Citation Nr: 1315731 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-07 154A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain. 2. Entitlement to a compensable evaluation prior to October 23, 2012 and to an evaluation in excess of 20 percent beginning October 23, 2012 for radiculopathy of the left lower extremity associated with lumbosacral strain (radiculopathy of the left leg). 3. Entitlement to an effective date prior to March 30, 2007 for a 20 percent rating for lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 2004 to February 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal of January and February 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). A November 2012 rating decision granted service connection for radiculopathy of the right leg, which was assigned a 20 percent rating effective October 23, 2012; granted service connection for lumbar scar, status post discectomy, which was assigned a 0 percent rating effective May 6, 2009; and granted a 20 percent rating for radiculopathy of the left leg, effective October 23, 2012. As this 20 percent rating is only a partial grant of the benefit sought on appeal, this issue is still on appeal. In his April 2009 substantive appeal, the Veteran requested a personal hearing before a member of the Board sitting at the RO. He was notified by letter dated September 3, 2010 that a personal hearing was scheduled for him at the RO on September 20, 2010. According to a letter from the Veteran's representative received by VA on September 14, 2010, the Veteran was unable to attend the scheduled hearing and wished to withdraw his request for a personal hearing. See 38 C.F.R. § 20.702(e) (2012). FINDINGS OF FACT 1. Although flexion of the low back in May 2009 was to 20 degrees, the examiner noted that the Veteran's effort was suboptimal. 2. There is evidence of limitation of flexion of the low back to 30 degrees or fewer on VA examination on March 7, 2011. 3. There is no evidence of left leg radiculopathy prior to December 11, 2007. 4. The evidence more nearly approximates moderate radiculopathy of the left leg beginning December 11, 2007. 5. There is no more than moderate radiculopathy of the left leg beginning October 23, 2012. 6. A June 2006 rating decision granted an increased rating of 10 percent for lumbosacral strain effective February 26, 2005, the date following service discharge. 7. According to a statement received by VA from the Veteran on March 30, 2007, he was applying for increased compensation because his lower back condition "has gotten worse at this time." CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for lumbosacral strain prior to March 7, 2011 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for an evaluation of 40 percent, but no higher, for lumbosacral strain beginning on March 7, 2011 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5237 (2012). 3. The criteria for a compensable evaluation prior to December 11, 2007 for radiculopathy of the left leg are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8620 (2007). 4. The criteria for a 20 percent evaluation, but no higher, beginning December 11, 2007 for radiculopathy of the left leg are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8620 (2012). 5. The criteria for an evaluation in excess of 20 percent beginning October 23, 2012 for radiculopathy of the left leg are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8620 (2012). 6. The criteria for an effective date prior to March 30, 2007 for a 20 percent rating for lumbosacral strain have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in September 2007, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased rating. In accordance with the requirements of VCAA, the September 2007 letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private medical evidence was subsequently added to the claims file. The Veteran was also informed in the letter about effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Several VA examinations are of record, with the most recent examination dated in October 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate, as they provide the current symptomatology of the Veteran's lumbosacral strain and of his left leg radiculopathy. Accordingly, there is adequate medical evidence of record to make a determination on the issues on appeal and VA's duty to assist with respect to obtaining a VA examination in this case has been met. 38 C.F.R. § 3.159(c)(4). A current examination is not needed with respect to the earlier effective date issue on appeal. The Board concludes that all available evidence that is pertinent to the claims decided herein has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claims. The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Analysis of the Claims Increased Rating Claims Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), 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). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2012). Lumbosacral Strain An August 2005 rating decision granted service connection for lumbosacral strain and assigned a noncompensable rating effective February 26, 2005. A June 2006 rating decision granted a 10 percent rating for lumbosacral strain effective February 26, 2005. A claim for an increased rating for lumbosacral strain was received by VA in March 2007, and was denied by rating decision in January 2008. The Veteran timely appealed. 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45 (2012). The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Under the rating criteria, Diagnostic Code 5237 (lumbosacral or cervical strain) can be evaluated under the following 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 residuals of injury or disease: A 10 percent rating will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned 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 rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V) 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 is zero to 30 degrees, and left and right lateral rotation is 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. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, 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. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). The Veteran complained on VA evaluation in May 2006 of chronic, non-radiating low back pain, with pain medication providing partial relief. There was no history of tingling, numbness, muscle weakness, wasting, or muscle spasm. He worked full time as a technical assistant for Verizon. He had not had any incapacitating episodes in the prior year. Range of motion of the low back included flexion to 80 degrees, with pain beginning at 30 degrees; extension to 7 degrees, with pain beginning at 5 degrees; lateral flexion to 25 degrees to each side, with pain beginning at 20 degrees; and bilateral rotation to 25 degrees, with pain beginning at 20 degrees. Repetitive use caused increased pain, weakness, fatigue, and lack of endurance. Straight leg raising was to 90 degrees to each side. There was no objective sensory or motor loss. X-rays of the low back were considered normal. The diagnosis was chronic low back pain due to chronic lumbosacral strain. Treatment reports from Central Indiana Orthopedics reveal that the Veteran had full range of motion of the low back with mild pain in March 2007. A May 2007 MRI revealed left L5-S1 disc herniation. He underwent a left L5-S1 microlumbar discectomy in June 2007 due to left lumbar radiculopathy. The Veteran reported in August 2007 that, overall, he felt that his condition had improved. The Veteran complained on VA examination in December 2007 of low back pain with radiation. He had mild spasm of the paravertebral muscles. Range of motion included flexion to 65 degrees, extension to 5 degrees, and lateral bending and rotation to 25 degrees bilaterally. He had increased pain and decreased motion after repetitive testing. The diagnoses were chronic strain of the lumbosacral spine; degenerative disc, L5-S1, with large left paravertebral disc protrusion, status post discectomy of L5-S1; and chronic lumbosacral spine pain, degenerative disc disease and radiculitis on the left. According to an August 2008 statement from the veteran's wife, the Veteran had difficulty performing multiple daily activities and had difficulty holding down a job due to pain and discomfort. The Veteran complained on VA examination in October 2008 of constant low back pain with radiation down the left leg. There was no muscle weakness in the lower extremities; he had tenderness and spasm on the left. Straight leg raising was limited to 30 degree on the left. There was no sensory loss or muscle wasting. Deep tendon reflexes were 2+. The diagnoses were degenerative disc disease at L5-S1 with lumbar radiculopathy of the left lower extremity, status post microlumbar discectomy at L5-S1; and chronic lumbar strain. It was reported that the veteran's radiculopathy was severe. The Veteran complained on VA general medical evaluation in May 2009 of low back pain and numbness down both lower extremities. He reported flare-ups approximately every other day. He had not had an incapacitating episode in the previous year. He was taking pain medication. Range of motion of the low back included flexion to 20 degrees, extension to 5 degrees, and bilateral side bending and rotation to 10 degrees. The examiner noted that the Veteran's effort was suboptimal. There was no spasm or atrophy, and the Veteran was able to heel and toe walk without difficulty. Muscle strength was 5/5; straight leg raising was negative. The Veteran felt that he was unable to perform repetitive testing. The diagnosis was lumbar degenerative disc disease. The examiner did not see evidence consistent with lumbar radiculopathy involving either lower extremity. The examiner concluded that the Veteran would not be able to tolerate moderate to heavy lifting. On VA neurology examination in May 2009, there was no specific evidence of paralysis, neuritis, or neuralgia. The examiner was unable to comment on additional limitation of range of motion or loss of function due to pain, fatigue, weakness, or lack of endurance without resorting to mere speculation. According to an August 2009 Physical Residual Functional Capacity Assessment report for the Social Security Administration, which involved a primary diagnosis of back pain, the veteran could occasionally lift and/or carry 50 pounds, could frequently lift and/or carry 25 pounds, could stand and/or walk for a total of about 6 hours in an 8-hour day with normal breaks, could sit for a total of 6 hours in an 8-hour day with normal breaks, and was unlimited in his ability to push and/or pull. These findings were based on the May 2009 general VA medical evaluation. The Veteran complained on VA examination in March 2011 of severe weekly low back flare-ups. He was able to walk 1/4 of a mile. There was no spasm, atrophy, tenderness, weaknees, or incapacitating episodes. Range of motion included flexion to 9 degrees, extension to 20 degrees, lateral bending to 25 degrees to each side, and rotaiton to 30 degrees bilaterally. There was objective evidence of pain on motion. There was additional limitation on repetitive motion, with flexion to only 3 degrees and extension to 18 degrees. Reflexes were hyperactive; sensory and motor examinations were normal. The Veteran was later observed by the examiner putting on his shoes and socks with thoracolumbar flexion of about 40 degrees. X-rays of the lumbar spine were unremarkable except for a transitional lumbosacral body. The diagnosis was chronic lumbosacral strain, status post discectomy. It was noted that the disability affected his daily activities. The Veteran lived with his parents, who did all of the housework. VA treatment reports dated through October 2012 showed continued complaints of low back pain. It was reported on VA examination in October 2012, which was conducted by the same examiner who evaluated the Veteran in March 2011, that spinal range of motion included flexion to 30 degrees, with pain beginning at 20 degrees; extension to 10 degrees; lateral bending to 15 degrees on the right and 20 degrees on the left; and rotation to 20 degrees on the right and 15 degrees on the left. He was able to perform repetitive testing without loss. There was no muscle spasm. Strength was normal; sensation was decreased; reflexes were hyperactive; and straight leg raising was negative. He was noted to have constant pain, moderate, as well as moderate paresthesias and/or dysthesias. He did not have intervertebral disc syndrome. The Veteran was observed with spinal flexion to approximately 40 degrees when putting on his shoes back on following the examination. EMG testing in October 2012 revealed moderate bilateral L5 radiculopathy, worse on the right. There was no electrodiagnostic evidence of additional radiculopathies, polyneuropathy, or distal compressive peripheral nerve injuries. To warrant a rating in excess of 20 percent for lumbosacral strain, there would need to be evidence of forward flexion of the throacolumbar spine to 30 degrees or fewer or evidence of favorable ankylosis of the entire thoracolumbar spine. There is no evidence of favorable ankylosis, meaning fixation of a spinal segment in the neutral position, of the thoracolumbar spine. Although flexion of the low back was to 20 degree on VA examinations in May 2009, the veteran's effort was noted to be suboptimal, so an accurate determination of low back flexion was not provided. In fact, when examined in March 2009, there was no gait problem, no back spasm, no aterophy, and no radiculopathy. Because, however, there was no notation of a suboptimal effort when flexion of the low back was to only 9 degrees on examination on March 7, 2011; because flexion was to only 3 degrees after repetitive motion in March 2011; and because flexion was to only 30 degrees on examination in October 2012, with pain beginning at 20 degrees, an increased rating of 40 percent is warranted beginning March 7, 2011 under Diagnostic Code 5237. A rating in excess of 40 percent is not warranted for lumbosacral strain because there is no evidence of unfavorable ankylosis of the thoracolumbar spine. The Court has held that when evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss due to pain and weakness, excess fatigability, and incoordination causing additional disability beyond that reflected on range of motion measurements. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the schedular criteria do not subsume sections 4.40 and 4.45). The Board finds that an increased rating is not warranted under the DeLuca criteria. The Board has granted a 40 percent rating for lumbosacral strain beginning March 7, 2011, which is the maximum schedular rating provided in the absence of ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). A rating in excess of 20 percent is not warranted under DeLuca prior to March 7, 2011 because, despite complaints of pain at 30 degrees, flexion of the low back was to 80 degrees in May 2006; because low back range of motion was reported to be full in private treatment records dated in May 2007; because flexion of the low back was to 65 degrees in December 2007; and because the Veteran gave a suboptimal effort when examined in May 2009, at which time there was no evidence of a gait problem, muscle spasm, or atrophy. Radiculopathy of the Left Leg A February 2008 rating decision included radiculopathy to the left lower leg as part of the Veteran's service-connected low back disability, which was assigned a 20 percent rating. A November 2012 rating decision granted a separate 20 percent rating for radiculopathy of the left leg under Diagnostic Code 8620, effective October 23, 2012. The Veteran is currently rated for his peripheral neuropathy under Diagnostic Code 8620, which provides ratings for neuritis of the sciatic nerve. Incomplete paralysis of the sciatic nerve is rated under Diagnostic Code 8520, and neuralgia of the sciatic nerve is rated under Diagnostic Code 8720. Diagnostic Code 8620 provides that mild incomplete neuritis is rated 10 percent disabling; moderate incomplete neuritis is rated 20 percent disabling; moderately severe incomplete neuritis is rated 40 percent disabling; and severe incomplete neuritis, with marked muscular atrophy, is rated 60 percent disabling. Complete neuritis 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, is rated 80 percent disabling. 38 C.F.R. § 4.124a (2012). The term "incomplete paralysis," with this and other peripheral nerve injuries, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a (2012). 38 C.F.R. § 4.123 provides that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (2012). 38 C.F.R. § 4.124 provides that neuralgia, 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. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2012). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 (2012). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). The Veteran complained on VA evaluation in May 2006 of chronic, non-radiating low back pain, with pain medication providing partial relief. There was no history of tingling, numbness, muscle weakness, wasting, or muscle spasm. There was no objective sensory or motor loss. The diagnosis was chronic low back pain due to chronic lumbosacral strain. Treatment reports from Central Indiana Orthopedics reveal that the had full range of motion of the low back with mild pain in March 2007. A May 2007 MRI revealed left L5-S1 disc herniation. He underwent a left L5-S1 microlumbar discectomy in June 2007 due to left lumbar radiculopathy. The Veteran reported in August 2007 that, overall, he felt that his condition had improved. The Veteran complained on VA examination on December 11, 2007 of low back pain with radiation. He had mild spasm of the paravertebral muscles. The diagnoses included chronic lumbosacral spine pain, degenerative disc disease, and radiculitis on the left. According to an August 2008 statement from the veteran's wife, the Veteran had difficulty performing multiple daily activities and had difficulty holding down a job due to pain and discomfort. The Veteran complained on VA examination in October 2008 of constant low back pain with radiation down the left leg. There was no muscle weakness in the lower extremities; he had tenderness and spasm on the left. Straight leg raising was limited to 30 degree on the left due to severe pain in the low back radiating into the left lower extremity. There was no sensory loss, muscular weakness, or muscle wasting in the lower extremities. Superficial sensations of touch, pain and temperatura and deep sensations of vibration and proprioception are intact in both lower extremities. Deep tendon reflexes were 2+. Babinski's sign was negative bilaterally. The diagnoses were degenerative disc disease at L5-S1 with lumbar radiculopathy of the left lower extremity, status post microlumbar discectomy at L5-S1; and chronic lumbar strain. It was concluded that the Veteran had radiculopathy of the left lower extremity secondary to his degenerative disc disease at L5-S1 and that the radiculopathy was severe. The Veteran complained on VA evaluation in May 2009 of low back pain and numbness down both lower extremities. He reported flare-ups approximately every other day. He had not had an incapacitating episode in the previous year. He was taking pain medication. Muscle strength was 5/5; straight leg raising was negative. The diagnosis was lumbar degenerative disc disease. The examiner did not see evidence consistent with lumbar radiculopathy involving either lower extremity. The examiner concluded that the Veteran would not be able to tolerate moderate to heavy lifting. On VA neurology examination in May 2009, there was no specific evidence of paralysis, neuritis, or neuralgia. The examiner was unable to comment on additional limitation of range of motion or loss of function due to pain, fatigue, weakness, or lack of endurance without resorting to mere speculation. The Veteran complained on VA examination in March 2011 of severe weekly low back flare-ups. He was able to walk 1/4 of a mile. There was no spasm, atrophy, tenderness, weakness, or incapacitating episodes. Reflexes were hyperactive; sensory and motor examinations were normal. The diagnosis was chronic lumbosacral strain, status post discectomy. It was noted that the disability affected his daily activities. It was reported on VA examination on October 23, 2012 that there was no muscle spasm. Strength was normal; sensation was decreased; reflexes were hyperactive; and straight leg raising was negative. The Veteran was noted to have constant pain, moderate, as well as moderate paresthesias and/or dysthesias. He did not have intervertebral disc syndrome. EMG testing in October 2012 revealed moderate bilateral L5 radiculopathy, worse on the right. There was no electrodiagnostic evidence of additional radiculopathies, polyneuropathy, or distal compressive peripheral nerve injuries. Although the medical evidence prior to October 23, 2012 is somewhat confusing, because there is evidence both for and against a compensable rating for radiculopathy of the left lower extremity, the Board finds that the evidence as a whole more nearly approximates the criteria for moderate radiculopathy of the left leg beginning December 11, 2007. A compensable rating is not warranted prior to December 11, 2007 because there were no complaints or findings of radiculopathy on evaluation in May 2006, when the Veteran noted that his low back pain was non-radiating. The Veteran initially complained of radiating pain down the left leg on VA examination on December 11, 2007, and radiculitis on the left was diagnosed. Despite findings of no sensory or motor impairment of the left leg on examinations in October 2008 and May 2009, it was concluded by the examiner on VA examination in October 2008 that the Veteran had severe radiculopathy of the left leg. This findings was subsequently supported by EMG testing in October 2012, which was reported to show moderate bilateral L5 radiculopathy. A rating of 60 percent for severe neuritis under Diagnostic Code 8620 is not warranted beginning December 11, 2007 because there would need to be evidence of marked muscular atrophy, which is not shown. The Board also finds that a rating of 40 percent for moderately severe neuritis is not warranted because the medical evidence did not show organic changes, such as loss of reflexes, muscle atrophy, and sensory disturbances. A rating in excess of 20 percent is not warranted beginning October 23, 2012 because the evidence does not show more than moderate neuritis of the left leg. When examined in October 2012, strength was normal and straight leg raising was negative. EMG testing in October 2012 revealed moderate L5 radiculopathy. The diagnosis was moderate paresthesias and/or dysthesias. Additional Considerations The Board acknowledges the Veteran's subjective complaints of low back pain, radiculopathy, and functional limitations. However, while the Veteran is competent and credible with regard to his subjective complaints, the Board gives more weight to the objective medical evidence with regard to the severity of his lumbosacral spine and neurological disability as reflected in the VA examination reports and other treatment records on file. In fact, as noted on VA examination in October 2012, he was able to perform repetitive testing without loss and without muscle spasm. Although sensation was decreased and reflexes were hyperactive, muscle strength in the lower extremities was normal and straight leg raising was negative. The Board has also considered whether the Veteran's claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the Veteran's service-connected lumbosacral strain is contemplated and reasonably described by the rating criteria, to include the General Rating Formula, which account for pain, stiffness, limitation of motion, and functional limitations associated with disability of the spine. Id. The Veteran's radiculopathy of the left leg is also reasonable described by the rating criteria. The Veteran does not have symptoms associated with either disability that have been left uncompensated or unaccounted for by the assignment of a schedular rating. See Thun, 22 Vet. App. at 115. Accordingly, a comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that either the Veteran's lumbosacral strain or radiculopathy of the left leg presents "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the available schedular evaluations are adequate to rate the disabilities. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. Finally, the Board finds that the preponderance of the evidence weighs against the Veteran's claims for lumbosacral strain, for a compensable evaluation prior to December 11, 2007 for radiculopathy of the left leg, and for an evaluation in excess of 20 percent beginning October 23, 2012 for radiculopathy of the left leg. Consequently, the benefit-of-the-doubt rule does not apply to these issues. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102; 4.3 (2012); Gilbert, 1 Vet. App. 49, 55-57 (1990). Earlier Effective Date Claim The Veteran and his representative have contended that an effective date prior to March 30, 2007 is warranted for the grant of a 20 percent rating for lumbosacral strain because the March 30, 2007 statement from the Veteran should have been considered a notice of disagreement (NOD) to the June 2006 rating decision, which granted an increased rating of 10 percent for lumbosacral strain, effective February 26, 2005, rather than a new claim for an increased rating. The law with regard to determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a), (b)(2) (West 2002) and 38 C.F.R. § 3.400(o) (2012). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by the regulation, which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r) (2012). An exception to that general rule applies under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that circumstance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998). The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to a higher disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). The date of entitlement to an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). The Veteran was separated from military service on February 25, 2005. A claim for service connection for a low back disability was received by VA on February 9, 2005. Service connection for lumbosacral strain was granted by rating decision in August 2005, and a noncompensable rating was assigned effective February 26, 2005, the day following service discharge. A statement from the Veteran was received by VA in February 2006. A June 2006 rating decision granted a 10 percent rating for lumbosacral strain, effective February 26, 2005. The Veteran was notified of this rating decision later in June 2006. The next correspondence from the Veteran was a statement received on March 30, 2007 in which the Veteran noted that he was applying for an increase in his VA disability compensation because his lower back condition "has gotten worse at this time." A January 2008 rating decision granted a 20 percent rating for lumbosacral strain, effective March 30, 2007; a 100 percent evaluation, effective from June 28, 2007 through August 31, 2007, based on surgical or other treatment necessitating convalescence; and restoration of the 20 percent evaluation beginning September 1, 2007. An NOD is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. A liberal standard is applied in determining whether a communication constitutes a NOD. While special wording is not required, the communication in question must at least refer to the rating decision in question and must be in terms which can be construed reasonably as disagreement with that determination and a desire for appellate review. Thus, an NOD relates to a specific adjudicative determination on a specific date. 38 C.F.R. § 20.201 (2012); See also Gallego v. Principi, 283 F.3d 1309, 1313-15 (Fed. Cir. 2002) (upholding the validity of the regulatory requirement that an NOD include "terms that can be reasonably construed ... as a desire for appellate review"); Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991). In Gallegos, the Federal Circuit explained that a valid NOD must (1) express disagreement with a specific determination of the agency of original jurisdiction; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO's decision, and; (5) be filed by the claimant or the claimant's representative. See Gallegos, 283 F.3d at 1309. The actual wording of the communication and the context in which it was written determines whether a written communication constitutes a valid NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). In this case, the March 2007 statement from the Veteran does not refer to the June 2006 rating decision in question and does not indicate a disagreement with any specific rating decision. Rather, the statement specifically notes that the Veteran was applying for an increased rating because his lower back disability "has gotten worse at this time." Consequently, despite the contention that the Veteran's March 2007 statement should be considered a NOD to the June 2006 rating decision, it does not contain the above-noted factors constituting a valid NOD and was correctly considered by the RO to be a claim for increase. Therefore, because the earliest date for a increased rating of 20 percent for lumbosacral strain would be March 30, 2007, the date of claim, which is the date assigned, an effective date prior to March 30, 2007 for a rating of 20 percent for lumbosacral strain is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 20 percent for lumbosacral strain prior to March 7, 2011 is denied. Entitlement to a 40 rating for lumbosacral strain beginning March 7, 2011 is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a compensable rating prior to December 11, 2007 for radiculopathy of the left leg is denied. Entitlement to a 20 percent rating beginning December 11, 2007 for radiculopathy of the left leg is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to a rating in excess of 20 percent beginning October 23, 2012 for radiculopathy of the left leg is denied. Entitlement to an effective date prior to March 30, 2007 for the grant of a 20 percent rating for lumbosacral strain is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs