Citation Nr: 1315895 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-36 621 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable disability evaluation prior to November 21, 2012, and in excess of 10 percent thereafter, for intevertebral disc disease of the lumbar spine. 2. Entitlement to a disability evaluation in excess of 10 percent for right lower extremity radiculopathy. 3. Entitlement to a compensable disability evaluation for left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1985 to May 1990. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted service connection for intevertebral disc disease of the lumbar spine and assigned a non-compensable evaluation. In December 2011, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. During the course of the appeal, by rating decision in December 2012, the RO granted an increased 10 percent disability rating for intevertebral disc disease, effective November 21, 2012. Within the same rating decision, the RO granted service connection for right lower extremity radiculopathy with a disability rating of 10 percent effective January 4, 2012, and service connection for left lower extremity radiculopathy with a noncompensable disability rating effective January 4, 2012. However, inasmuch as higher ratings are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. The Board has additionally characterized the appeal as now encompassing the three matters set forth on the title page. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board additionally notes that the issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) was denied in a December 2009 rating decision. The Board recognizes that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). That said, claims for increased evaluations and TDIU claims may be separately adjudicated. See id. at 454. In this case, following the December 2009 rating decision the claims file does not indicate the Veteran has expressed a desire to appeal the TDIU claim as required pursuant to 38 C.F.R. § 20.1103. As will be discussed below, while the Veteran's low back pain and radiculopathy causes him to miss some time from work, the Veteran remains employed as a police officer. Therefore, the issue is not on appeal. FINDINGS OF FACT 1. For the period prior to November 21, 2012, the evidence of record shows objective evidence of painful motion with forward flexion no worse than 90 degrees and combined range of motion no worse than 240 degrees and muscle spasm; the evidence does not show muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. 2. For the period beginning November 21, 2012, the evidence of record indicates that the Veteran's lumbar spine disability is manifested by pain and limitation of motion with forward flexion no worse than 70 degrees and combined range of motion no worse than 170 degrees; the evidence does not show muscle spasm or guarding severe enough to result in abnormal gait or spinal contour. 3. Throughout the period of appeal, the evidence of record shows right lower extremity radiculopathy manifested by mild intermittent numbness; symptoms consistent with moderate incomplete paralysis of the sciatic nerve are not shown. 4. Throughout the period of appeal, the evidence of record shows left lower extremity radiculopathy manifested by mild intermittent numbness; symptoms consistent with moderate incomplete paralysis of the sciatic nerve are not shown. CONCLUSIONS OF LAW 1. For the period prior to November 21, 2012, the criteria for a 10 percent evaluation for the Veteran's service-connected intevertebral disc disease of the lumbar spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for an evaluation in excess of 10 percent for the Veteran's service-connected intevertebral disc disease of the lumbar spine have not been met at any time during the period of appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 3. Beginning December 10, 2007, the criteria for a separate 10 percent evaluation for service-connected right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.124a, Diagnostic Code 8620 (2012). 4. Beginning December 10, 2007, the criteria for a separate 10 percent evaluation for service-connected left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.40, 4.124a, Diagnostic Code 8620 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Stegall Concerns In February 2012, the Board remanded the appeal to the RO, via the Appeals Management Center, for further development. The Board instructed the RO to clarify if there were further outstanding records from Dr. J.L.R. to be obtained, and the Veteran was to be scheduled for an additional VA examination. In July 2012, the Veteran and his attorney were sent letters from the RO requesting clarification concerning the Veteran's treatment from Dr. J.L.R.. Subsequently, additional treatment records were received from Dr. J.L.R. and Total Health Compliance Group and associated with the claims file. Additionally, the Veteran underwent the requested VA examination in November 2012. As such, the Board finds that there has been substantial compliance with the requirements articulated in the Board's prior remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. The Veterans Claims Assistance Act (VCAA) With regard to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). For initial rating claims, where service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As noted above, the Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his claims. 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) (2012) requires that the VLJ/AVLJ/DRO who chairs a hearing fulfill two duties to comply with the above 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. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determinations, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, the Veteran has not 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 hearings. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. The Board notes that during the December 2011 hearing, the Veteran gave testimony concerning both the orthopedic and neurologic manifestations of his low back disability. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board additionally notes that in December 2012, the Veteran requested an additional Board hearing. However, in accordance with 38 C.F.R. § 20.1507 (2012), the Veteran is entitled to one hearing before the Board. As his prior December 2011 hearing discussed both the orthopedic and neurologic manifestations of his low back disability, the Veteran is not entitled to an additional hearing. The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's VA and private treatment records have been obtained to the extent possible and associated with the claims file. The Veteran has at no time referenced any further outstanding records that he wanted VA to obtain. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with VA examinations with regard to his service-connected lumbar spine disability, most recently in November 2012. There is no objective evidence indicating that there has been a material change in the severity of this service-connected disability since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate testing, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The information obtained during this examination is sufficient to rate the Veteran's disability under the appropriate diagnostic criteria. In light of the foregoing, the Board concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). III. Increased Initial Rating A. General Law and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. As these claims are on appeal from a decision that granted service connection and assigned an initial rating, "staged" ratings may be assigned, if warranted by the evidence. Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). B. Intevertebral Disc Disease The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability 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 disability rating is assigned 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 assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2012). Notes appended to the rating formula for diseases and injuries of the spine specify that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note (2). Provided, however, that, 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 generally recognized by VA. Id., Note (3). Further, the term "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"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Note (5) provides that, 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) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). Spine conditions rated under DC 5243, for intevertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intevertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. "Incapacitating episodes" was defined in Note (1) as a period of acute signs and symptoms due to intevertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate diagnostic codes if it would result in a higher combined evaluation for the disability. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform 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. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Service connection was originally granted for intevertebral disc disease in an October 2008 decision. This decision established a noncompensable disability rating, effective December 10, 2007 (the date of claim). The present claim for a higher rating stems from that decision. During the course of the appeal, by rating decision in December 2012, the RO granted an increased 10 percent disability rating for intevertebral disc disease, effective November 21, 2012. Within the same rating decision, the RO awarded service connection for right lower extremity radiculopathy with a disability rating of 10 percent effective January 4, 2012, and service connection for left lower extremity radiculopathy with a noncompensable disability rating effective January 4, 2012. A medical slip indicates that the Veteran was excused from work due to medical care from December 21, 2007, through December 29, 2007. Lay statements from R.C. and R.J. submitted in February 2008 reflect that the Veteran complained of pain in his back. On VA examination in August 2008, the examiner noted that the Veteran complained of low back pain and radiculopathic pain. The report contains the Veteran's comment that his last low back pain attack occurred about one year previously. He said that he took Motrin during his attacks but otherwise did not use medication for his back. The examiner noted that there was no history of urinary incontinence, urgency, frequency, or nocturia. There was no history of fecal incontinence or erectile dysfunction. Additionally, there was no history of numbness, paresthesias, leg or foot weakness, falls, unsteadiness, fatigue, or decreased motion. Stiffness, spasms, and moderate pain were reported. Flare-ups were noted to happen once a year. No incapacitating episodes were reported. The examiner observed that the Veteran had normal posture and gait. No ankylosis was present. Sensory examination of the lower extremities yielded normal results. Forward flexion of the thoraco-lumbar spine was to 90 degrees. Extension was to 30 degrees. Left and right lateral flexion and rotation were all to 30 degrees. The examiner found no objective evidence of pain on active ranges of motion. There were no additional limitations exhibited after repetitive testing. It was noted that the Veteran had lost less than one week of work during the prior 12-month period due to low back pain. The diagnosis given was mild intevertebral disc disease. A private treatment record from March 2009 contains the Veteran's complaints of numbness in his right lower extremity. He denied experiencing bowel, bladder, or erectile dysfunction symptoms. The examiner found that the Veteran's perception of light touch and pinprick in the lower extremities was within normal limits. The Veteran was able to toe/heel walk without difficulty. The examiner gave diagnoses of lumbar strain and lumbar radiculopathy. A private MRI taken in March 2009 revealed a broad-based asymmetric right bulging annulus at L3-4, a central disc herniation at L4-5, and a central disc herniation at L5-S1. Another private treatment record from April 2009 contains the Veteran's complaints of numbness in his right lower extremity. He denied experiencing bowel, bladder, or erectile dysfunction symptoms. The Veteran reported experiencing spasms in his lumbar muscles. The examiner found that the Veteran's perception of light touch and pinprick in the lower extremities was within normal limits. The Veteran was able to toe/heel walk without difficulty. A physical therapy record from April 2009 reflects that the Veteran experienced back pain. The therapist indicated that during activity, the Veteran's pain rated a five on a 0 (low) to 10 (high) pain scale. At rest, the Veteran's pain rated a two on the same scale. An October 2009 neurological consultation report contains the Veteran's reports of frequent urination and occasional possible fecal incontinence. He also complained of low back pain and some numbness over the right and left leg. Sensory examination yielded normal results. Cerebellar examination revealed no abnormalities. The examiner gave an assessment of lumbar disc radiculopathy and prescribed Neurontin and Motrin. Further EMG testing resulted in an abnormal study with electrical evidence of bilateral peroneal neuropathy and sensory neuropathy. A medical slip indicates that the Veteran was excused from work due to medical care from October 29, 2009, to November 2, 2009. A December 2009 follow-up neurological consultation report contains the Veteran's report that his symptoms had subsided since his prior visit. The Veteran denied experiencing incontinence or urinary urgency. The examiner conducted tests and concluded that the Veteran had lumbar disc radiculopathy. The Veteran's disc herniations were noted, and the examiner concluded that at the current time, the Veteran was asymptomatic. It was further noted that the Veteran's condition could be accompanied by intermittent exacerbations of pain. The Veteran underwent private examination in December 2010. The examiner recorded the Veteran's complaint of extreme pain two to three times per year. The pain was described as rating an 8 on a 0 (low) to 10 (high) pain scale and radiated down both of the Veteran's legs. It was noted that the Veteran worked as a state trooper. The examiner found no paralumbar tenderness. The spinal curves were normal. There was no scoliosis or spinal point tenderness. No ankylosis was present. Forward flexion of the lumbar spine was to 100 degrees. Extension was to 25 degrees. Lateral flexion was to 25 degrees. The examiner found no antalgic gait. Sensation was intact to fine touch and tactile senses. The examiner wrote that the Veteran had incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A lay statement from J.C.P. submitted in November 2011 contains observations of the Veteran's pain. At the Veteran's December 2011 Board hearing, it was reported that the Veteran worked full-time as a police officer. He stated that he had missed approximately six days of work in the prior year due to back pain. He said he had been given pain medication by a doctor. He mentioned that he had been treated for sciatica. He rated his pain as a seven on a 0 (low) to 10 (high) pain scale. He was constantly aware of the pain in his back. He mentioned that he had been promoted at work and worked a desk job. He said he experienced numbness in his legs once a week. Doctors had restricted him from running and squatting but had not prescribed bed rest. On VA examination in November 2012, the Veteran complained of a constant soreness with extreme flare-ups which happened about twice a year. He reported an occasional numbness in either his right or left big toe and right thigh. He said he had difficulty with prolonged sitting. He took Motrin or aspirin as needed and walked for exercise. The examiner observed forward flexion of the lumbar spine to 70 degrees with objective evidence of pain at 40 degrees. Extension was to 15 degrees with pain. Right lateral flexion was to 10 degrees with pain. Left lateral flexion was to 15 degrees with pain. Right lateral rotation was to 30 degrees with pain. Left lateral rotation was to 30 degrees with pain. All ranges of motion were the same after repetitive testing; however, pain was present. Spasm was present but did not result in an abnormal gait or spinal contour. Sensory examination was normal with the exception of decreased sensation in the right foot. The examiner indicated that the Veteran had moderate numbness in both the right and left lower extremity due to radiculopathy. No other neurologic abnormalities were present. The examiner further noted that the Veteran had not had any incapacitating episodes over the prior 12 months due to intevertebral disc disease. It was noted that the Veteran worked as a state trooper and had difficulty sitting for extended periods of time. With regard to assigning a compensable rating under the General Rating Formula for Diseases and Injuries of the Spine prior to November 21, 2012, the Board notes that that there is no evidence of record reflecting that the Veteran had forward flexion of the thoracolumbar spine limited to greater than 60 degrees but not greater than 85 degrees or a combined range of motion of the thoracolumbar spine not greater than 235 degrees. However, there is evidence that the Veteran experienced muscle spasm. See August 2008 VA examination report, April 2009 private treatment record. However, the spasm did not result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, no ankylosis has been shown. As such, the criteria for a disability rating of 10 percent, but no higher, have been met for the time period prior to November 12, 2012 under the General Rating Formula for Disease and Injuries of the Spine. With regard to assigning a rating greater than 10 percent under the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that that there is no evidence of record reflecting that the Veteran has forward flexion of the thoracolumbar spine limited to greater than 30 degrees but not greater than 60 degrees or a combined range of motion of the thoracolumbar spine not greater than 120 degrees at anytime during the course of the appeal. Additionally, there is no objective evidence of record reflecting that the Veteran has an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board acknowledges that the November 2012 VA examiner indicated that the Veteran experienced pain at 40 degrees of forward flexion of the lumbar spine. However, even with pain, the Veteran was able to perform forward flexion to 70 degrees, and the criteria of the General Rating Formula are to be applied with or without symptoms such as pain and stiffness. Moreover, the Veteran's gait was noted as normal. Thus, the Board concludes that the weight of the evidence is against a finding of symptomatology sufficient to result in an abnormal gait or abnormal spinal contour. Accordingly, a rating in excess of 10 percent increased rating cannot be assigned under the General Rating Formula for Disease and Injuries of the Spine at any time during the course of the appeal. With regard to applying the Formula for Rating Intevertebral Disc Syndrome Based on Incapacitating Episodes, the Board finds no objective medical evidence in the record reflecting that the Veteran has been prescribed bedrest by a physician for his service-connected lumbar spine disability for any period of time on appeal. Although the December 2010 private examiner wrote that the Veteran had incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, the evidence does not show that these incapacitating episodes required bed rest prescribed by a physician. Additionally, although the Veteran missed work from December 21, 2007, through December 29, 2007, and from October 29, 2009, to November 2, 2009, for medical reasons, the evidence does not show that he was prescribed bed rest by a physician for his back disability for those periods of time. As such, an increased rating cannot be assigned at any time for the period of appeal under the Formula for Rating Intevertebral Disc Syndrome Based on Incapacitating Episodes. With regard to assigning a higher disability rating according to 38 C.F.R. § 4.40 and 4.45, the Board notes that the Veteran has reported a history of stiffness and pain at each of his examinations. However, the examination reports show that even with pain, there was no additional limitation of motion after multiple repetitions of range of motion. See August 2008 and November 2012 VA examination reports. Therefore, as there is no objective evidence of record reflecting that the Veteran experiences additional functional loss or limitation of motion due to symptoms such as pain, weakness, weakened movement, excess fatigability, or incoordination, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 10 percent at any time throughout the period of appeal as contemplated by the holding in Deluca. The Board also notes that, according to Note (1), any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, must be evaluated separately under the appropriate diagnostic code. Although an October 2009 private neurology report contains the Veteran's reports of frequent urination and occasional possible fecal incontinence, these reported symptoms appear to have been acute and not representative of an underlying neurologic abnormality, as in December 2009, the Veteran told the same neurologic examiner that he did not experience incontinence or urinary urgency. Additionally, the August 2008 and November 2012 VA examiners both indicated that there was no history of urinary incontinence, urinary urgency or frequency, or fecal incontinence. As such, the preponderance of the evidence shows that the Veteran does not experience a neurologic abnormality represented by bowel or bladder impairment due to his service-connected back disability. The Veteran's complaints of radicular pain will be discussed below. C. Radiculopathy of the bilateral lower extremities As noted above, although service connection was granted for intevertebral disc disease effective December 10, 2007, service connection for right lower extremity radiculopathy with a disability rating of 10 percent was granted effective January 4, 2012, and service connection for left lower extremity radiculopathy with a noncompensable disability rating was granted effective January 4, 2012. The Veteran's radiculopathy of the right and left lower extremities are rated under Diagnostic Code 8720 for neuralgia of the sciatic nerve. Peripheral neuralgia, characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the scale provided for injury of the nerve involved (sciatic in this case), with a maximum equal to moderate, incomplete, paralysis. 38 C.F.R. § 4.124. 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. Incomplete paralysis that is mild is rated as 10 percent disabling; a 20 percent disability evaluation is warranted for incomplete paralysis that is moderate; a 40 percent disability evaluation is warranted for incomplete paralysis that is moderately severe; and a 60 percent disability evaluation is warranted for incomplete paralysis that is severe, with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all of the evidence to ensure that a decision is equitable and just. 38 C.F.R. § 4.6. As reviewed above, the evidence reflects that the Veteran has exhibited symptoms of bilateral lower extremity radiculopathy throughout the period on appeal. The August 2008 VA examiner wrote that the Veteran experienced radiculopathy. Private treatment records from March 2009 and April 2009 contain the Veteran's complaints of numbness in his right lower extremity; however, the examiner additionally found that the Veteran's perception of light touch and pinprick in the lower extremities were within normal limits. An October 2009 neurological consultation report contains the Veteran's reports of numbness over both the right and left leg. The same neurological examiner noted in December 2009 that the Veteran was asymptomatic, although his condition could be accompanied by intermittent exacerbations of pain. On private examination in December 2010, the examiner recorded the Veteran's complaint of extreme pain that radiated down both of his legs two to three times per year; the examiner further noted that sensation was intact to fine touch and tactile senses. At his December 2011 Board hearing, the Veteran reported experiencing numbness in his legs approximately once per week. The November 2012 VA examiner remarked that the Veteran's sensory examination was normal with the exception of decreased sensation in the right foot. The further examiner indicated that the Veteran had moderate numbness in both the right and left lower extremity due to radiculopathy. Extending every reasonable doubt to the Veteran, the Board finds that the Veteran has experienced radicular symptoms of each lower extremity throughout the period of appeal most appropriately rated as mild. Although the November 2012 VA examiner described the Veteran's numbness in both lower extremities as "moderate," there is no evidence of actual incomplete paralysis of the nerve. Additionally, the evidence of record reflects that the Veteran's symptoms of radiculopathy are intermittent. The Veteran himself has testified that the numbness in his lower extremities is not constant. See December 2011 Board hearing transcript. Further, the one neurologist of record, while noting that the Veteran had signs and symptoms of lumbar disc radiculopathy, opined after performing an EMG that the Veteran was asymptomatic. See December 2009 private neurology report. However, the same neurologist did allow that the Veteran's condition could be accompanied by intermittent exacerbations of pain. As the evidence shows that the Veteran has experienced intermittent numbness of each lower extremity throughout the period of appeal, the Board finds that separate 10 percent evaluations are warranted for right and left right lower extremity radiculopathy most appropriately rated as mild. The Board further finds that these separate ratings should be effective December 10, 2007, as these ratings are awarded under Note (1) to the General Rating Formula for Disease and Injuries of the Spine. IV. Extraschedular Considerations In reaching these conclusions, the Board also has considered whether the Veteran is entitled to a greater level of compensation for the disabilities at issue on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected intevertebral disc disease and radiculopathy of the bilateral lower extremities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability levels and symptomatology. Since the available schedular evaluations adequately contemplate the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of the Veteran's service-connected intevertebral disc disease and bilateral lower extremity radiculopathy for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A 10 percent evaluation, but no higher, for intevertebral disc disease is granted throughout the entire period of appeal, subject to the regulations governing the award of monetary benefits. A separate 10 percent evaluation for right lower extremity radiculopathy is granted effective December 10, 2007, subject to the regulations governing the award of monetary benefits. A separate 10 percent evaluation for left lower extremity radiculopathy is granted effective December 10, 2007, subject to the regulations governing the award of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs