, favorable ankylosis of the entire thoracolumbar spine. In this regard, there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine, as is required for 50 percent and 100 percent disability ratings. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Further, there is no indication that the Veteran has experienced any incapacitating episodes, much less episodes having a duration of at least four weeks but less than six weeks during the past 12 months, in any 12-month period during the appellate period, as is required for a 40 percent disability rating. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran denied physician-prescribed bed rest on VA examination in July 2009 and the examiner in December 2012 reported that there was no evidence of any incapacitating episodes in the past 12 months. Also, while there is evidence of functional loss due to pain of the lumbar spine that would otherwise warrant assigning a higher rating, such functional loss does not more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the thoracolumbar spine, i.e., the symptomatology required for the next higher disability rating, 40 percent. 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Mitchell, DeLuca, supra. The Veteran demonstrated 45 degrees of flexion on VA examination in December 2012, and such represents his most severely limited flexion. While he has reported flare-ups and the examiner reported that such resulted in less and weakened movement and pain, there is no evidence that such is tantamount to a loss of 15 additional degrees of flexion. It is significant that the Veteran drives and is independent in all activities of daily living. He has not reported severely limited range of motion. Again, there is no evidence of favorable ankylosis, or evidence that his less and weakened movement and pain results in symptoms that approximates any ankylosis. Thus, there is no basis for a disability rating higher than 20 percent in light of the factors set forth in 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board has also considered whether a separate rating for neurologic impairment, left lower extremity, associated with a lumbar spine disability, is warranted; and whether the Veteran's service-connected radiculopathy, right lower extremity, associated with a lumbar spine disability, is appropriately rated. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. Significantly, on VA examination in February 2010, the Veteran was diagnosed with mild incomplete sensory loss in the right L5 and left S1 distributions due to the lumbar spine. However, by the March 2010 rating decision that granted service connection for radiculopathy, right lower extremity, associated with a lumbar spine disability, the findings were recorded as mild incomplete sensory loss in the right L5 and S1 distributions due to the lumbar spine. Thus the findings attributed to the left extremity were incorrectly attributed to the right extremity. The Board notes that the VA examiner, in December 2012, did not find radiculopathy in the left lower extremity. However, it is significant that the examiner reported only active movement against some resistance on the left knee extension during muscle strength testing and decreased sensation in the entire left leg during sensory testing, and that he was unable to perform straight leg raising on the left. Further, while the Veteran reported that a 2002 procedure relieved his left leg symptoms, he also reported that he had chronic decreased sensation in the left leg following such procedure. Also, the Veteran was diagnosed with radiculitis, left lower extremity during the appellate period, in June 2009. Based on the foregoing, considering the conflicting evidence of neurological impairment, the Board resolves the benefit of the doubt in favor of the Veteran and finds that, during the entire appellate period, his lumbar spine disability is productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a, DC 8520. There is no evidence of greater impairment at any time during the entire appellate period. Specifically, the Veteran has only reported radiating pain and decreased sensation. He has not described any functional limitations related to the left lower extremity. As to whether the Veteran is entitled to a disability rating in excess of 10 percent for radiculopathy, right lower extremity, associated with a lumbar spine disability, the Board finds that he is not. There is no evidence of moderate incomplete paralysis, as is required for a 20 percent disability rating. 38 C.F.R. § 4.124a, DC 8520. There is no evidence of greater impairment at any time during the entire appellate period. While, the Veteran has reported radiating pain, weakness, numbness, decreased sensation, and reported that his right foot is "always giving him problems;" no examiner or treatment provider has described his symptoms as more than mild. He has not described any functional limitations related to the right lower extremity. On VA examination in February 2010, the examiner specifically diagnosed the Veteran with mild incomplete sensory loss in the right L5. While the examiner, in December 2012, reported that the Veteran had moderate constant pain, severe intermittent pain, paresthesias and/or dysesthesias, and numbness, he specifically rated the Veteran's radiculopathy of the right lower extremity as mild. The Board does not find that there are any other separately diagnosed neurologic abnormalities, including bowel or bladder impairment, shown to be caused by or part of the service-connected mechanical low back pain. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. On each instance of VA examination, he has attributed his urinary incontinence and erectile dysfunction to treatment for prostate cancer. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's lumbar spine disability. His disability is clearly productive of pain, with resultant functional and neurological impairment, to include decreased range of motion, weakened movement, tenderness, and radiculopathy; manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's lumbar spine disability and referral for consideration of extraschedular rating is not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU is not raised by the record. Specifically, as discussed above, the Veteran himself, during his November 2012 DRO hearing, reported that while he cannot participate in heavy labor, he is not precluded from employment by his lumbar spine disability. While on VA examination in June 2009, he reported that he had stop work as a poultry farmer due to his lumbar spine, he worked most recently in April 2012; and reported that he stopped employment, handling money, because the bank stopped taking his checks. A December 2012 VA examination report indicates that the Veteran reported that no back condition ever impacted his ability to work. Following an examination, the VA examiner similarly concluded that the Veteran's spine disability does not impact his ability to work. There is no evidence that the Veteran is unemployable. Therefore, the Board finds that no further consideration of a TDIU is warranted. Based on the medical and lay evidence discussed above and the applicable law, the Board finds that at no time during the pendency of the appeal has the Veteran been entitled to a disability rating higher than 20 percent for his lumbar spine disability, or a disability rating higher than 10 percent for his radicular, right lower extremity, associated with a lumbar spine disability. Further, while he is entitled to a separate 10 percent disability rating for his neurologic impairment of the left lower extremity, associated with a lumbar spine disability, during the entire appellate period, as of June 25, 2009; he is not entitled to a disability rating higher than 10 percent. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Hart, 21 Vet. App. at 505. ORDER A disability rating in excess of 20 percent for a service-connected lumbar spine disability is denied. A separate 10 percent disability rating, but no more, for neurologic impairment of the left lower extremity, associated with a lumbar spine disability, is granted, effective June 25, 2009. A disability rating in excess of 10 percent for service-connected radiculopathy, right lower extremity, associated with a lumbar spine disability, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs